Protecting Students With Disabilities

INTRODUCTION

An important responsibility of the Office for Civil Rights (OCR) is to eliminate
discrimination on the basis of disability against students with disabilities.
OCR receives numerous complaints and inquiries in the area of elementary and
secondary education involving Section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794 (Section 504). Most of these concern identification
of students who are protected by Section 504 and the means to obtain an appropriate
education for such students.

Section 504 is a federal law designed to protect the rights of individuals
with disabilities in programs and activities that receive Federal financial
assistance from the U.S. Department of Education (ED). Section 504 provides: “No otherwise
qualified individual with a disability in the United States . . . shall, solely
by reason of her or his 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 . . . .”

OCR enforces Section 504 in programs and activities that receive Federal financial
assistance from ED. Recipients of this Federal financial assistance include public
school districts, institutions of higher education, and other state and local
education agencies. The regulations implementing Section 504 in the context of
educational institutions appear at 34 C.F.R. Part 104.

The Section 504 regulations require a school district to provide a “free
appropriate public education” (FAPE) to each qualified student with a disability
who is in the school district’s jurisdiction, regardless of the nature or severity
of the disability. Under Section 504, FAPE consists of the provision of regular
or special education and related aids and services designed to meet the student’s
individual educational needs as adequately as the needs of nondisabled students
are met.

This resource document clarifies pertinent requirements of Section 504.

INTERRELATIONSHIP OF IDEA AND SECTION 504

1. What is the jurisdiction of the Office for Civil Rights (OCR),
the Office of Special Education and Rehabilitative Services (OSERS) and state
departments of education/instruction regarding educational services to students
with disabilities?

OCR, a component of the U.S. Department of Education, enforces Section 504
of the Rehabilitation Act of 1973, as amended, (Section 504) a civil rights
statute which prohibits discrimination against individuals with disabilities.
OCR also enforces Title II of the Americans with Disabilities Act of 1990
(Title II), which extends this prohibition against discrimination to the
full range of state and local government services, programs, and activities
(including public schools) regardless of whether they receive any Federal
financial assistance.  The
Americans with Disabilities Act Amendments Act of 2008 (Amendments Act), effective
January 1, 2009, amended the Americans with Disabilities Act of 1990 (ADA) and
included a conforming amendment to the Rehabilitation Act of 1973 (Rehabilitation
Act) that affects the meaning of disability in Section 504. The standards adopted
by the ADA were designed not to restrict the rights or remedies available under
Section 504. The Title II regulations applicable to free appropriate public education
issues do not provide greater protection than applicable Section 504 regulations.
This guidance focuses primarily on Section 504.

Section 504 prohibits discrimination on the basis of disability in programs
or activities that receive Federal financial assistance from the U.S. Department
of Education. Title II prohibits discrimination on the basis of disability by
state and local governments. The Office of Special Education and Rehabilitative
Services (OSERS), also a component of the U.S. Department of Education, administers
the Individuals with Disabilities Education Act (IDEA), a statute which funds
special education programs.  Each state educational agency is responsible
for administering IDEA within the state and distributing the funds for special
education programs. IDEA is a grant statute and attaches many specific conditions
to the receipt of Federal IDEA funds. Section 504 and the ADA are antidiscrimination
laws and do not provide any type of funding.

2. How does OCR get involved in disability issues within a school
district?

OCR receives complaints from parents, students or advocates, conducts agency
initiated compliance reviews, and provides technical assistance to school districts,
parents or advocates.  

3. Where can a school district, parent, or student get information
on Section 504 or find out information about OCR’s interpretation of
Section 504 and Title II?

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.

11. 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 intellectual disabilities, 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.

12. 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 postsecondary?

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 postsecondary 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.

13. 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 postsecondary 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.

14. 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.

15. 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).

16. 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.

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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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).

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34.  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.

PLACEMENT

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.

35. 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.

36. 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.

37. What is the receiving school district’s responsibility under Section
504 toward a student with a Section 504 plan who transfers from another district?

PROCEDURAL SAFEGUARDS

Public elementary and secondary schools must employ procedural safeguards
regarding the identification, evaluation, or educational placement of persons
who, because of disability, need or are believed to need special instruction
or related services.

42. Must a recipient school district obtain parental consent prior
to conducting an initial  evaluation?

Yes. OCR has interpreted Section 504 to require districts to obtain parental
permission for initial evaluations. If a district suspects a student needs
or is believed to need special instruction or related services and parental
consent is withheld, the IDEA and Section 504 provide that districts may use
due process hearing procedures to seek to override the parents’ denial of consent
for an initial evaluation.

43. If so, in what form is consent required?

Section 504 is silent on the form of parental consent required. OCR has accepted
written consent as compliance. IDEA as well as many state laws also require
written consent prior to initiating an evaluation.

44. What can a recipient school district do if a parent withholds consent
for a student to secure services under Section 504 after a student is determined
eligible for services?

Section 504 neither prohibits nor requires a school district to initiate a
due process hearing to override a parental refusal to consent with respect
to the initial provision of special education and related services. Nonetheless,
school districts should consider that IDEA no longer permits school districts
to initiate a due process hearing to override a parental refusal to consent
to the initial provision of services.

45. What procedural safeguards are required under Section 504?

Recipient school districts are required to establish and implement procedural
safeguards that include notice, an opportunity for parents to review relevant
records, an impartial hearing with opportunity for participation by the student’s
parents or guardian, representation by counsel and a review procedure.

46. What is a recipient school district’s responsibility under Section
504 to provide information to parents and students about its evaluation and placement
process?

Section 504 requires districts to provide notice to parents explaining any
evaluation and placement decisions affecting their children and explaining
the parents’ right to review educational records and appeal any decision regarding
evaluation and placement through an impartial hearing.

47. Is there a mediation requirement under Section 504?

No.

TERMINOLOGY

The following terms may be confusing and/or are frequently used incorrectly
in the elementary and secondary school context.

Equal access: equal opportunity of a qualified person
with a disability to participate in or benefit from educational aid, benefits,
or services

Free appropriate public education (FAPE): a term
used in the elementary and secondary school context; for purposes of Section
504, refers to the provision of regular or special education and related
aids and services that are designed to meet individual educational needs
of students with disabilities as adequately as the needs of students without
disabilities are met and is based upon adherence to procedures that satisfy
the Section 504 requirements pertaining to educational setting, evaluation
and placement, and procedural safeguards

Placement: a term used in the elementary and secondary
school context; refers to regular and/or special educational program in which
a student receives educational and/or related services

Reasonable accommodation: a term
used in the employment context to refer to modifications or adjustments employers
make to a job application process, the work environment, the manner or circumstances
under which the position held or desired is customarily performed, or that
enable a covered entity’s employee with a disability to enjoy equal benefits
and privileges of employment; this term is sometimes used incorrectly to
refer to related aids and services in the elementary and secondary school
context or to refer to academic adjustments, reasonable modifications, and
auxiliary aids and services in the postsecondary school context

Reasonable modifications:  under
a regulatory provision implementing Title II of the ADA, public entities
are required to make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on
the basis of disability, unless the public entity can demonstrate that making
the modifications would fundamentally alter the nature of the service, program,
or activity

Related services: a term used in the elementary
and secondary school context to refer to developmental, corrective, and
other supportive services, including psychological, counseling and medical
diagnostic services and transportation