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SECTION 504
Section 504
Section 504

Frequently Asked Questions About Section 504

1. What services are available for students who qualify under Section 504?

Section 504 requires schools to provide 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.

2. 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 regulation, 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; heroic and lymphatic; skin; and endocrine; or any

mental or psychological disorder, such as mental retardation, organic brain

syndrome, emotional or mental illness, and specific learning disabilities. The

regulation 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 regulation 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.

3. 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.

4. Does the nature of services to which a student is entitled under Section 504

differ by educational level?

Yes. Elementary and secondary schools 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 schools are 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. Schools are not required to make adjustments or

provide aids or services that would result in a fundamental alteration of the

schools' program or impose an undue burden.

5. Once a student is identified as eligible for services under Section 504, is that

student always entitled to such services?

No. The protections of Section 504 extend only to individuals who meet

the regulatory definition of a person with a disability. If a school district reevaluates

a student in accordance with the Section 504 regulation 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.

6. What is an appropriate evaluation under Section 504?

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 a disability. The Section

504 regulation, 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 factors 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.

7. How much is enough information to document that a student has a

disability?

The amount of information required is determined by the multidisciplinary

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 regulation, at 34 C.F.R. 104.35(c),

requires that school districts draw from a variety of sources in the evaluation

process so that the possibility of error is minimized. The information obtained

from all such sources must be documented and all significant factors related to the

student's learning process must be considered. These sources and factors may

include aptitude and achievement tests, teacher recommendations, physical

condition, social and cultural background, and adaptive behavior. In evaluating a

student suspected of having a disability, it is unacceptable to rely on presumptions

and stereotypes regarding persons with disabilities or classes of such persons.

Compliance with the IDEA regarding the group of persons present when an

evaluation or placement decision is made is satisfactory under Section 504.

8. What process should a school district use to identify students eligible for

services under Section 504? Is it the same process as that employed in

identifying students eligible for services under the IDEA?

School districts may use the same process initially to evaluate the needs of

students under Section 504 as they use to evaluate the needs of students under the

IDEA. If school districts choose to adopt a separate process for evaluating the

needs of students under Section 504, they must follow the requirements for

evaluation specified in the Section 504 regulation at 34 C.F.R. 104.35.

9. Must school districts consider "mitigating measures" used by a student in

determining whether the student has a disability under Section 504?

Yes. A school district must consider a student's use of mitigating measures

in determining whether the student is substantially limited in a major life activity.

"Mitigating measures" are devices or practices that a person uses to correct or

reduce the effects of that person's mental or physical impairment. Examples

include corrective eyeglasses and medications. A person who experiences no

substantial limitation in any major life activity when using a mitigating measure

does not meet the definition of a person with a disability and would not be entitled

to FAPE under Section 504.

10. Does OCR endorse a single formula or scale that measures substantial

limitation?

No. The determination of substantial limitation must be made on a caseby-

case basis with respect to each individual student. The Section 504 regulation,

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.

11. Are there any impairments which automatically qualify a student for

protection under Section 504?

No. An impairment in and of itself does not qualify a student for

protection under Section 504. The impairment must substantially limit one or

more major life activity in order to qualify a student for protection under Section

504.

12. Can a medical diagnosis suffice as an evaluation for the purpose of providing

FAPE?

No. A physician's medical diagnosis may be considered among other

sources in evaluating a student with a disability or believed to have a disability

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.

13. How should a 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.

14. Who in the evaluation process makes the ultimate decision regarding a

student's eligibility for services under Section 504?

The Section 504 regulation 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.

15. 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 in school. Section 504 requires school districts to refer a student

for an evaluation for possible special education or modification to regular

education if the student, because of disability, needs or is believed to need such

services.

16. 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 other major life activities 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.

17. How should a school district regard 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 activity 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 (and

expected duration) of the impairment and the extent to which it actually limits a

major life activity of the affected individual.

18. If a student qualifies 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 is to

comply with IDEA.

19. 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 elementary and secondary schools, unless a student actually has a

disabling condition 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 and

appropriate public education (FAPE). 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.

20. What are the responsibilities of regular education teachers with respect to

implementation of Section 504 plans? What are the consequences if the

district fails to implement the plans?

Regular education teachers must implement the provisions of Section 504

plans when those plans govern the teachers' treatment of students for whom they

are responsible. If the teachers fail to implement the plans, such failure can cause

the school district to be in noncompliance with Section 504.

21. Must a school district obtain parental consent prior to initiating a Section

504 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, districts may use due process hearing procedures to override the parents'

denial of consent for an initial evaluation.

22. What procedural safeguards are required under Section 504?

School districts are required to establish and implement procedural

safeguards that include notice, an opportunity for parents/guardians to review

relevant records, an impartial hearing with opportunity for participation by the

student's parents/guardians, representation by counsel and a review procedure.

23. What is a 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/guardians

explaining any evaluation and placement decisions affecting their children and

explaining the parents'/guardians' right to review educational records and appeal

any decision regarding evaluation and placement through an impartial hearing.