Section 504 of the Rehabilitation Act of 1973, prohibits discrimination against any person with a disability by any entity which receives funding from any agency of the Federal government for any reason. Title II prohibits such discrimination by state and local governments. In 2008, amendments were made to the Americans With Disabilities Act, effective January 1, 2009, with a corresponding amendment to the Rehabilitation Act of 1973. The effect of the 2008 amendments is to broaden the interpretation of “disability” under both statutes. Collectively, these statutes will just be referred to as Section 504 in this section of the site.
Section 504 is a much broader statute than the Individuals with Disabilities Education Act, because it encompasses so many more types of disabilities. Generally speaking, any child with a disability who is eligible for services under IDEA, is also covered by Section 504. However, the reverse is not true, i.e., not all children who are covered by Section 504 are eligible for an Individualized Education Plan (“IEP”) under IDEA. This is because the definition of disability under IDEA is narrower than under Section 504.
Section 504 requires your school to prove a “free, appropriate public education” (“FAPE”—as it is also referred to under IDEA), to every qualified student in the school district, regardless of the nature or severity of the disability. Essentially, your school must provide regular or special education, with related aids and services that are designed to meet your child’s educational needs to the same extent the needs of non-disabled children are met.
As with our section on IDEA and IEPs, this discussion of Section 504 is only intended to give you an overview of the basics. To find out whether your child qualifies for educational assistance pursuant to Section 504, you need to read the regulations governing Section 504, which were issued by the United States Department of Education. You can access them online through this link:
Your local public library might have a copy of the printed version of the Code of Federal Regulations, and your local law school library almost certainly will. You will also need consult with your school about its Section 504 program. The school should have written policies and procedures, as well as the forms you need to apply. Frequently, these forms will be available on the school’s Web site.
Under the original language of Section 504, your child would be eligible if he or she (1) “has a physical or mental impairment which substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.” The 2008 ADA amendments broadened the scope of each of the three alternatives.
“Major life activities” is now defined as including, but not being limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” A major life activity also includes “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
Congress also added a definition of what constitutes “being regarded” as having an impairment. Your child would meet that requirement if you could establish that your child “has been subjected to an action prohibited under [the law] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Transitory or minor impairments, i.e., impairments with an actual or expected duration of six months or less, do not make your child eligible. However, the law also provides that if your child’s disability is solely based on the definition of “being regarded as having an impairment,” the educational entity does not have to provide reasonable accommodations or reasonable modifications.
Here is a link to the statute amending Section 504, which provides you with the actual language relating to anti-discrimination, eligibility standards, etc.
In terms of age, your child is qualified if he or she is of an age where state law mandates providing educational services to persons with disabilities, or is of an age where state law mandates providing educational services to persons without disabilities, or your child is required to receive a FAPE under IDEA.
The regulations enacted by the Department of Education go into further detail about what constitutes a physical or mental impairment, as: “(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” The regulations do not attempt to provide a list of specific diseases or conditions that would constitute a physical or mental impairment under the law for the simple reason it would be virtually impossible to be sure to include every disease or condition.
The key factor in determining whether your child will be covered by Section 504 is whether the impairment substantially limits one or more major life functions. Basically, that means the impairment has to have a material effect on your child’s ability to perform a major life function. For example, if your child does in fact have a physical or mental impairment, but the condition does not limit him or her in any way, or only causes some minor limitation, then your child would not qualify under Section 504.
But the law does ban discrimination against someone who does not actually have a disability, if he or she is treated as if they do, because of a history of having a disability, or having been misclassified as having a disability. However, in some cases Section 504 also protects individuals who do not have a handicapping condition but are treated as though they do because they have a history of, or have been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. Some examples of the first group are persons with histories of mental or emotional illness, heart disease, or cancer. In the second group, it may be someone who has been misclassified as mentally retarded. Someone who is not disabled but who is treated as if they were may also be covered, such as a person with H.I.V.
A “hidden disability” is a physical or mental impairment that is not immediately or readily apparent or visible to others. Disabilities such as blindness, deafness, a limp, some form of paralysis, etc., are clearly obvious to others. But things like specific learning disabilities, such as dyslexia, diabetes, allergies, epilepsy, low vision, poor hearing, heart disease, or chronic illness may not be obvious. A chronic illness is “a recurring and long-term disability such as diabetes, heart disease, kidney and liver disease, high blood pressure, or ulcers.”
Some fairly recent statistics from the Office for Civil Rights of the Department of Education (the enforcement arm for Section 504) suggest that some 4,000,000 students with disabilities are enrolled in public elementary and secondary schools in the United States. Of these students, some 43% are classified as learning disabled, 8% are classified as emotionally disturbed and 1% are classified has having other health impairments. Hidden disabilities often cannot be recognized without the use of appropriate diagnostic testing.
Unfortunately, children with hidden disabilities are frequently not properly diagnosed. If your child has an undiagnosed hearing impairment, he or she may not understand a lot of what a teacher says. A child with a learning disability may not be able to process oral or written information easily; a child with an emotional problem may be unable to concentrate in a regular classroom. Children like these, no matter how intelligent they are, may not be able to fully demonstrate their actual abilities, or achieve educational benefits equal to that of students without disabilities. The hidden disabilities may leave them vulnerable to perceptions that they are slow or lazy or discipline problems.
Yes, of course it is true that there are some children who are slow or lazy or discipline problems, or children who aren’t doing well academically, with no disabilities whatsoever. But children who appear that way may also have a hidden disability. If you feel your child needs special education or related services, get in touch with your school district. You have a right to request that your school evaluate your child, to determine whether he or she has a disability and whether special education, or related services, are needed to provide an appropriate education. If your child is determined as needing special education or related services, then your school has a duty to arrange for them.
Here are some examples provided by the Department of Education of ways in which your school might address the needs of your child with one of the following disabilities. The language, without quotation marks, is from material written by the Department of Education.
Under the Department of Education’s Section 504 regulations, your school has some specific duties toward qualified children with disabilities within the school district’s boundaries:
On March 27, 2009, the Office for Civil Rights of the Department of Education published a revised list of 46 “frequently asked questions” about Section 504, in light of the ADA amendments that went into effect on January 1, 2009. The complete document can be found at this link:
The excerpts below are identified with the original FAQ numbers from the Office for Civil Rights, without quotation marks. Since the primary focus of BirthInjury.Org is on young children, an ellipsis (…) indicates additional information is available in the original document.
4. What services are available for students with disabilities under Section 504?
Section 504 requires recipients to provide to students with disabilities appropriate educational services designed to meet the individual needs of such students to the same extent as the needs of students without disabilities are met. An appropriate education for a student with a disability under the Section 504 regulations could consist of education in regular classrooms, education in regular classes with supplementary services, and/or special education and related services.
13. 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).
14. 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.
15. 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.
18. 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.
19. 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.
20. 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.
21. 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.
23. 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.
24. 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.
25. 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.
28. 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.
29. 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).
30. 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.
31. 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.
36. 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.
37. 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.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
As noted above, if your child qualifies for an IEP, that is an acceptable method of having a Section 504 plan as well. One thing you should insist on, though, if your child is eligible for Section 504 assistance, is that the plan is in writing. It’s all well and good to have a good personal relationship with a teacher or a principal or a superintendent, and do everything on a handshake. But its hard (difficult to at times nearly impossible) to enforce a handshake agreement if you move to a new school within the district, or the teacher dies, or the superintendent gets a better job eight states away. A written plan ensures that everyone, and that includes you as well, knows what is to be done, and how it is to be done.
A Web site called About.Com Special Needs Children also provides information about Section 504 and IEPs. The following suggestions about IEPs appear on that site, but we think the ideas are equally applicable to Section 504 plans. The suggestions are derived from About.Com, but are paraphrased here. The link to the page is provided below.
Here is the link to About.Com’s page on signing an IEP: About.com on IEP
The Ames Community School District, in Ames, Iowa, has a special section on its Web site devoted to Section 504 plans. Here’s the link:
Section 503 Plans
We’re not suggesting that the Ames Section 504 procedures are the be-all and end-all of Section 504 planning, but the information and the forms can give you an idea of what you might look for or expect with your own school district. Or the information might suggest things to ask your school, if the topic isn’t already covered.
One of the things the Ames School District has done is provide a flow-chart that offers an excellent look at the relationship between Section 504 evaluations and plans and an IEP under IDEA. Here it is:
You have a child with a disability. Whether it is an obvious disability like a brachial plexus injury with an arm that doesn’t function properly, or readily observable physical or cognitive problems flowing from a brain injury or cerebral palsy, or a hidden disability, the only way you can ensure that your child receives the education he or she is entitled to receive is to know what those rights are. Hopefully, we’ve given you a foundation for learning your rights, and your child’s rights.