This guide describes the requirements of Section 504 of the Rehabilitation Act of 1973 as it applies to a public school district's duty to provide a free appropriate public education (FAPE) to students with disabilities. This guide is designed to assist parents and educators to understand what Section 504 is, what it requires in terms of FAPE, and how it should be implemented. In Appendix E there are real examples of accommodations that have been provided or suggested for students with disabilities. Whether or not your child has one of the disabilities noted in Appendix E, you should use those real and suggested accommodations as fodder in your fight, if your feel your child has a need due to their specific disability (s).

A Parent & Educator Guide
to
Free Appropriate Public Education
(under section 504 of the Rehabilitation Act of 1973)

Jim Rich
Director of Program Development & Review
Puget Sound ESD

November 2002

****************************************************************

Before we get into this material I would like to point out a few things.

 1. Though this guide was prepared for use by those in Washington State by the OSPI (Office Superintendent Public Instruction) and five Puget Sound Area School Districts, The contents would be valid anywhere U.S.A.

2. The information of accommodations on Appendix E are in no way complete nor are they all that you can have for any specific child. You can mix and match according to your child's needs and things can be added or subtracted as needed.

3. What you will get from your school will be dependant on how well you are able to advocate for your child. Keep in mind that all the Federal Government requires is that the schools follow procedure they do not get involved with individual placement. If procedure has been violated you can file a complaint with OCR (Office of Civil Rights). If you have a grievance about a specific item(s) you feel your child is being denied unfairly, you can file a due process complaint with the District but like as not you will be denied if the school can prove that anything you have asked for places an undue burden on the school. I know the law states that the school cannot discriminate due to their financial burden but any mediator will take into account the cost as well as the viability of what you are asking for. So my advice is if you can get the accommodations you want through the 504, go for it, but if not get an IEP and qualify your child under SPED as then the school will get Federal funding and you will get considerably more. The School can actually request more money from the Feds for specific needs like PT, OT, Tutors, Aides and the like if your child qualifies under an IEP and SPED.

4. Puget Sound Area Schools use this guide almost exclusively when determining eligibility and what services they will provide. Some refer to this guide as the 'Bible" of 504 plan educators. That does not mean that you can't ask for something not in print in this guide. It also does not mean that all that is on these pages are all that you can get if you have a child with a valid 504 need.

5. Remember YOU are your Childs best advocate so be informed and read everything you can so that you will be better prepared to fight for your Childs rights. I would suggest you print out appendix E or this whole document and highlight that which relates to your child and use this information to fight for your child. The accommodations contained herein have actually been implemented for a child or have been included as a viable 504 plan accommodation by the OSPI and 5 Districts in Washington State. I would therefore think they could be applied to any child with a valid need. So do your homework and use this 'Bible' to fight for your child.

6. If nothing else read the sections under Introduction to Appendix A. You can skip Appendix A through D but Please read Appendix E as it will be of the most benefit to you and your child. You can use the links to jump to those sections and use the (Return to Top) in the bottom right of all pages of this site. 

Table of Contents

Acknowledgements 
 
Introduction

A Parent and Educator Guide to FAPE under Section 504 

IDEA and Section 504 Comparison 

Section 504 Process Flow Chart 

Section 504 Process 

Section 504 - FAQ's 

Resources on Section 504 

APPENDIX A

This guide describes the requirements of Section 504 of the Rehabilitation Act of 1973 as it applies to a public school district's duty to provide a free appropriate public education (FAPE) to students with disabilities. This guide is designed to assist parents and educators to understand what Section 504 is, what it requires in terms of FAPE, and how it should be implemented.

Section 504 is a federal civil rights law that is designed to eliminate disability discrimination in programs and activities that receive federal funds. Since all public school districts receive federal funds, all public school districts must comply with Section 504. Under Section 504, denying a disabled student a free appropriate public education constitutes disability discrimination.

Physical or mental impairment means any physiological or psychological disorder or condition. The definition of physical or mental impairment under Section 504 is broad, includes students with life threatening health conditions (conditions that will put a student in danger of death during the school day if a medication or treatment order and a nursing plan are not in place), and is not limited to any specific diseases or categories of medical conditions.

· That substantially limits

Substantially limits means significantly restricts as to the condition, manner or duration under which a student can perform a major life activity as compared to how a non-disabled age/grade peer can perform the same activity. As a general rule, a student with a physical or mental impairment who is able to participate in and benefit from a district's education program (e.g., attend school, achieve passing grades, advance from grade to grade, and meet age/grade appropriate standards of personal independence and social responsibility) without the provision of special education or related aids or services, is not a disabled student under Section 504.

· One or more major life activities

Major life activities include but are not limited to the following: walking, seeing, hearing, speaking, breathing, learning, attending school, caring for one's self, performing manual tasks, and behavior.

A free appropriate public education is an education that is designed to meet a disabled student's individual educational needs and is based upon procedures that satisfy Section 504's identification, evaluation, placement, and due process requirements. An appropriate education can consist of education in regular classes, education in regular classes with related aids or services, special education, or a combination of such services. The definition of related aids and services under Section 504 is broad and includes any service that a student needs to participate in and benefit from a district's education program. Related aids and services include but are not limited to the following: school health services; counseling; environmental, instructional and behavioral accommodations; and transportation.

"Appropriate" means designed to meet the individual educational needs of a disabled student as adequately as the needs of non-disabled students are met. It does not mean that a district must maximize a disabled student's potential or provide "the best" education program that it can design for a disabled student. It means that a district must provide sufficient individualized services to enable a disabled student to receive educational benefit (i.e., not maximum benefit, not minimal benefit, some benefit).

Any person can refer a student for evaluation under Section 504. Parents, guardians, and school staff should refer a student for evaluation if they know or suspect that, due to a physical or mental impairment, a student needs special education or related aids or services to participate in or benefit from a district's education program.

After receiving a Section 504 referral, a district should decide whether to evaluate the student and must notify the student's parent or guardian of its decision. As a general rule, a district should evaluate a referred student if the district knows or suspects that the student, because of a disability, is not attending school, achieving passing grades, advancing from grade to grade, meeting age/grade appropriate standards of personal independence or social responsibility, or otherwise needs special education or related aids or services to participate in or benefit from the district's education program.

What is an Evaluation Under Section 504?

Evaluations under Section 504 are individually designed. A Section 504 evaluation may be broad (including aptitude and achievement data, medical and psychological data, social and cultural information, and more) or narrow (medical data). A Section 504 evaluation may be conducted by a district or conducted by an outside agency and reviewed by a district. It is the responsibility of a district to determine the scope of each student's Section 504 evaluation. As a general rule, the scope of a student's Section 504 evaluation should be broad enough to enable the district to determine whether a student is disabled under Section 504 and, if so, what educational and related aids and services the student needs to receive a FAPE.

What Placement Procedures Does Section 504 Require?

Placement under Section 504 means services - the educational and related aids and services that a student needs to receive FAPE. Placement decisions under Section 504 must be documented, based upon a student's evaluated needs, and made by persons knowledgeable about the student, the meaning of the student's evaluation data, and placement options. In addition, placement decisions must ensure that disabled students are educated in the least restrictive appropriate placement.

What Due Process Rights Do Parents and Guardians Have Under Section 504?

Section 504 gives parents and guardians the right to challenge district decisions regarding the identification, evaluation and educational placement of their child. Under Section 504, a district must notify a student's parent or guardian before it takes any action regarding the identification, evaluation, or placement of their child and provide the parent or guardian an opportunity to challenge the action if they disagree. "Any action" includes a decision not to evaluate a student and denial of placement. The minimum necessary due process rights include: prior notice of any action; a right to inspect records; an impartial hearing with a right to representation by counsel; and a review procedure.

Must Parents or Guardians Consent Prior to Initial Evaluations and Initial Placements Under Section 504?

Yes. Under Section 504, a district must obtain parent or guardian consent in two circumstances: before a child's initial evaluation (the first time a child is evaluated by any district) and before a child's initial placement (the first time a child is placed on a Section 504 Plan in any district). If a parent or guardian refuses consent to either initial evaluation or initial placement, a district may, but is not required to, initiate a Section 504 due process hearing to override the refusal to consent. A district must notify a parent or guardian, but need not obtain consent, before it re-evaluates or significantly changes a student's placement.

What is a Section 504 Plan?

A Section 504 plan is a written plan that describes the educational and related aids and services that a district determines a student needs to receive a FAPE. The content of a Section 504 Plan is fluid and may change within a school year or between school years as a student's needs and services change. For a student whose only disability is a life threatening health condition, an individual health plan or nursing care plan may serve as the student's Section 504 plan. A district must provide the services identified in a student's Section 504 plan.

What Is a Section 504 Team?

A Section 504 team makes decisions regarding the evaluation and placement of students under Section 504. For example, a Section 504 team determines the scope of Section 504 evaluations, decides which students are disabled under Section 504, develops Section 504 Plans, and makes "manifestation determinations" for purposes of disciplinary exclusion from school. A district may have a district-level Section 504 team that makes district-level Section 504 decisions, building-level Section 504 teams that make building-level Section 504 decisions, or a combination of both district-level and building-level Section 504 teams.

Who Should Be on a Section 504 Team?

The membership of a Section 504 team will vary depending upon the needs of each student. For example, a nurse may be on the Section 504 team of a student with a life threatening health condition, and a psychologist may be on the Section 504 team of a student with a behavioral disorder. The composition of a Section 504 team is fluid and may change within a school year or between school years as a student's needs and services change. A Section 504 team must consist of at least two people and must include persons knowledgeable about the student, the meaning of the student's current evaluation data, and placement options.

How is Section 504 Enforced?

The U.S. Department of Education enforces Section 504 through the Office for Civil Rights (OCR). OCR investigates individual complaints of disability discrimination, including complaints that a district is denying a disabled student FAPE. OCR also provides training and technical assistance to state education agencies, educational service districts, schools districts, and parents. OCR's focus is on the process a district follows to identify, evaluate, and provide an educational placement to a disabled student, and to provide procedural due process to the student's parent or guardian. Except in extraordinary circumstances, OCR will not review the result of individual placement and other educational decisions, as long as a district complies with Section 504's procedural requirements regarding identification, evaluation, placement, and due process. The proper forum for pure educational disputes, in which a district has followed the correct process to make an educational decision but the parents or guardian disagree with the result of the decision, is a Section 504 due process hearing.

Who Conducts a Section 504 Due Process Hearing?

A district should select a hearing officer who is impartial (e.g., has no professional or personal interest that would bias his or her judgment of the case) and has some training in Section 504 and how it applies to FAPE. A list of possible hearing officers may be obtained from Puget Sound ESD, 206-439-6936.

The Bottom Line

Once a district has determined that a student is disabled under Section 504, the district must provide whatever services it decides the student needs to participate in and benefit from the district's education program. As a general rule, a district is under no obligation to provide a service that a student's parent or guardian or doctor requests unless, in the district's determination, the student needs the service.

IDEA AND SECTION 504
- A COMPARISON -

COMPONENT IDEA SECTION 504

WHAT IS IT?

A federal funding law and regulation. A federal civil rights law and regulation.

WHAT IS ITS PURPOSE?

To provide federal funds to state education agencies and districts to educate disabled students. To eliminate disability discrimination in all programs and activities that receive federal funds.

WHO IS A "DISABLED STUDENT"?

Both regulations provide protections to "disabled students" but each regulation defines "disabled student" differently. Section 504 defines "disabled student" more broadly than does IDEA.

Defines disabled student as a child aged 3-21 who has one or more of 13 specific disabilities (i.e., autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, mental retardation, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment, including blindness) and, due to disability, needs special education. Defines disabled student as a school-aged child who has a physical or mental impairment that substantially limits a major life activity (e.g., walking, seeing, hearing, speaking, breathing, learning, attending school, caring for one's self, performing manual tasks, and behavior) and, due to disability, needs special education or related aids or services.

WHAT IS A "FREE APPROPRIATE PUBLIC EDUCATION" (FAPE)?

Both regulations require a district to provide FAPE to each student in its jurisdiction but each regulation defines FAPE differently. Section 504 defines FAPE more broadly than does IDEA.

Defines FAPE as special education and related services. Students can receive related services under IDEA only if they need related services to benefit from special education. Defines FAPE as regular or special education and related aids and services. Students can receive related aids and services under Section 504 even if they are not provided any special education.

WHAT DOES "APPROPRIATE" MEAN?

Both regulations interpret "appropriate" to mean sufficient individualized services to enable a disabled student to receive educational benefit (i.e., not maximum benefit, not minimal benefit, some benefit).

HOW IS FAPE DELIVERED?

Both regulations require that FAPE be delivered through an individualized education program. Section 504 defines individual education program with less specificity than does IDEA.

Requires a written individual education plan (IEP) with specific content developed by specific participants at an IEP meeting. Requires a documented Section 504 Plan developed by a group of persons knowledgeable about the student, the meaning of the student's evaluation data, and placement options.

WHO CAN REFER A STUDENT FOR EVALUATION?

Both regulations contain a child find component, and allow any person (e.g., parents, guardians, school staff, etc.) to refer a student for evaluation.

WHAT SHOULD A DISTRICT DO WITH A REFERRAL?

Both regulations require a district to decide whether to evaluate a referred student and to notify a student's parent or guardian of its decision. As a general rule, under both regulations, a district should evaluate a referred student if it knows or suspects that the student is a "disabled student."

WHAT EVALUATION PROCEDURES ARE REQUIRED?

Both regulations require that tests and other evaluation materials:a. be validated for the specific purpose for which they are used;b. be administered by trained personnel in conformance with the instructions provided by their producer;c. include those tailored to assess specific areas of educational need; andd. be selected and administered to assure that the test results accurately reflect whatever factors the tests purport to measure.

Requires that re-evaluations be conducted at least every 3 years. Requires periodic re-evaluations. The IDEA schedule satisfies Section 504.

Provides for independent educational evaluations at district expense if a parent or guardian disagrees with a district's evaluation and either the district or a hearing officer agrees. Does not provide for independent educational evaluations at district expense. However, a district must carefully consider any such evaluations presented.

WHAT PLACEMENT PROCEDURES ARE REQUIRED?

Both regulations require that, when interpreting evaluation data and making a placement decision, a district must:a. draw upon information from a variety of sources;b. assure that all information is documented and considered;c. ensure that the eligibility decision is made by a group of persons including those who are knowledgeable about the child, the meaning of the evaluation data and placement option; andd. ensure that the student is educated with his/her non-disabled peers to the maximum extent appropriate (i.e. in the least restrictive appropriate environment).

Requires an IEP meeting before any change in placement. Requires a re-evaluation before any "significant change in placement."

IS PARENT OR GUARDIAN CONSENT EVER REQUIRED?

Both regulations require a parent or guardian to consent prior to a student's initial evaluation and initial placement. IDEA alone requires consent prior to re-evaluations.

WHAT DUE PROCESS RIGHTS DO PARENTS AND GUARDIANS HAVE?

Both regulations require a district to notify a student's parent or guardian before the district takes any action regarding the identification, evaluation or placement of their child. IDEA procedures satisfy Section 504.

Requires written prior notice and specific content to be included in the notice. Allows oral prior notice, but a district is wise to provide notice in writing.

WHAT KIND OF GRIEVANCE PROCEDURE IS REQUIRED?

Requires each state education agency (OSPI) to have a special education grievance procedure, commonly called a citizen complaint procedure. Requires each district to have an internal Section 504 grievance procedure for parents and guardians, students, and employees.

WHAT KIND OF HEARING PROCEDURE IS REQUIRED?

Both regulations require a district to provide an impartial due process hearing procedure for parents or guardians who disagree with the identification, evaluation, or placement of their child.

WHO CONDUCTS A DUE PROCESS HEARING?

Requires each state education agency (OSPI) to conduct such hearings through a state office of hearings. Allows either state education agencies or districts to conduct such hearings (in WA, districts conduct such hearings).

HOW IS IT ENFORCED?

Enforced by the U.S. Department of Education, Office of Special Education Programs (OSEP). Enforced by the U.S. Department of Education, Office for Civil Rights (OCR).

Each state education agency (OSPI) and OSEP monitors compliance through complaint investigations and compliance reviews. OCR monitors compliance through complaint investigations. The state education agency (OSPI) has no monitoring, complaint resolution, or funding involvement.

Section 504 Process
Flow Chart

*Indicates meetings that require the participation of 

(1) a person knowledgeable about disability/evaluation data; 

(2) a person
who is knowledgeable about the student; and 

(3) a person who is knowledgeable about placement options.

Section 504 Process

1. Concern

A student, parent, teacher, counselor, or administrator has a concern that a student may need support. Strategies are developed and implemented to address the concern.

2. Referral to the Student Support Team (SST)

If the strategies are not successful, the concerned individual should complete the SST referral form. The referral form documents the original concern, the strategies implemented to address the concern and the outcome of the strategies.

3. Decision to Evaluation

The SST reviews the referral, the student's file, and the strategies implemented so far, and consults with teachers, parents, student, peers, or anyone who has information. The SST decides whether it appears the student might have a disability or other need.
If the SST believes that the student may be eligible under IDEA or may be an English language learner or have other needs, the SST refers the student for evaluation under those processes.
If the student appears to have a disability under 504, the SST gives the parents a Notice of Action and Rights and refers the student for evaluation. The parents must provide consent prior to this initial evaluation.
If the SST decides the student does not appear to have a disability, the SST suggests other strategies for resolving the concern and gives the parents a Notice of Action and Rights.

4. Evaluation

Once the parents have provided consent for evaluation, at least one expert in the area of the student's suspected disability evaluates the student. The parents may also choose to have their own expert evaluate the student in addition to the district's expert, at their own expense.

5. Eligibility Decision

A 504 Team is convened to review the evaluation data and decide if the student is eligible under Section 504. At that time, the 504 Team fills out the Section 504 Eligibility Determination Form. The 504 Team must include persons knowledgeable about the student, the evaluation data, and placement options. In making its eligibility decision, the 504 Team must consider information from a variety of sources, including any relevant information submitted by the parents. The student is eligible if the student has an impairment that substantially limits a major life activity. The 504 Team can also refer the student for IDEA, ELL, or other evaluation if appropriate.
If the 504 Team determines that the student is eligible under 504, the 504 Team gives the parents a Notice of Action and Rights and the 504 Team convenes to develop a 504 Plan.
If the 504 Team decides that the student is not eligible, the 504 Team gives the parents a Notice of Action and Rights and suggests other strategies for resolving the underlying concern.

6. Develop a 504 Plan

Once a student is found eligible under Section 504, the 504 Team convenes to develop a 504 Plan. The 504 Plan can be developed at the same time that eligibility is established if the 504 Team wishes. The 504 Plan describes the student's needs and what services or modifications will be provided to address the student's needs. The 504 Team gives the parents a Notice of Action and Rights and a copy of the 504 Plan. The district must receive consent from the parents for initial placement.

7. Review Plan

The 504 Team will convene annually to review the 504 Plan to ensure that the 504 Plan is meeting the student's needs. If the 504 Team decides that the 504 Plan needs to be modified, the 504 Team gives the parents a Notice of Action and Rights.

8. Reevaluation

The 504 Team must periodically reevaluate the student to determine if the student is still eligible or if the student has additional needs. Before a reevaluation, the 504 Team gives the parent a Notice of Action and Rights. Reevaluations must occur at least every three years or before any significant change in placement. Changes in placement include the discontinuation of services, changes of services, and long-term suspensions and expulsions.

Section 504 - FAQs

What is "discrimination" under Section 504?

Discrimination occurs when a district, based on disability:

· denies a disabled student the opportunity to participate in or benefit from an aid, benefit, or service which is afforded to non-disabled students (e.g., denies credit to a student whose absenteeism is related to his disability, expels a student for behavior related to his disability, fails to dispense medication, or provide an individual health plan or nursing care plan to a disabled student who cannot attend school without such services);
· fails to afford a disabled student an opportunity to participate in or benefit from an aid, benefit, or service that is equal to that afforded to non-disabled students (e.g., conditions a disabled student's participation in a field trip on the student's parent or guardian attending the trip, refuses to allow an otherwise qualified disabled student to try out for an interscholastic athletic team);
· fails to provide aids, benefits, or services to a disabled student that are as effective as those provided to non-disabled students (e.g., fails to provide a disabled student necessary environmental, instructional or behavioral accommodations or another related aid or service, fails to provide a disabled student necessary study skills instruction or another special education service);
· provides different or separate aids, benefits or services than are provided to non-disabled students unless there is a legitimate, nondiscriminatory reason for doing so (e.g. requires all disabled students to use special education transportation, segregates all disabled students in portable classrooms, requires all disabled students to use a different recess period);
· denies a disabled student the opportunity to participate in programs or activities that are not separate or different unless there is a legitimate and nondiscriminatory reason for doing so (e.g., denies all disabled students the opportunity to eat meals in the school cafeteria, prohibits all disabled students from participating in full day kindergarten, refuses to allow any disabled students to enroll in regular physical education classes);
· denies a disabled student the opportunity to participate as a member of a planning or advisory board (e.g., denies disabled students the opportunity to participate in student government);
· otherwise limits a disabled student in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others (e.g., denies all disabled students admission under school choice);
· aids or perpetuates discrimination by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability (e.g., sponsors a non-district organization that excludes disabled students); and
· selects the site or location of a facility that has the effect of excluding disabled students from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity (e.g., selects an inaccessible facility in which to hold school plays, concerts, or athletic competitions).

What is a "legitimate and nondiscriminatory" reason to treat a student differently, based on disability, under Section 504?

Treating a student differently, based on disability, is "legitimate and nondiscriminatory" under Section 504 if doing so is:

(1) based on a legally sufficient reason (e.g., doing so is educationally justified); and
(2) supported by the facts (e.g., based on the student's education records and other information). For example, it is legitimate and nondiscriminatory to deny a disabled student enrollment in a general education class, based on the student's disability, if:
(1) even with the provision of related aids and services, the student would be unable to participate in or benefit from the class; and
(2) the student's education records and other information support the reason.

When does an impairment "substantially limit" a student's major life activity?

Though Section 504 does not define the term "substantially limit," the term should be interpreted to mean an important and material limitation. For example:
· a student with a diagnosed learning disability whose academic performance is within the norm for his age/grade is not substantially limited in the major life activity of learning;
· a student with ADHD who is not removed from school for disciplinary reasons more than 10 school days in a school year is not substantially limited in the major life activity of behavior;
· a student with a food allergy who is not in danger of having an anaphylactic reaction during the school day is not substantially limited in the major life activity of breathing; and
· a student with a hearing impairment who has sufficient residual hearing to participate in and benefit from school without related aids or services is not substantially limited in the major life activity of hearing.

Is a district required to provide FAPE to a student who "has a record of disability" or is "regarded as disabled?"

No. A district is required to provide FAPE to those students who have a physical or mental impairment that currently substantially limits a major life activity. The fact that a student "has a record of disability" or is "regarded as disabled" does not trigger a district's duty to provide FAPE. A district's duty to a student who "has a record of a disability" or is "regarded as disabled" is to protect the student from discrimination (e.g., it would be discriminatory for a district to prohibit a student who has a record of drug addiction, but is not currently engaging in the illegal use of drugs, from participating in an interscholastic athletic team, based on the student's "record of disability").

What are "related aids and services" under Section 504?

"Related aids and services" means any service that a disabled student needs to participate in or benefit from a district's education program (e.g., if, without a specific service, a disabled student wouldn't be able to attend school, achieve passing grades, advance from grade to grade, etc., the service in question is a necessary related service for the student). In contrast to IDEA, under which students are eligible to receive related services if and only if they need related services to benefit from special education, students are eligible to receive related aids or services under Section 504 even if they are not provided any special education. Related aids and services include but are not limited to:

· school health services
· counseling services
· environmental, instructional, and behavioral accommodations
· transportation services
· speech-language services
· audiology services
· physical and occupational therapy services
· orientation and mobility services
· provision of a modified schedule, grading system, or curriculum

What is a "significant change in placement" under Section 504?

A "significant change in placement" means a significant change in the type or amount of educational or related aids or services that a district provides to a disabled student. For example:

· initiating or terminating a service
· significantly increasing or decreasing the amount of a service
· disciplinary actions that exclude a student from school for more than 10 consecutive school days in a school year
· disciplinary actions that create a pattern of exclusion from school (e.g., cumulative short-term suspensions that are each 10 school days or fewer in duration that create a pattern of exclusion due to the length of each suspension, the proximity in time of the suspensions, the total amount of time the student was excluded from school, and the similarities of the behaviors that led to the suspensions)

Can a temporary health condition be a disability under Section 504?

Maybe. A student with a temporary health condition whose condition is so severe that it substantially limits one or more of the student's major life activities for an extended period of time may qualify as a disabled student under Section 504. For example, though pregnancy is not generally considered a disability under Section 504, a district may determine that a pregnant student, who cannot attend school for several months due to pregnancy-related complications, is disabled under Section 504.

Can drug addiction be a disability under Section 504?

Maybe. A student who is drug addicted but is in recovery and is not currently engaging in the illegal use of drugs, may qualify as a disabled student under Section 504 if the student's drug addiction substantially limits the student's ability to perform a major life activity (e.g., to learn or attend school). Such a student may need a modified schedule, school counseling, or another type of special education or related aid or service to participate in or benefit from the district's education program. A student who is drug addicted and is currently engaging in the illegal use of drugs, however, is excluded from the definition of a disabled student under Section 504. A district is under no obligation to evaluate such a student under Section 504 regardless of the educational impact the drug addiction is having on the student. A district may treat such a student in the same manner as it treats non-disabled students.

Can alcoholism be a disability under Section 504?

Yes. A student who is addicted to alcohol, regardless of whether the student is currently using alcohol or is in recovery, may qualify as a disabled student under Section 504 if the student's alcoholism is substantially limiting the student's ability to perform a major life activity (e.g., to learn or attend school). Such a student may need a modified schedule, school counseling, or another type of special education or related aid or service to participate in or benefit from the district's education program.

Does Section 504 protect a disabled student who engages in drug or alcohol related misconduct at school?

No. A district may discipline a disabled student for the illegal use or possession of drugs or alcohol at school or at a school-sponsored function in the same manner and to the same extent as it disciplines non-disabled students. The procedures at 34 CFR 104.35 (regarding manifestation determinations) and 104.36 (regarding procedural safeguards) are not required for such disciplinary actions. The parent or guardian of the disabled student may challenge the regular education issues raised by the disciplinary action (e.g., whether the student did what he was charged with doing) at a regular education discipline hearing, but does not have a right to challenge the disciplinary action under Section 504. For example, the parent has no right to challenge the disciplinary action by asserting that the student's drug or alcohol-related misconduct was disability-related.

Can "social maladjustment" be a disability under Section 504?

Maybe. A student with a "social maladjustment" (e.g., conduct disorder or oppositional defiance disorder) may qualify as a disabled student under Section 504 if the student's condition substantially limits the student's ability to perform a major life activity (e.g., to learn or attend school). Such a student may need medication administration, school counseling, a behavioral intervention plan, or another type of special education or related aid or service to participate in or benefit from the district's education program.

Is "specific learning disability" defined the same under Section 504 as it is under IDEA?

Yes. "Specific learning disability" is a legal term of art defined by IDEA. To be eligible under IDEA as having a specific learning disability, a student must have a severe discrepancy (as defined by state law) between intellectual ability and achievement. Section 504 interprets the term as it is used in IDEA.

Can a district require a parent to provide a medical diagnosis before it will initiate an evaluation of a student under Section 504?

No. Under Section 504, a district must evaluate a student if the district knows or suspects that the student, because of a disability, needs special education or related aids or services, regardless of whether the student has a medical diagnosis. A district may provide a student medical diagnostic services, as a related service, if the district believes that it needs a medical diagnosis to determine whether a student has a medical condition.

Does a student with a medical diagnosis automatically qualify as a disabled student under Section 504?

No. Not every medical diagnosis will substantially limit a student's ability to perform a major life activity. However, if a medical diagnosis does substantially limit a student's ability to perform a major life activity (e.g., to learn or attend school), the student may qualify as a disabled student under Section 504. Such a student may need an individual health plan, an emergency care plan, or another type of special education or related aid or service documented in a Section 504 plan to participate in or benefit from the district's education program.

Does a student with a "life threatening health condition," as defined by state law, automatically qualify as a disabled student under Section 504?

Yes. Because state law, SHB 2834, defines "life threatening health condition" as a health condition that puts a student in danger of death during the school day if a medication or treatment order and a nursing care plan are not in place, by definition, a student with a "life threatening health condition" has a physical or mental impairment that substantially limits a major life activity, and qualifies as a disabled student under Section 504.

What should trigger an initial evaluation under Section 504?

A district should evaluate a student if the district knows or suspects that, due to a disability, the student needs special education or related aids or services to participate in or benefit from the district's education program.

For example, the following situations may trigger an initial evaluation under Section 504:

· a student failing to achieve passing grades
· a student failing to advance from grade to grade
· a student being chronically absent from school
· a student returning to school after a serious illness or injury
· a student returning to school after alcohol or drug treatment
· a student being diagnosed with a "life threatening health condition"
· a student being expelled from school

Can a district limit its duty to provide FAPE to a disabled student based on cost?

No. As a general rule, a district's FAPE obligation under Section 504 is not subject to cost considerations. For example, a district generally may not refuse to provide necessary special education or related aids or services to a disabled student because doing so would cause the district a financial hardship.

Can a district refuse to provide special education services to a disabled student because the student doesn't meet the eligibility criteria under IDEA?

No. A district cannot refuse to provide special education services to a disabled student who needs special education services simply because the student doesn't meet the eligibility criteria under the IDEA. However, as a practical matter, the only disabled students who are likely to need special education services are students who are eligible for special education under IDEA.

Can a district deny a disabled student admission under school choice?

Maybe. If a district chooses to participate in school choice, it must consider and act upon requests for admission under school choice in a manner that affords disabled students an equal opportunity to be admitted as compared to non-disabled students. As a general rule, a district cannot deny a disabled student admission under school choice unless it has a legitimate, nondiscriminatory reason for doing so (e.g., the grade level or school that the student needs is at capacity). A resident district's refusal to release special education funds for a student is not a legitimate reason to reject a disabled student under school choice.

Can a district place a disabled student on a shortened school day?

Maybe. As a general rule, a district cannot limit the length of a disabled student's school day unless it has a legitimate, nondiscriminatory reason for doing so (e.g., a shortened school day is necessary to provide a particular student FAPE). In general, transportation difficulties, staff shortages, and other administrative concerns are not legitimate reasons to place a disabled student on a shortened school day.

Can a district exclude a disabled student from a field trip?

Maybe. As a general rule, a district cannot exclude a disabled student from participating in a field trip for which the student is otherwise eligible to attend unless the district has a legitimate, nondiscriminatory reason for doing so (e.g., it is not medically or behaviorally safe to include the student). It is not a legitimate reason to exclude a disabled student from a field trip because:

· the student needs a school health service (e.g. the administration of medication or the assistance of a school nurse) during the field trip; or
· the student's parent or guardian is unable to attend the field trip, unless the participation of the parents or guardians of non-disabled students is required.

Is a disabled student entitled to extended school year (ESY) services?

Maybe. As a general rule, a district must provide ESY services to a disabled student if:
· the student's ability to perform a critical skill would substantially regress during a normal school break and the student would not recoup the lost skill within a reasonable period of time; or
· for one or more other reasons, the interruption of instruction on a critical skill during a normal school break would prevent the student from benefiting from his or her education program during the regular school year.

How does Section 504 apply to the disciplinary removal of a disabled student from school?

Section 504 protects disabled students from being improperly removed from school for misconduct that is related to their disability. As a general rule, Section 504 and IDEA apply to the disciplinary removal of disabled students in a similar manner. Before a district can implement a disciplinary action that constitutes a "significant change in placement" (Refer to "What is a 'significant change in placement' under Section 504?"), it must evaluate the student to determine whether the student's misconduct is either related to his or her disability or due to an inappropriate placement. This type of evaluation is commonly called a "manifestation determination" (Refer to "What is a 'manifestation determination' under Section 504?"). If a disabled student's misconduct is a manifestation of his or her disability, a district cannot implement a disciplinary action that constitutes a significant change in the student's placement. If a disabled student's misconduct is not a manifestation of his or her disability, a district can discipline the student in the same manner that it disciplines non-disabled students for the same misconduct. Under Section 504, unlike IDEA, a district does not have to provide a disabled student educational services during the period of time the student is properly removed from school for disciplinary reasons.

What is a "manifestation determination" under Section 504?

A "manifestation determination" is an evaluation that answers two questions:

· Is the misconduct in question related to the student's disability?

This determination must be based upon evaluation data related to behavior, and must be recent enough to afford an understanding of the student's current behavior. Misconduct is a manifestation of a disability if it "arises from the disability," "is caused by the disability," "has a direct and substantial relationship to the disability," or if the disability significantly impairs the student's behavioral controls. Misconduct is not a manifestation of a disability if it bears only a weak relationship to the student's disability. A determination that a student knows the difference between right and wrong does not constitute a determination that the student's misconduct was or was not a manifestation of the disability. In addition, a district cannot make a categorical determination that misconduct is or is not a manifestation of a disability based on a student's IDEA eligibility label.

· Is the misconduct in question due to an inappropriate placement?

This determination must be based upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior. District staff does not need to use all of the sources of information listed above in every instance. The point of the requirement is to ensure that more than one source of information is used in making such a placement decision. In addition, the district should examine the kinds of educational placements that previously have been tried with the student and determine whether a placement more restrictive than the current placement would control the student's behavior. As a general rule, a district should not long-term suspend or expel a student without first attempting to control the student's behavior by placing the student in a more restrictive educational placement unless it has a legitimate reason for rejecting a more restrictive placement as a viable placement option.

Is a district required to waive uniform age-eligibility requirements to enable a disabled student to participate in interscholastic athletics?

Maybe. This issue arises when a student is retained early in his or her school career for disability-related reasons and "ages out" of interscholastic athletic competition while in high school. As a general rule, a district can impose uniform age-eligibility requirements to participate in interscholastic athletics as long as it does so for disabled and non-disabled students alike. On the other hand, a district may be required to waive such eligibility requirements for interscholastic athletics if a disabled student "ages out" of athletic eligibility because a district's denial of FAPE caused the student's retention.

Is a district required to waive minimum grade/credit hour eligibility requirements to enable a student to participate in extracurricular activities?

Maybe. This issue arises when a disabled student is denied participation in extracurricular activities because he or she hasn't met the minimum grade/credit hour requirements for eligibility. As a general rule, a district can impose minimum grade/credit eligibility requirements to participate in extracurricular activities as long as it does so for disabled and non-disabled students alike. On the other hand, a district may be required to waive such eligibility requirements for extracurricular activities if a disabled student can establish that a district's denial of FAPE caused the student's low grades/credit hours. In addition, a district may choose to waive such eligibility requirements if a student needs to participate in extracurricular activities to receive FAPE.

Is a district required to modify the curriculum in a general education class to accommodate a disabled student?

Maybe. A district must modify the curriculum in a general education class if a disabled student needs a modified curriculum to participate in or benefit from the class and the necessary modification does not fundamentally alter the nature of the class. A district is under no obligation to provide a curriculum modification that would result in a class that is fundamentally different in nature. For example, if a student is enrolled in a lab science class and the student cannot complete the lab requirement due to disability-related absences, the district is under no obligation to modify the class by waiving the lab requirement. The decision of whether a disabled student needs a modified curriculum is a placement decision under Section 504.

Is a district required to modify the grading system in a general education class to accommodate a disabled student?

Maybe. A district must modify the grading system in a general education class if doing so is necessary to provide a disabled student an equally effective system to assess the student's performance in the class. The decision of whether a disabled student needs a modified grading system is a placement decision under Section 504.

Can a district indicate on a disabled student's transcript that it provided the student a modified curriculum or grading system in a general education class?

Yes. A district can indicate on a disabled student's transcript that it provided the student a modified curriculum or grading system in a general education class if it has a legitimate, nondiscriminatory reason for doing so. For example, it is not discriminatory for a district to indicate on a student's transcript the nature of the curriculum or grading system provided to the student if the district does so for disabled and non-disabled students alike.

Can a district provide a modified diploma to a disabled student?

Yes. As a general rule, a district can impose minimum requirements to receive a regular diploma as long as it does so for disabled and non-disabled students alike. For example, a district can provide a modified diploma to a disabled student because the student has not met the established minimum requirements for receipt of a regular diploma. If a student does not graduate with a regular diploma, the student is eligible to receive FAPE until the age of 21.


Resources on Section 504
US Department of Education, Office for Civil Rights: www.ed.gov/ocr
Sound Options Mediation: www.somtg.com
Office of the Superintendent of Public Instruction (OSPI): www.k12.wa.us
Special Education: www.k12.wa.us/specialed
Health Services: www.k12.wa.us/LearnTeachSupp/healthservices
LRP Special Education Connection: www.specialedconnection.com
Parents are Vital in Education (PAVE): www.washingtonpave.org
Educational Service Districts:
Puget Sound ESD: www.psesd.wednet.edu
Northwest ESD: www.esd189.org
North Central ESD: www.ncesd.org
Olympic ESD: www.oesd.wednet.edu
ESD 113: www.esd113.k12.wa.us
ESD 112: www.esd112.wednet.edu
ESD 105: www.esd105.wednet.edu
ESD 123: www.esd123.wednet.edu
ESD 101: www.esd101.net
Council of Educators for Students with Disabilities: www.504idea.org
Gorn, Susan. What Do I Do When…The Answer Book on Section 504. LRP 1998.

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Appendix A