Section 504 Procedures and Forms
MICHIGAN CITY AREA SCHOOLS
Section 504 Procedures
Section 504 is the 504th section of the Rehabilitation Act of 1973. Of the many hallmarks of this legislation, this Act provides a free appropriate public education for students enrolled in public schools. Its sister, the Americans with Disability Act (ADA) of 1990 is to the private sector what Section 504 is to the public especially when it comes to providing access to programs, activities, services, and facilities.
The following serves as a compliment to the Tutorial on Section 504 and this operationalizes local procedures.
1. Buildings must post and add to their Student/Parent Handbook the following notices:
a. Section 504 Compliance Plan;
b. Parent Notice for Section 504;
c. Notice to Our Community for Section 504;
d. Notice of Procedural Safeguards /Student/Parent Rights and Options.
The “notices” need to be posted in all buildings where the public may view them and should be added to Student/Parent Handbooks.
2. Section 504 protection is considered under the following conditions:
a. The student’s issues have been accommodated through the Response to Instruction (Academics)/Intervention (Behavior) MCAS process.
b. The student has been assessed for potential special education, but found ineligible;
c. If a parent refers a child for Section 504 and they suspect their child may have a disability, the referral must first go through special education determination.
d. Medical issues that may be life threatening or will require accommodations. In this case a Medical plan can be utilized as long as the parent/guardian has participated in the determination, there is a physician’s report (not a prescription note), and the parents have received their rights and options in oral and written form. In this case, the nurse can meet with the parent without the building administrator, but they are responsible to communicate the medical needs/accommodations, including any training necessary so that the child is provided a free appropriate public education in the least restrictive environment.
3. Response to Instruction/Behavioral Intervention/Medical concerns requires parental participation. Though parents do not need to give permission for this local procedure, they must be active participants. It is imperative that there is documentation that the parent understands what the school is doing to identify strategies or methodology to remediate concerns.
4. Referrals for Section 504 are generated as a result of response to instruction/intervention. It must be assumed that the parents are aware of what the school is doing at this step (see step #3). Once a building-based team’s accommodations have surpassed the intensity of Tier III and the student needs a greater intensity a Referral for Special Education or Section 504 Consideration may be completed. The documentation from RTI will be attached as will other information including testing, behavior analyses, medical data, etc.
5. Once a referral is documented send the Parent Notice of a Section 504 Referral to the parent/guardian. Schedule a meeting with the parent/guardian and explain the RTI data gained and if there is a need for additional data (evaluation) then the parents must be notified. Parents do not need to provide permission as long as they have participated prior to this point (required under RTI procedures). Provide the Procedural Safeguards/Parents Rights and Options and set the date for the Section 504 conference.
6. An evaluation under Section 504 is not the same as an evaluation for special education and may consist of classroom performance, state and local assessment data, medical and/or behavior analyses. Students that do not qualify for special education may qualify for Section 504 and the evaluative data for the special education consideration should be used for the 504 consideration. Remember, the standards for special education include the impairment (13 different categories) is adversely affecting educational performance. The standard for Section 504 is broader in that the physical or mental impairment substantially limits one or more major life activities. Section 504 eligibility may include direct involvement from the home whereas special education is school-performance-based. So when considering Section 504 eligibility after special education eligibility is not recommended, the evaluative data is utilized under the 504 standard. This deliberation is conducted right after the special education case conference committee meeting using the forms for Section 504 (see the discussion below).
7. If a Referral is tendered for Section 504 and an evaluation for special education is not the route chosen (only if there is not a disability suspected) and once the evaluation and data gathering is completed, send the Section 504 Notice of Conference to the parent/guardian inviting them to attend the conference where eligibility will be discussed.
8. A Section 504 conference should be held with the parents participation and include a common sense grouping of who should be in attendance. The student’s teacher(s) should be on hand to discuss the needs as should the Nurse if there are medical issues. Using the Section 504 Conference Report form answer the questions and document the participants. If the student is eligible then write an accommodation plan.
9. The Section 504 Accommodation Plan only states what the problem is and what will be done about it. Be sure to document any training that is needed for the staff, evacuation plan if the student cannot follow the building’s plans, how the plan will be communicated to the staff members, and accommodations that are needed. If the issue is strictly medical in nature then the school nurse can document the abovementioned requirements on their medical plan.
10. Students eligible for Section 504 and require accommodations in assessments need to follow the same requirements as those with an IEP.
· There must be data to support the need for accommodations in testing;
· The accommodations for testing need to be the same as are needed for daily/weekly testing.
11. There are no requirements for annual reviews for Section 504 placements, however, reviews, according to MCAS procedures are required at transition points (i.e. moving to another school, movement from primary to intermediate grades, etc.), data suggests the need for a more detailed plan, and/or the committee feels there is no further need for a Section 504 plan, etc.
12. Students under a Section 504 plan may be suspended up to 10 school days per year. When expulsion is considered, a manifest determination conference must be held to determine if a “causal” relationship exists. If the mental or physical impairment, as per the documentation, “caused” the violation then the student cannot be expelled. If there is no “causal” relationship the student must receive the same due process rights as any other student. In this regard the Section 504 student is unlike a student with a disability as per special education. There is one caveat, however. If a student under Section 504 violates the school districts drug/alcohol and weapons possession policy the student may move immediately to due process without a manifest determination conference. This does not apply to students with a disability according to special education, however.
13. Students with disabilities according to special education are already Section 504 eligible and special education procedures and processed supersede Section 504. There is no need to have an IEP and a Section 504 plan for a given child.
14. Those students with medical conditions that require a Section 504 (medical) plan will be under the care of medical professionals. Although there is a category under special education for Other Health Impairment this must adversely affect educational performance. Section 504, again may affect a broader view of life—major life functions, such as breathing, seeing, hearing, walking, etc.
15. Students engaged in extra-curricular activities may have a Section 504 plan and this plan needs to address how the impairment may be affected by athletic or club, to name a few activities can be enhanced through accommodations. Remember to communicate the plan to extra-curricular coaches, sponsors, or other leaders.
Section 504 Evaluation. 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.
Section 504 FAQ
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.
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.
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.
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.
Does OCR 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 student. The Section 504 regulatory provision 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.
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.
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.
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.
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 an initial evaluation under the Individuals with Disabilities Education Act (IDEA), but demands a Section 504 plan for a student without further evaluation?
A school district must evaluate a student prior to providing services under Section 504. 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 seek 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 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.
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).
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.
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.
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 another major life activity 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 view 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.
In the Amendments Act (see FAQ 1), Congress clarified that an individual is not “regarded as” an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
Is an impairment that is episodic or in remission a disability under Section 504?
Yes, under certain circumstances. In the Amendments Act (see FAQ 1), Congress clarified that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. A student with such an impairment is entitled to a free appropriate public education under Section 504.
Once a student 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.
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.
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.
As noted in FAQ 34, in the Amendments Act (see FAQ 1), Congress clarified that an individual is not “regarded as” an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
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 that 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. There is no Section 504 bar to the receiving school district honoring the previous IEP during the interim period. Information about IDEA requirements when a student transfers is available from the Office of Special Education and Rehabilitative Services at http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C
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.
STUDENTS 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; or (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 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 regulatory provision 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 regulatory provision 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 regulations 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. In the Amendments Act (see FAQ 1), Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a non-exhaustive list of examples of “major bodily functions” that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The Section 504 regulatory provision, though not as comprehensive as the Amendments Act, is still valid – the Section 504 regulatory provision’s list of examples of major life activities is not exclusive, and an activity or function not specifically listed in the Section 504 regulatory provision can nonetheless be a major life activity.
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 post-secondary?
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).
At the post-secondary educational level, a qualified student 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.
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.
At the post-secondary level, the recipient is required to provide students 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.
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.
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 Section 504 protection, any student who is currently engaging in the illegal use of drugs when a covered entity acts on the basis of such use. (There are exceptions for persons in rehabilitation programs who are no longer engaging in the illegal use of drugs).
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.
Section 504 Procedures
Section 504 is the 504th section of the Rehabilitation Act of 1973. Of the many hallmarks of this legislation, this Act provides a free appropriate public education for students enrolled in public schools. Its sister, the Americans with Disability Act (ADA) of 1990 is to the private sector what Section 504 is to the public especially when it comes to providing access to programs, activities, services, and facilities.
The following serves as a compliment to the Tutorial on Section 504 and this operationalizes local procedures.
1. Buildings must post and add to their Student/Parent Handbook the following notices:
a. Section 504 Compliance Plan;
b. Parent Notice for Section 504;
c. Notice to Our Community for Section 504;
d. Notice of Procedural Safeguards /Student/Parent Rights and Options.
The “notices” need to be posted in all buildings where the public may view them and should be added to Student/Parent Handbooks.
2. Section 504 protection is considered under the following conditions:
a. The student’s issues have been accommodated through the Response to Instruction (Academics)/Intervention (Behavior) MCAS process.
b. The student has been assessed for potential special education, but found ineligible;
c. If a parent refers a child for Section 504 and they suspect their child may have a disability, the referral must first go through special education determination.
d. Medical issues that may be life threatening or will require accommodations. In this case a Medical plan can be utilized as long as the parent/guardian has participated in the determination, there is a physician’s report (not a prescription note), and the parents have received their rights and options in oral and written form. In this case, the nurse can meet with the parent without the building administrator, but they are responsible to communicate the medical needs/accommodations, including any training necessary so that the child is provided a free appropriate public education in the least restrictive environment.
3. Response to Instruction/Behavioral Intervention/Medical concerns requires parental participation. Though parents do not need to give permission for this local procedure, they must be active participants. It is imperative that there is documentation that the parent understands what the school is doing to identify strategies or methodology to remediate concerns.
4. Referrals for Section 504 are generated as a result of response to instruction/intervention. It must be assumed that the parents are aware of what the school is doing at this step (see step #3). Once a building-based team’s accommodations have surpassed the intensity of Tier III and the student needs a greater intensity a Referral for Special Education or Section 504 Consideration may be completed. The documentation from RTI will be attached as will other information including testing, behavior analyses, medical data, etc.
5. Once a referral is documented send the Parent Notice of a Section 504 Referral to the parent/guardian. Schedule a meeting with the parent/guardian and explain the RTI data gained and if there is a need for additional data (evaluation) then the parents must be notified. Parents do not need to provide permission as long as they have participated prior to this point (required under RTI procedures). Provide the Procedural Safeguards/Parents Rights and Options and set the date for the Section 504 conference.
6. An evaluation under Section 504 is not the same as an evaluation for special education and may consist of classroom performance, state and local assessment data, medical and/or behavior analyses. Students that do not qualify for special education may qualify for Section 504 and the evaluative data for the special education consideration should be used for the 504 consideration. Remember, the standards for special education include the impairment (13 different categories) is adversely affecting educational performance. The standard for Section 504 is broader in that the physical or mental impairment substantially limits one or more major life activities. Section 504 eligibility may include direct involvement from the home whereas special education is school-performance-based. So when considering Section 504 eligibility after special education eligibility is not recommended, the evaluative data is utilized under the 504 standard. This deliberation is conducted right after the special education case conference committee meeting using the forms for Section 504 (see the discussion below).
7. If a Referral is tendered for Section 504 and an evaluation for special education is not the route chosen (only if there is not a disability suspected) and once the evaluation and data gathering is completed, send the Section 504 Notice of Conference to the parent/guardian inviting them to attend the conference where eligibility will be discussed.
8. A Section 504 conference should be held with the parents participation and include a common sense grouping of who should be in attendance. The student’s teacher(s) should be on hand to discuss the needs as should the Nurse if there are medical issues. Using the Section 504 Conference Report form answer the questions and document the participants. If the student is eligible then write an accommodation plan.
9. The Section 504 Accommodation Plan only states what the problem is and what will be done about it. Be sure to document any training that is needed for the staff, evacuation plan if the student cannot follow the building’s plans, how the plan will be communicated to the staff members, and accommodations that are needed. If the issue is strictly medical in nature then the school nurse can document the abovementioned requirements on their medical plan.
10. Students eligible for Section 504 and require accommodations in assessments need to follow the same requirements as those with an IEP.
· There must be data to support the need for accommodations in testing;
· The accommodations for testing need to be the same as are needed for daily/weekly testing.
11. There are no requirements for annual reviews for Section 504 placements, however, reviews, according to MCAS procedures are required at transition points (i.e. moving to another school, movement from primary to intermediate grades, etc.), data suggests the need for a more detailed plan, and/or the committee feels there is no further need for a Section 504 plan, etc.
12. Students under a Section 504 plan may be suspended up to 10 school days per year. When expulsion is considered, a manifest determination conference must be held to determine if a “causal” relationship exists. If the mental or physical impairment, as per the documentation, “caused” the violation then the student cannot be expelled. If there is no “causal” relationship the student must receive the same due process rights as any other student. In this regard the Section 504 student is unlike a student with a disability as per special education. There is one caveat, however. If a student under Section 504 violates the school districts drug/alcohol and weapons possession policy the student may move immediately to due process without a manifest determination conference. This does not apply to students with a disability according to special education, however.
13. Students with disabilities according to special education are already Section 504 eligible and special education procedures and processed supersede Section 504. There is no need to have an IEP and a Section 504 plan for a given child.
14. Those students with medical conditions that require a Section 504 (medical) plan will be under the care of medical professionals. Although there is a category under special education for Other Health Impairment this must adversely affect educational performance. Section 504, again may affect a broader view of life—major life functions, such as breathing, seeing, hearing, walking, etc.
15. Students engaged in extra-curricular activities may have a Section 504 plan and this plan needs to address how the impairment may be affected by athletic or club, to name a few activities can be enhanced through accommodations. Remember to communicate the plan to extra-curricular coaches, sponsors, or other leaders.
Section 504 Evaluation. 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.
Section 504 FAQ
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.
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.
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.
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.
Does OCR 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 student. The Section 504 regulatory provision 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.
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.
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.
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.
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 an initial evaluation under the Individuals with Disabilities Education Act (IDEA), but demands a Section 504 plan for a student without further evaluation?
A school district must evaluate a student prior to providing services under Section 504. 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 seek 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 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.
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).
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.
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.
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 another major life activity 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 view 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.
In the Amendments Act (see FAQ 1), Congress clarified that an individual is not “regarded as” an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
Is an impairment that is episodic or in remission a disability under Section 504?
Yes, under certain circumstances. In the Amendments Act (see FAQ 1), Congress clarified that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. A student with such an impairment is entitled to a free appropriate public education under Section 504.
Once a student 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.
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.
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.
As noted in FAQ 34, in the Amendments Act (see FAQ 1), Congress clarified that an individual is not “regarded as” an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
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 that 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. There is no Section 504 bar to the receiving school district honoring the previous IEP during the interim period. Information about IDEA requirements when a student transfers is available from the Office of Special Education and Rehabilitative Services at http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C
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.
STUDENTS 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; or (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 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 regulatory provision 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 regulatory provision 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 regulations 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. In the Amendments Act (see FAQ 1), Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a non-exhaustive list of examples of “major bodily functions” that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The Section 504 regulatory provision, though not as comprehensive as the Amendments Act, is still valid – the Section 504 regulatory provision’s list of examples of major life activities is not exclusive, and an activity or function not specifically listed in the Section 504 regulatory provision can nonetheless be a major life activity.
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 post-secondary?
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).
At the post-secondary educational level, a qualified student 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.
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.
At the post-secondary level, the recipient is required to provide students 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.
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.
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 Section 504 protection, any student who is currently engaging in the illegal use of drugs when a covered entity acts on the basis of such use. (There are exceptions for persons in rehabilitation programs who are no longer engaging in the illegal use of drugs).
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.