Overview of Section 504
Anti-Discrimination Statute
The Rehabilitation Act of 1973 was passed to encourage participation and equal access to federally funded programs by disabled persons.
The text of the law can be found at 29 U.S.C. Section 794.
The regulations can be found at 34 C.F.R. Part 104.
In essence, the law states:
“No qualified disabled person shall, solely on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives or benefits from federal financial assistance.”
A “person with a disability” is defined as a person who:
(1) has a mental of physical impairment which substantially limits one or more of such person’s major life activities (self-care, performing manual tasks, walking, seeing, learning, breathing, speaking, working); or
(2) has a record of such impairment: or
(3) is regarded as having such an impairment. (For example, a person does not have an impairment that substantially limits a major life activity, but is treated as disabled as a result of the attitudes/behaviors of others.)
A recipient of federal funds, in providing any aid, benefit or service, may not, directly or through contractual, licensing or other arrangements, on the basis of disability:
- deny a qualified disabled person the opportunity to participate in or benefit from an aid, benefit or service:
- afford a qualified disable person an opportunity to participate in or benefit from an aid, benefit or service that is not equal to that afforded to others;
- provide a qualified disable person with an aid, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit or to reach the same level of achievement as that provided to others; and
- provide different or separate aids, benefits or services to persons with disabilities than is provided to other persons.
Therefore, Section 504 is essentially a federal civil rights law – which was intended to prevent discrimination against handicapped persons.
What does Section 504 seek to accomplish? Allowing disabled persons to have “participation” in programming. Meaningful access and commensurate opportunity are the key considerations.
What Student Issues are covered by Section 504
Who is a Student with a Disability under Section 504? When does Section 504 apply?
The individual has a MENTAL OR PHYSICAL IMPAIRMENT which SUBSTANTIALLY LIMITS a MAJOR LIFE ACTIVITY.
What does “substantially limit” mean? Adopting the ADA standard, a disabled person under Section 504 is unable to perform a major life activity that the average person in the general population can perform. The restriction may relate to the condition, manner or duration under which the individual can perform the major life activity, compared to an average member of the public.
Example: Walking is a major life activity.
A person who is paralyzed and requires a wheelchair for mobility is a disabled person under Section 504.
A person who is able to walk only a short distance, or falls repeatedly would also qualify as a disabled person under Section 504.
What is a Major Life Activity?
A Major Life Activity is one of the basic activities that the average person in the general population can do with little or no difficulty.
If the person’s condition does not substantially limit a major life activity, the person does not qualify for services under Section 504.
Major Life Activity – Examples include: caring for one’s self, walking, seeing, speaking, learning, hearing, breathing, working, and reading.
They are not microskills – decoding, auditory processing, poor handwriting, solving algebraic equations, remembering chemistry formulas.
Cases have dealt with some interesting issues – walking is a major life activity. However, running on a daily basis as a track team member is not a major life activity.
Typically, Section 504 Plans for students relate to chronic health concerns or conditions:
NOTE *** Section 504 plans are not exclusive – students may also have an individualized health or nursing plans,
Recent evolution of the law permits the consideration of mitigating factors, such as eyeglasses, contacts, hearing aids, medication. If the symptomatology is substantially reduced, the student may not be eligible for Section 504 accommodations.
Some examples:
ADHD Impact on attention, organization, concentration, study skills?
What if the symptoms are well controlled on medication?
If so, no eligibility if the medication is effective and there is no substantial limitation on learning.
Asthma Is the wheezing and shortness of breath well controlled with use of inhaler?
If the student used one dose of the inhaler – eliminated the breathing problems, then the student was able to return to normal classroom activities, there would be no eligibility.
Diabetes Monitoring snacks and blood sugar.
Need for school nurse on duty in building.
Student too young to reliably test own blood sugar.
Who can administer insulin pump?
Allergies Does school environment impact the student’s ability to attend school or jeopardize his/her health?
Daily cleaning with special products? Use of filters? Minimize student’s exposure to trigger substances?
Emergency plan – including emergency medication plan? Special training for staff, nurse, teachers, coaches – Epi pens? Monitoring of snacks, foods served in cafeteria?
Learning Disabilities Consider whether it is a broad category (learning) which is impaired versus a microskill.
(If learning is affected generally, does the student require specialized instruction? If so, then special education eligibility may be required!)
What about students making A’s and B’s but whose parents do not feel they are reaching their potential?
OCR has found that a child was not eligible for Section 504 despite being diagnosed with a disability and earning A’s and B’s in his classes. (Jefferson Parish (La) Public Schools, 16 EHLR 755 (OCR 1990). When a disable child is being educated in the regular classroom, the achievement of passing grades and advancement from grade to grade will be important factors in determining whether the student is deriving educational benefit.
By definition, the student who is successful in regular education does not have a disability which substantially limits his ability to learn and that student would not be eligible for Section 504.
Medication-Only If a student requires medication to be administered at school, but has no other needs which impact his/her learning, and then the student need not be placed on a Section 504 plan. The administration medication is a related service provided by regular education.
Short-Term and Temporary Conditions
Temporary conditions (such as a broken leg or wrist) are not addressed in the language of Section 504 legislation. There is a split of authority among courts who have considered this issue. There are policy letters from the DESE that indicate a temporary disability can constitute a physical impairment that substantially limits a major life activity such that Section 504 might apply. Many schools districts include temporary disabilities as falling within the scope of Section 504 protections, as stated in their student handbook.
Many temporary disabilities generally do not require a Section 504 plan, but could be implicated depending upon the expected duration of impairment and the need for accommodations. OCR has suggested that the determination should be made on a case-by-case basis, considering: (1) the nature of the condition; (2) the severity of the condition; (3) the expected duration; and (4) the long-term or permanent impact resulting from the impairment.
Some school district may choose to consider a “Voluntary Accommodation Plan” as a common-sense compromise. The student will receive some accommodations (such as extra time getting to classes, having a peer carry his/her books and materials, use of a faculty-only bathroom or elevator, use of a scribe or dictating answers into a tape recorder, etc.) but the district will not include this student in reporting statistical information to disabled students.
Drug and Alcohol Use
Substance Abuse/Addiction – can be considered an impairment under Section 504, but the student must not be currently using drugs to remain eligible for Section 504 accommodations.
General Considerations
In general, in a school setting, Section 504’s impact is primarily upon regular education students.
Special Education students – in general, have duel eligibility of both Section 504 and IDEA. Why? They meet the criteria for Section 504 AND they meet the eligibility criteria for IDEA!
FAPE requirement is the same for Section 504 and special needs students.
Education and related aids and services must be designed to meet the needs of the disable students as adequately as the needs of the non-disabled students are met. For most students, if the school is providing them appropriate services through and IEP, this will also satisfy the demands of Section 504.
The standard is a little different – “commensurate opportunity” of Section 504 vs. “the meaningful benefit” of IDEA.
Least Restrictive Environment – same standard as IDEA.
Who decides these issues? The Section 504 team.
The parent is not a legally-required member of the Section 504 team. Under IDEA, the parent is a required TEAM member.
The Section 504 plan does not require written parental consent prior to implementation. (A caveat should be mentioned if a child is being removed from the regular education classroom’s “time on learning” to receive a related service.
If a Section 504 team determines that the student is no longer eligible, the services can be terminated without parental consent or agreement. |