Advocates Protecting the Rights of Students With Disabilities

In most school settings, Section 504 of the Rehabilitation Act of 1973 protects the rights of students with disabilities. Students with disabilities may not be discriminated against or excluded from participating in any school-based program or activity. Children protected under Section 504 will often have a “504 plan” at school. While very different from an IEP, that plan also guarantees the right to free appropriate education.

If your child already has a section 504 plan but the plan is not working, your school must meet to provide for a successful plan. In many cases, the school may be obligated to conduct a full individual evaluation under the IDEA.

What is Section 504?

Section 504 of the Rehabilitation Act of 1973 is a federal law that protects students who have a qualifying disability and prohibits school districts from disability-based discrimination.

Does Section 504 Apply to My Child?

Section 504 applies to students with qualifying disabilities between the ages of 6 and 21.  In Texas, Section 504 also applies to students who are voluntarily enrolled in pre-kindergarten or kindergarten.

What Is a Qualifying Disability?

Under Section 504, the definition of disability is very broad.  There are three ways a student would be entitled to Section 504 supports, services, and protections:

• The student has a physical or mental impairment that substantially limits a major life activity;
• The student has a record of such an impairment; or
• The student is regarded as having such an impairment.

What Is a Physical or Mental Impairment?

Section 504 does not list qualifying disabilities, but rather states that students with any physiological conditions or disorders, any psychological disorders, as well as disfigurement.  Again, this list is not exhaustive and is meant as an illustration of types of conditions or disorders that may be qualifying rather than exclusive of only those listed.

Does a Physical or Mental Impairment Automatically Qualify for Section 504 Protections?

No.  In order for the student to be covered under Section 504, the physical or mental impairment must substantially limit a major life activity.

How Does Section 504 Define a Major Life Activity?

Section 504 does not list major life activities, but rather provides examples of acts a person does and a person’s bodily functions.  Examples are:

• learning
• reading
• concentrating
• thinking
• communicating
• speaking
• hearing
• walking
• breathing
• sleeping
• caring for oneself

Major bodily functions are also major life activities under the law, and these major bodily functions include

• functions of the bowel, bladder, and brain;
• normal cell growth; and
• the immune, endocrine, respiratory, reproductive, circulatory, digestive, and neurological systems.

The list above is a representation of the kinds of major life activities that a disability could limit.

How Does Section 504 Define Substantially Limits a Major Life Activity?

Section 504 requires that a group of knowledgeable people such as the student’s parents, teachers, and someone who can interpret the evaluations and data make a case-by-case decision on whether the disorder or condition limits any one of the major life activities.  Most importantly for schools, if a disorder or condition substantially limits a student’s ability to learn, read, think, concentrate, speak, etc. then the student should be eligible under Section 504.

How Does the 504 Process Start?

A parent can request (it is best to do so in writing) that the student be evaluated under Section 504.  This request can be made to a teacher, a school counselor, or a vice principal.  The school district must have policies and procedures to ensure that students suspected of having a disability are evaluated.

What Happens After the Request for a Section 504 Evaluation?

The school district must conduct an evaluation in a timely manner.  Timely manner is not defined, but one court has described a delay of months rather than days as untimely.  The school district must have procedures for the evaluation process.

Does Section 504 Require the District to Evaluate a Student When a Parent Requests the Evaluation?

No. However, the school district must provide parents with information regarding the right to disagree with the school district’s decision.

What Does a 504 Evaluation Entail?

The school district’s procedures for evaluation may include a review of the student’s educational file, a discussion with the student’s teachers and parents, and an observation of the student in the classroom.  However, the school district may have procedures that require testing to get a better idea of the student’s levels of functioning.  The disorder or condition will determine what is included as part of the evaluation.

Who Participates in the Evaluation Meeting?

Section 504 requires a person knowledgeable about the student, a person knowledgeable about the meaning of the evaluations, and someone knowledgeable about placement options.  If one school district representative has knowledge of all three, then only one representative is necessary for the meeting.  Parents are included.  The school district representatives and parents make the 504 teams.

Who Pays for the Section 504 Evaluation?

Section 504 requires school districts to provide evaluations at no cost to parents. School district personnel typically conduct the evaluations.  For example, the district’s Speech and Language Pathologist would evaluate a student suspected of having a communication disorder.

Parents are permitted to obtain private evaluations and share them with the school district.  However, Section 504 does not speak to the issue of parent reimbursement for the private evaluation.

If a medical assessment is required to determine if a student has a qualifying disability, the school district must ensure that the assessment is provided at no cost to parents.  That may mean that the student is required to see a different provider; it is possible for the school district to pay for the costs associated with having the student’s treating medical provider conduct the assessment.

Do Parents Have to Agree to the Initial Evaluation?

Parent permission for the initial evaluation is required.  Reevaluations do not require parent permission.

Do Mitigating Supports or Devices Disqualify My Child?

No. These are referred to as mitigating measures. The school district must consider the information and evaluation of a student without the effects of the support or devices.  Information about how the impact of the disorder on the student before the mitigation measures were put in place would be important.  For some disorders, allergies, in particular, a student need not provide information that he almost died when he ate peanut butter.  Providing a note from the treating medical provider that the allergy is life threatening should be enough.

An example:  If a student has been medically diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and takes medication during the day to help her concentrate, the school district must consider how her ADHD would impact her ability to learn, think, concentrate, read, communicate, etc. without medication.  This does not mean the student must stop taking medication for a period of time. The team may use information regarding how the student’s ability to learn, think, concentrate, read, communicate, etc. when not taking medication.

The Section 504 Team Determined My Child Has a Qualifying Disability…

The 504 Team will determine what related aids and services (accommodations) are necessary in order for the student to receive a Free Appropriate Public Education.

What is a Free Appropriate Public Education Under Section 504?

Under Section 504, a Free Appropriate Public Education (FAPE) is the provision of

• regular or special education
  • Regular education is any education that takes place in the mainstream classroom and does not include special education
  • Special education is governed by the IDEA, however, students with disabilities are also covered under Section 504 and one way for a district to comply with Section 504 is to develop an IEP for a student who qualifies for special education

• related aids and services
  • related aids and services are part of an appropriate education
  • related aids and services are usually called accommodations

• that are designed to meet the individual educational needs of students with disabilities
  • the accommodation plan must be unique to each student – no two 504 Plans should be identical
  • the team could use a list of accommodations to choose from as long as the list is not the only consideration for related aids and services
  • accommodations must be reasonable
  • extracurricular activities may be considered services

• as adequately as the needs of students without disabilities are met
  • Section 504 focuses on access to education in the form of adequacy. Every student with a qualifying disability is entitled to receive the same or equivalent access to education as students without disabilities.

• and that satisfy certain procedural requirements related to an educational setting, evaluation and placement, and procedural safeguards
  • The Section 504 regulations establish a set of procedural safeguards that districts must extend to the parents of students who have disabilities or who are suspected of having disabilities in connection with the provision of FAPE (i.e., identification, evaluation, or educational placement). They include:
    • An opportunity for the parents (or guardian) to examine relevant records.
    • An impartial hearing with an opportunity for participation by the parents and representation by counsel.
    • A review procedure at no cost to parents

What Accommodations Are Necessary for My Child to Receive a FAPE?

Most school districts will create a 504 Plan.  The 504 Team (which includes parents) will document the qualifying disability and the necessary accommodations.  Once the document is finalized a copy should be given to all your child’s teachers – including teachers of physical education, art, music, computer, foreign languages, etc.

My Child’s Disability Sometimes Shows Up as Behavior Problems in School. Can the 504 Plan Help?

Yes.  Section 504 requires that students who have difficulty following the code of conduct or the discipline code have a Behavior Intervention Plan (BIP) as part of the 504 Plan. The BIP serves two purposes.  The first is to help shape the behaviors by explicitly teaching the student appropriate behaviors.  The second is to supplant the school district’s discipline code.  When developing the 504 Plan and the BIP, it is extremely important to determine to what degree the student’s disability impacts her ability to follow the school district’s discipline code and make the necessary decisions about how and if the student will be disciplined.

Does a BIP Mean That My Child Can Never Get in Trouble at School?

No.  If the behavior is not part of the child’s disability, she can be disciplined according to the discipline code if other students would receive the same discipline.  If the behavior is part of the child’s disability, then the BIP will determine if and how she will be disciplined.

What Happens if My Child Is Suspended From School?

Section 504 requires school districts to hold a Manifestation Determination Review, sometimes called a Manifestation Determination Meeting or Hearing, to discuss whether the student’s behavior was a manifestation of his disability when the student is being removed from school for more than 10 days.  The 504 teams will review the 504 Plan and the BIP and discuss how the behavior is related to the disability, if at all.  If the behavior is related, to a manifestation, then the 504 Team should review the BIP to determine if changes are necessary. Technically this meeting should take place before the suspension takes place. If the behavior is a manifestation of the disability, then the school district may not remove the child from school.

My Child’s School Suspension Has Removed Him From School. Should a Manifestation Determination Review Be Held?

It is possible that in-school suspensions could be a change of placement that would trigger a manifestation determination review.  When the in-school suspensions remove the student from the related aids and services she requires to receive a FAPE, then a Manifestation Determination Review is required.  Many school districts will make arrangements for the related aids and services to be available to the student while serving an in-school suspension.  Regardless of whether the school district is required to hold a Manifestation Determination Review, it would be a good idea to request a 504 Team meeting to discuss whether the 504 and/or BIP should be updated.

If My Child Has a 504 Plan and a BIP Can the School District Expel Him?

Under certain circumstances, the school district could expel a student with a 504 Plan.  Under many circumstances, the school district must provide educational services if the school district provides educational services to expelled students without disabilities.  However, a student who is being removed from school due to drug use is not entitled to a Manifestation Determination Review.  Nothing in Section 504 prohibits school districts from reporting crimes to the police.

What Is the Procedure if I Disagree With the School District During Any Part of the 504 Process?

School Districts are required to maintain grievance procedures that include at a minimum the following:

• A statement that parents can file a grievance against the school district regarding allegations of discrimination, harassment, and retaliation on the basis of race, color, national origin, disability, sex, and age by students, employees, and third parties;
• A notice to students, employees, and others of the process for filing a grievance, including who to contact (title, address, and telephone number of the contact individual should be included) and how to initiate a grievance;
• A requirement that all complaints will be promptly, thoroughly, and impartially investigated and decided within reasonable, designated time frames at each stage of the grievance process;
• Provisions for maintaining the confidentiality of the person who files a complaint;
• A written notice to the grievant of the disposition of the grievance at each stage of the process;
• A fair and equitable appeal process;
• A notice that retaliation against a person who files a complaint of discrimination, or people who participate in related proceedings, is prohibited;
• An assurance that if discrimination has occurred, appropriate corrective and remedial actions will be taken; and
• A provision that notifies individuals that they may file complaints with OCR.

Due Process Hearing, Mediation, and Appeal

If the grievance process has concluded and you continue to disagree with the school district, Section 504 requires that parents are permitted to request a 504 due process hearing.  The Texas Education Agency does not conduct Section 504 due process hearings. Therefore, school districts must contract with a hearing officer to ensure the safeguards for a fair and impartial hearing are met. The hearing officer may not be a school district employee or a school board member. Parents have the right to participate, be represented by counsel, and have the opportunity to review the hearing decision.

If you and the school district agree, mediation can be requested to attempt to resolve the disagreements through mediation.  Mediation is conducted by a neutral third party who helps the parties to determine if the matter can be resolved and if so how.

If you disagree with the hearing officer’s decision, you can appeal that decision by initiating court proceedings.

Is a Hearing the Only Way to Resolve an Issue?

No.  Parents have the right to make a complaint with the Office of Civil Rights (OCR).  OCR has jurisdiction to investigate complaints involving individuals covered and protected by Section 504.

OCR Complaint Process

Complainants must file an OCR complaint no more than 180 days from the date the alleged actions occurred.

However, a parent may receive an extension of time to request a due process hearing for good cause.

To start the complaint process, go to:

http://www.ed.gov/about/offices/list/ocr/complaintintro.html.