504 Plans

Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act of 1990 (“ADA”), as amended, are two pieces of federal civil rights legislation that specifically prohibit discrimination against persons with disabilities. Section 504 is Congress’ directive to schools receiving any Federal funding to eliminate discrimination based on disability from all aspects of their school operations. It states: “No otherwise qualified individual with a disability shall solely by reason of his/her 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.”

Since the School District is a recipient of Federal dollars, its administrators and staff are required to provide eligible disabled students with equal access (both physical and academic) to services, programs, and activities offered by its schools. Section 504 is a civil rights statute and not a special education statute. The U.S. Department of Education, Office for Civil Rights, is charged with enforcing this law.

Section 504 further requires the Board of Education to provide a free appropriate public education to each qualified student with a disability (i.e., each student with a physical or mental impairment that substantially limits a major life activity) who resides within the District, regardless of the nature or severity of the person’s disability. To the extent the Board of Education operates a public preschool, it must consider the needs of qualified persons with disabilities in determining the aid, benefits, or services to be provided by the preschool.

The definition of “disability” under Section 504 is non-categorical. It covers (a) persons with a physical or mental impairment that substantially limits a major life activity, (b) persons who have a record of an impairment that substantially limits a major life activity, and (c) persons who are regarded as having such an impairment. Only students who meet the first definition of disability are entitled to a free appropriate public education.

All students with a disability, including students who have a record of an impairment or who are regarded as having an impairment, are entitled to 504-protection from discrimination based upon disability.

A.  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

B.  any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Physical or mental impairments that are episodic in nature or in remission may constitute a disability for purposes of Section 504/ADA if the impairment would substantially limit a major life activity when active, such as asthma, allergies, or cancer.

Major life activities include functions such as (a) caring for one’s self, performing manual tasks, walking, seeing, hearing, eating, sleeping, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, and (b) the operation of major bodily functions including, but not limited to, the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment or appliances, low-vision devices (not including ordinary contacts and eyeglasses, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment or supplies, assistive technology, reasonable accommodations or auxiliary aids or services, or learned behavioral or adaptive neurological modifications. The finding that an impairment poses a substantial limitation is not assumed simply because an impairment exists; it is shown by determining the impact of that impairment on a particular individual’s activities.

The factors that are considered in determining whether a person’s impairment substantially limits a major life activity are:

• its nature and severity;
• how long it will last or is expected to last;
• its permanent or long-term impact or expected impact.

If you suspect that your child is “disabled” under Section 504/ADA, contact your child’s teacher, school counselor, or building principal. You will be asked to complete a referral form and grant consent for a 504 evaluation. After the evaluation is complete, a meeting will be scheduled to determine if your child has a “disability.” You have the right to meaningfully participate in the process and provide input, even if you cannot attend the meeting.

The District must evaluate any person who, because of a disability, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.

Parent consent is required prior to conducting the evaluation. If the parent does not consent to the evaluation, the child is not entitled to a Section 504 plan. Parental notice and a meaningful opportunity to provide input is required when the school proposes to evaluate or change the student’s placement.

If it is determined that the student has a physical or mental impairment that substantially limits a major life activity, he/she is entitled to a free appropriate public education (FAPE). An appropriate education may entail the provision of regular or special education and related aides and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of non-disabled students are met. This includes providing academic and non-academic services to students with disabilities in the same setting as their non-disabled peers to the maximum extent appropriate. If a student requires specialized services and/or accommodations/modifications/interventions in order to receive a "FAPE" and to access the district's programs and activities in a manner equal to students without disabilities, the District must develop a written plan and implement the delivery of needed services and accommodations/modifications/interventions in the educational program.

The determination of what accommodations/modifications/interventions and services are needed must be made by a group of persons knowledgeable about the needs of the student, the meaning of the evaluation data, and placement options. Parents/Guardians should be afforded an opportunity to meaningfully participate and provide input. This group must review the nature of the disability and how it affects the student’s ability to participate in the District’s programs and activities.

The written plan must describe the student’s program with sufficient specificity to show that the student’s needs have been addressed on an individual basis. For initial plans, parental consent is required prior to implementation. For subsequent plans, parental consent is not required. The educational setting should be the least restrictive setting appropriate. Further, it is required that students with disabilities have equal opportunity to participate in non-academic programs. The decisions about Section 504 eligibility and necessary accommodations/modifications/interventions to be provided, will be documented in the student’s file and reviewed periodically.

Section 504 is a nondiscrimination statute that seeks to afford students with disabilities equal access to the District’s educational program as compared to students without disabilities. Section 504 prohibits discrimination against students with disabilities and requires school districts to provide students with disabilities regular education or special education and related aids and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of nondisabled students are met. Any necessary services and/or accommodations/modifications/interventions must be delineated in a Section 504 Plan.

IDEA requires districts to provide disabled students (ages 3 through 21) with special education and related services and supplementary aids and services designed to meet their unique needs and prepare them for further education, employment, and independent living. The special education and related services must be delineated in an Individualized Education Program (IEP). Students are considered disabled under the IDEA if they have one of 13-qualifying conditions (autism; deaf-blindness; deafness; hearing impairment; intellectual disability; multiple disabilities; orthopedic impairment; other health impairment; specific learning disability; speech or language impairment; traumatic brain injury; visual impairment (including blindness); and emotional disturbance) and are determined to need special education. IEPs include annual goals and objectives and are designed to provide “educational benefit.”

While Section 504 does not require that schools develop an IEP, as noted above, it is necessary for the school to document the 504/ADA services and/or accommodations that are to be/being provided. If a student with a disability is eligible for a Section 504 Plan, a team must meet to develop the plan that outlines the services and/or accommodations/modifications/ interventions to be provided.

It is important to keep in mind that some students who have physical or mental impairments that limit their ability to access and participate in the District’s programs and activities will be entitled to accommodations and services under Section 504/ADA, even though they may not be eligible under the IDEA disability categories and thus are not covered by Special Education law.

Under Section 504, the quality of educational programs provided to students with disabilities must be equivalent to the programs provided for non-disabled students.

A student who is eligible for a Section 504 Plan, but does not qualify for services pursuant to an IEP, ordinarily will be provided accommodations/modifications/interventions by the staff and resources of the regular education program. Students with IEPs are entitled to protections under both the IDEA and Section 504.