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Section 504 of the Rehabilitation Act

The Rehabilitation Act of 1973, called Section 504, is a nondiscrimination statute enacted by Congress. The purpose is to prohibit discrimination and ensure that disabled students have the same educational opportunities and benefits as those provided to nondisabled students.

Under § 504, a student who (a) has, (b) has a record of having, or (c) is regarded as having, a physical or mental impairment which substantially limits a major life activity such as learning, self-care, walking, seeing, hearing, speaking, breathing, working and performing manual tasks is eligible for Section 504 protections.
Many students are eligible for education services under both § 504 and the Individuals with Disabilities Education Improvement Act (IDEIA 2004). Students eligible under the IDEA have many specific rights not available to students who are eligible solely under § 504.

The enabling regulations for § 504, found in 34 CFR Part 104, provide parents and/or students with the following rights:

  1. You have the right to be informed by the school district of your rights under § 504. See 34 CFR 104.32.
  2. Your child has the right to an appropriate education designed to meet his/her individual educational needs as adequately as the needs of nondisabled students are met. See 34 CFR 104.33.
  3.  Your child has the right to free educational services, except for those fees that are imposed on nondisabled students or their parents. See 34 CFR 104.33.
  4. You child has a right to placement to the least restrictive environment.  34 CFR 104.34.
  5. You child has a right to facilities, services, and activities that are comparable to those provided for nondisabled students. See 34 CFR 104.34.
  6. You child has a right to an evaluation prior to an initial  § 504 placement and any subsequent significant change in placement. See 34 CFR 104.35.
  7. Testing and other evaluation procedures must meet the requirements of  34 CFR 104.35 as to validation, administration, areas of evaluation, etc.  The district shall consider information from several courses, not just one, including aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, adaptive behavior, physical or medical reports, students grades, progress reports, parent observations, anecdotal reports, and TEAMS/TAAS scores. See 34 CFR 104.35.
  8. Placement decisions must be made by a group of persons (i.e., the § 504 Committee), including persons knowledgeable about your child, the meaning of the evaluation data, the placement options, and the legal requirements for least restrictive environment and comparable facilities. See 34 CFR 104.35
  9. If eligible under § 504, your child has a right to periodic reevaluations, generally every three years. See 34 CFR 104.35.
  10. You have the right to notice prior to any action by the district in regard to the identification, evaluation, or placement of your child. See 34 CFR 104.36.
  11. You have the right to examine relevant records. See 34 CFR 104.36
  12. You have the right to an impartial hearing with respect to the district’s actions regarding your child’s identification, evaluation, or educational placement, with opportunity for parental participation in the hearing and representation by an attorney. See 34 CFR 104.36.
  13. If you wish to challenge the actions of the district’s   § 504 Committee in regard to your child’s identification, evaluation, or educational placement, you should immediately file a written Notice of Appeal with the district’s  § 504 Coordinator. A hearing will be scheduled before a Hearing Officer and you will be notified in writing of the date, time, and place for the hearing.
  14. If you disagree with the decision of the Hearing Officer, you have a right to a review of that decision by a court. 34 CFR 104.36
  15. On § 504 matters other than your child’s identification, evaluation, and placement, you have a right to file a complaint with the district’s  § 504 Coordinator (or a designee), who will investigate the allegations to the extent warranted by the nature of the complaint in an effort to reach a prompt and equitable resolution.

A Section 504 hearing creates the record for federal court. Section 504 cases can go to a jury and bring damages. Section 504 hearings are administrative hearings and thus the strict rules of evidence don’t apply unless there is some specific statutory requirement that they do. In Section 504 cases, you can demand and use class-wide data.

504 Hearing and Appeals Process

  1. Request mediation, an impartial hearing, and an appeal of any decisions or actions taken by the school corporation regarding your child’s identification, evaluation, educational program or placement. You and your student may take part in these proceedings and have an attorney represent you. Requests for due process must be made to the superintendent of the Section 504 coordinator. The following details the procedures:

    1. If the parent/guardian disagrees with the identification, evaluation, educational placement, or with the provisions of a free appropriate public education for his/her child. The parent/guardian may make a written request for a hearing to the superintendent, indicating the specific reason(s) for the request.
    2. The School Corporation may initiate a hearing regarding the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student. The School Corporation shall notify the parent/guardian of the specific reason(s) for the request.
    3. Such hearings shall be conducted within twenty (20) instructional days after the request is received, unless the hearing officer grants an extension and at a time and place reasonably convenient to the parent/guardian. Upon receipt of a request for a hearing officer. The parent/guardian involved in a hearing shall be given the right to have the child who is the subject of the hearing present, open the hearing to the public, and be represented by counsel or any other representative.
    4. During the pendency of an administrative or judicial proceeding, unless the School Corporation and the parent/guardian of the child agree otherwise, the child involved in the proceeding shall remain in his/her present educational placement. If there is a dispute regarding this present placement, the hearing officer shall order an interim placement. The present educational placement of the child shall include normal grade advancement if the proceedings extend beyond the end of the school year. If the issues involve an application to initial admission to school, the child, with the consent of the parent/guardian, shall be placed in the school until the completion of the proceedings. In the absence of an agreement, the hearing officer shall determine the child’s placement during the proceedings.
    5. The child and the parent/guardian shall have the right to legal counsel and/or other representation of their own choosing. The School Corporation shall inform the parent/guardian of any free or low-cost legal services available in the area if the parent guardian requests the information or if the School Corporation initiates a hearing. The School Corporation shall bear the burden of proof as to the appropriateness of any placement, transfer, or the denial of same.
    6. A tape recording or other verbatim record of the hearing shall be made and transcribed and upon request shall be made available to the parent/guardian or representative, at the school corporation’s expense. At a reasonable time prior to the hearing during school hours, the parent/guardian or representative shall be given access to all records of the school corporation, and any of its agents or employees, pertaining to the child, including all tests and reports upon which the proposed action may be based. The parent/guardian or representative shall have the right to compel the attendance, to confront or to cross-examine any witness who may have evidence upon the proposed action may be based. The parent/guardian or representative and School Corporation shall have the right to present evidence and testimony, including expert medical, psychological, or educational testimony. Introduction of any evidence at the hearing that has not been disclosed to both parties at least five (5) days before the hearing is prohibited, subject to the discretion of the hearing officer.

      Within fifteen (15) instructional days after the hearing, the hearing officer shall render a decision in writing. Such decision shall include findings of fact, conclusions of law, and orders, if necessary, which will be binding on all parties. The dated decision shall be sent by mail to parent/guardian and the superintendent of the School Corporation, and shall contain notice of the right to appeal the decision. The decision shall be implemented no later than twenty- (20) instructional days following the date of the decision, unless review is sought by either party. Should the parent guardian be represented by legal counsel and ultimately prevail on the issues at administrative and/or judicial proceedings, the parent/guardian may be entitled to payment of all or part of the attorney fees and other costs incurred by the parent/guardian.

  2. Request a review (appeal) of the hearing should you not prevail. The following details the procedure:

    1. A petition to review (appeal) the decision of the hearing officer may be made by any party to the hearing. The request must be in writing, filed with the superintendent and the opposing party be specific as to the objections, and be filed within twenty (20) instructional days of the date the hearing officer’s decision is received. The School Corporation is responsible for the appointment of an independent appeals officer to conduct an impartial review of the record as a whole and may, at his/her election, conduct the review with or without oral argument. Such review shall be conducted within twenty (20) instructional days of the receipt of the petition to review, unless either party requests an extension of time.
    2. The appeals officer shall insure that a transcript of the review is prepared and made available to any party upon request.
    3. Any party disagreeing with the decision of the appeals officer may appeal to a civil court with jurisdiction.
    4. A parent/guardian represented by legal counsel during the proceedings of a due process hearing, appeal, or civil action may be entitled to reimbursement of legal fees if the parent ultimately prevails.
  3. Ask for payment of reasonable attorney fees if you are successful on your claims.

    Federal dollars compel private schools to comply with Section 504
    If you want to know whether a private school is obligated to comply with Section 504 regulations, look at its funding stream. If there is a single dollar of federal funding provided to the private school, even indirectly, it must follow 504 regulations, even if it a “religious school.” See, e.g. Cain v. Archdiocese of Kansas City, 508 F. Supp. 1021 (D. Kan. 1981).

    In addition, a private school that does not receive direct federal funding still may be subject to Section 504 if it is an indirect recipient of federal funding.
    All private schools, even religious ones, are covered by the Americans with Disabilities Act regardless of whether they receive federal funds. Title III (public accommodations) applies to private schools, regardless of their size; however, religious schools are exempt from Title III.

    If I am successful with my Section 504 case, am I entitled to seek attorney fees?

    Yes, under 29 USC 791a(b): which states "(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs."

Section 504 of the Rehabilitation Act of 1973
The Civil Rights Act of 1964, which Dr. Martin Luther King was the leader in bringing into law, provides the remedies in court, under its Title VI, that we rely on today under Section 504 and the Americans with Disabilities Act.
The purpose of Section 504 is to remove discrimination by providing the student with a disability the modifications and accommodations and related aids and services to give them access to what every other student enjoys.
Section 504 is broader than the IDEA. If your child was denied coverage under the IDEA, he or she might still be covered under Section 504 because it is much broader.

How can Section 504 be broader?
Parents have many more rights under Section 504 than under the IDEA because Section 504 provides for very specific protections for parents as they advocate for their disabled children. Under Section 504 and the ADA a parent has more power when they are engaged in the "protected activity of advocacy" for their child. The protections are against "retaliation," "intimidation," "interference," "threats" or "coercion."

Section 504 prohibits any recipient of federal financial assistance (which includes your school district, your State Education Agency, your department of Vocational Rehabilitation, many of your colleges, and so forth) from denying an individual the benefits of their program or activities solely on the basis of disability.

This means that if your school district fails to modify its program, and your child, because of their disability, is effectively denied access to the full benefits of the school's program and activities that are available to the other students, then your school district is violating the requirements of Section 504.

Deep pockets
Like Title IX, Section 504 simply states that if your state or local educational agency receives federal funds -- then it has to follow Section 504 and stop discriminating. Every state, including Indiana, DOES take federal educational funds and therefore must comply with Section 504.

Since gaining access to what other students have access to is the hallmark of Section 504, it is very strong on removal of architectural and other types of barriers, so the student can be in the regular classroom, or regular educational activity, that they would be in if not disabled.

Section 504 contemplates the following:
(a) Providing a structured learning environment;
(b) Repeating and simplifying instructions about in-class assignments;
(c) Repeating and simplifying instructions about homework assignments;
(d) Supplementing verbal instructions with visual instructions;
(e) Using behavioral management techniques;
(f) Adjusting class schedules;
(g) Modifying test delivery;
(h) Using tape recorders;
(i) Computer aided instruction;
(j) Other audio-visual equipment;
(k) Selecting modified textbooks;
(l) Selecting modified workbooks;
(m) Tailoring homework assignments;
(n) Consultation with Special Education;
(o) Reducing class size;
(p) Use of one-on-one tutorials;
(q) Use of classroom aides;
(r) Use of classroom note takers;
(s) Involvement of a services coordinator to oversee implementation
of special programs and services;
(t) Possible modification of nonacademic time such as lunchroom;
(u) Possible modification of nonacademic time such as recess;
(v) Possible modification of nonacademic time such as physical education.

When a child is deemed eligible for Section 504 protections, the school district and state education agency "shall provide a free appropriate public education to each qualified disabled person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's disability." 34 C.F.R. 104.33(a). Write your school and state education agency for their written guidelines on what a "free and appropriate public education" provides under Section 504.

Under the IDEA, the evaluation is to describe one of the eleven IDEA listed disabilities. However, the Section 504 evaluation inquiry is aimed not at a list of disabilities but rather looks at a functional analysis of the impairment, how it causes a lack of access to full education, and what could be done to remove the barrier to what the typical students have access to.
Your state education agency and local school district must have written guidelines for evaluation for mental or physical impairment under Section 504, 34 CFR 104.35.

College/University Students and Section 504:
Most colleges and universities have posted on their websites their own procedures that students just follow in order to identify themselves and access services.

Generally, in order to determine eligibility, most college websites require:

  1. The student’s most recent IEP or 504 plan.
  2. The student’s most recent evaluation. It is important that this evaluation utilize testing instruments that the college or university accepts. Most do NOT accept screening tests, such as the K-BIT and the WRAT.
  3. Some colleges and universities require that the evaluation include:
    1. A DSM-IV diagnosis.
    2. A specific rationale for any necessary accommodations.
    3. Specific evaluator qualification.

      Parents should review ALL requirements of any post-secondary institutions the child is interested in attending LONG before the child leaves the public school setting.

Distinctions between 504 and IDEA:

  1. A 504 plan often is the "consolation prize" when a child with a disability, which adversely affects educational performance, should have been found eligible for services under IDEA, but for economic, staffing and other unknown reasons was found ineligible and was given a 504 plan instead. A child with a disability is eligible for 504 protections.
  2. A child with a disability that does NOT adversely affect educational performance is eligible for 504 protections but is NOT eligible for an IEP.
  3. A child with a disability that does adversely affect educational performance is eligible for 504 protections and is eligible for an IEP.
  4. A special education child receiving educational benefit under IDEA with an IEP is also a child with a disability under 504.
  5. If a 504 child has a 504 plan with various educational accommodations, and then becomes eligible for a special education program under IDEA and an IEP, that child is STILL entitled to the same 504 protections and educational accommodations but there is no reason to continue with the 504 plan because the accommodations should be written into the IEP.
  6. 504 does not require plans to be written, though local school district policy might.
  7. The parents have very few rights under 504.
  8. The parent does not have to be invited to the meeting where a 504 plan is developed. The school must only notify the parent that a 504 plan was developed.
  9. There are fewer procedural requirements that serve to protect the parent and child under 504.
  10. What looks like discrimination may really not be discrimination.
  11. 504 does follow the child after he/she leaves the public school system. IDEA does not.

Section 504 Q&A
How time much is enough information to document that a student has a disability for purposes of providing a 504 plan to a student?

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 whether they have enough information to make a knowledgeable decision as to whether or not the student has a disability. The Section 504 regulation, at 34 C.F.R. 104.35(c), requires that school districts draw from a variety of sources in the evaluation process so that the possibility of error is minimized.

The information obtained from all such sources must be documented and all significant factors related to the student's learning process must be considered. These sources and factors may include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior.

In evaluating a student suspected of having a disability, it is unacceptable to rely on presumptions and stereotypes regarding persons with disabilities or classes of such persons. Compliance with the IDEA regarding the group of persons present when an evaluation or placement decision is made is satisfactory under Section 504.

What process should a school district use to identify students eligible for services under Section 504? Is it the same process as that employed in identifying students eligible for services under the IDEA?

School districts may use the same process initially to evaluate the needs of students under Section 504 as they use to evaluate the needs of students under the 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 regulation at 34 C.F.R. 104.35.

What process should a school district use to identify students eligible for services under Section 504? Is it the same process as that employed in identifying students eligible for services under the IDEA?

School districts may use the same process initially to evaluate the needs of students under Section 504 as they use to evaluate the needs of students under the 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 regulation at 34 C.F.R. 104.35.

Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE?

No. A physician's medical diagnosis may be considered among other sources in evaluating a student with a disability or believed to have a disability that 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.

Once a student is identified as eligible for services under Section 504, is there an annual or triennial review requirement? If so, what is the appropriate process to be used? Or is it appropriate to keep the same Section 504 plan in place indefinitely after a student has been identified?

Periodic re-evaluation is required. This may be conducted in accordance with the IDEA regulation, which requires re-evaluation at three-year intervals or more frequently if conditions warrant, or if the child's parent or teacher requests a re-evaluation.

Is a Section 504 re-evaluation similar to an IDEA re-evaluation? How often should it be done?

Yes. Section 504 specifies that re-evaluations in accordance with the IDEA comply with Section 504. The Section 504 regulation requires that re-evaluations be conducted periodically. Section 504 also requires a school district to conduct a re-evaluation prior to a significant change of placement. OCR considers an exclusion from the educational program of more than 10 school days a significant change of placement. OCR would also consider transferring a student from one type of program to another or terminating or significantly reducing a related service a significant change in placement.

The eligibility decision must be based on information from a variety of sources, such as teacher reports, reports of physical or mental condition, observations, adaptive behavior, and aptitude and
achievement tests.

If we do the modifications for the student, do we have to refer the child and go through the procedural hassle of 504?

Yes. If the student qualifies for 504, doing the modifications without providing the procedural protections is a violation. That was the case where a school district provided a student who had undergone hip surgery with appropriate modifications, but failed to have procedures in place to document the deliberation of, or provision of accommodations [the regulations require no such documentation], or to inform parents of the procedure to follow should their student become disabled. Temple (TX) ISD, 25 IDELR 232 (OCR 1996). There can be few results as unpalatable as one where the district provides sufficient modifications to a qualified disabled student, but nevertheless is found in violation for not jumping through the procedural hoops.

What is a 504 reevaluation?

Unlike its special education counterpart, the 504 re-evaluation does not mean "test," but instead, means a gathering of data from a variety of sources. No formal testing is necessary. Letter to Williams, 21 IDELR 73 (OCR 1994). In the § 504 context, evaluation refers to a gathering of data or information from a variety of sources so that the committee can make the required determinations. Since specific or highly technical eligibility criteria are not part of the 504 regulations, common sources of evaluation data for 504 eligibility are the student's grades, disciplinary referrals, health information, language surveys, parent information, standardized test scores, teacher comments, etc. An evaluation is required, according to the regulations at 104.35(a), prior to initial evaluation, and prior to any significant change of placement. A reevaluation is also required "periodically" which the Appendix to the regulations defines as at least every three years.

The reevaluation is simply a re-gathering of information from a variety of sources to verify eligibility and to determine if additional changes are needed in the child's program. While the regulations require reevaluation every three years, the better practice is to conduct one at least at the end of every school year, looking forward to the next school year and changes to the child's schedule, teachers, and other issues that may require tinkering with the modifications and/or behavior management plan. Note that the manifestation determination meeting conducted by the 504 committee prior to a change of placement for disciplinary reasons of greater that 10 days, or when removals total 10 days during a school year is also a reevaluation.

Can a student's absences trigger a 504 referral and evaluation?

Absolutely. If a district suspects that a significant number of absences is due to a disability that substantially limits a major life activity (for example, when the number of absences threatens the student's ability to receive credit for coursework or when it impacts significantly on grades), the district ought to refer and evaluate. For example, a junior high school student with severe allergies, asthma, and migraine headaches had a lengthy history of missing school due to her medical problems. In seventh grade, she was absent 132 times, and in eighth grade attended classes only three to ten times from September to November. The parents argue that the school failed to accommodate the student's absences. The only evaluations conducted by the district with respect to the child's absences were very recent attempts to find psychological causes, even though the district was aware for the past five years of the student's medical problems (the allergies, headaches, and asthma). OCR finds that the district failed to properly evaluate given the information that it had on the medical related absences. Grafton (ND) Public School, 20 IDELR 82 (OCR 1993).

What's all the hoopla over the American Academy of Pediatrics guidelines on diagnosis of ADHD?

An ongoing struggle for many educators is the realization that no medical diagnosis is required for 504 eligibility. "Section 504 does not require that a school district conduct a medical assessment of a student who has or is suspected of having ADHD unless the district determines it is necessary in order to determine if the student has a disability." Williamson County (TN) School District, 32 IDELR 261 (OCR 2000). In fact, the regulations do not require medical evaluations for any disability to qualify under 504. Of course, if the parents present the school with an outside medical evaluation, it must be considered as part of the district's evaluation process. This requirement has also been a concern to some educators, especially when the diagnostic practices of a local doctor result in a high number of ADD/ADHD students. Some relief arrived on that front last year.

If I want to file a complaint about Section 504 violations with a government agency, which agency would that be?

For Texas residents:
U.S. Office for Civil Rights, Dallas Office
1999 Bryan St., Suite 1620
Dallas, TX 75201
(214) 661-9600
http://www.ed.gov/OCR
OCR_Dallas@ed.gov

For Indiana residents:
Illinois, Indiana, Minnesota, Wisconsin, Iowa, North Dakota
Office for Civil Rights/Chicago
U.S. Department of Education
Citigroup Center
500 W. Madison Street, Suite 1475
Chicago, IL 60661
Tel.: (312) 730-1560
Fax: (312) 730-1576
TDD: 312-730-1609 or 1-877-521-2172

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