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A GUIDELINE FOR

IMPLEMENTING ACCOMMODATIONS UNDER SECTION 504

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TO: Superintendents, Principals, School Psychologists, Counselors, Nurses, and Special Education Professional Staff

FROM: Holly Windram and Jeff Menigo

RE:Section 504 Accommodation Plans

DATE:June 2010

Section 504 of the Rehabilitation Act of 1973 covers a group of students not covered by the Individuals with Disabilities Education Act (IDEA). Most recently, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) further clarified Section 504 requirements.

This guideline provides staff with a basic discussion of Section 504, its similarities, and more importantly, its differences from special education. It provides staff with the needed procedures and forms to be in compliance and assistance in improving affected students’ educational performance.

Guideline: Section 504

Table of Contents

ContentsPage

Introduction3

Definitions3

Student Population Chart6

Comparison of Section 504 & IDEA Chart7

School District Responsibilities9

Identification & Referral9

Evaluation & Placement10

Accommodations & Accommodation Plans11

Selection of Accommodations or Modifications 12

Possible Accommodations/Modifications Regarding12

Section 504 Eligible Students

Examples of Learners with Disabilities Who May13

Require a 504 Plan

Conditions Not Eligible Under Section 50414

Due Process & Procedural Safeguards14

Nondiscrimination Policies & Notices15

Section 504 Coordinators15

Grievance Procedures16

Graduation Standards17

Problem Solving Process18

Student Concern/Referral Flowchart19

Appendices

Appendix I20

Section 504 Parent/Student Rights

Appendix II 27

Sample: Non Discrimination Policy Statement

Sample Notice: Section 504 of the Rehabilitation Act of 1973

Appendix III30

Sample: Grievance Procedure

Appendix IV32

Section 504 Forms

Guideline #10: Section 504

Introduction

Section 504 of the Rehabilitation Act of 1973 is not an education statute or a funding statute; it’s a civil rights law. Section 504 prohibits discrimination against individuals with disabilities and covers all public & private agencies that receive federal financial assistance. Section 504 includes students covered under the Individuals with Disabilities Education Act (IDEA) and extends beyond to other students who meet Section 504’s eligibility critieria.

Definitions

ADA: (Americans with Disabilities Act of 1990 and the Americans with Disabilities Act Amendments Act of 2008 (ADAAA)) are civil rights laws that prohibits discrimination against persons with disabilities in areas of employment, public services, public accommodations, transportation, and communication. Section 504 defines key terms and definitions, which were incorporated into the ADA. It mandates that any recipient of federal funds (direct or indirect), public or private, must make their programs and activities accessible to persons with disabilities.

Section 504: The part of the Rehabilitation Act of 1973 that prohibits disability discrimination in federally funded programs and activities to people who meet certain eligibility criteria through an evaluation process. Section 504 states: No otherwise qualified handicapped individual shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives benefits from federal financial assistance.

Which students are covered?

Under 504, a person with a disability is defined as an individual who:

1. Has a mental or physical impairment that 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.

Students who satisfy the first definition above are entitled to a free appropriate public education

(“FAPE”) in the least restrictive environment. FAPE, under Section 504, is defined as the provision of regular or special education and related services that are designed to meet the individual educational needs of the disabled student as adequately as the needs of nondisabled students.

Students who satisfy only the second and third definitions are not entitled to FAPE, but are entitled to be free from discrimination.

Mental or physical impairments are broadly defined and include any physiological disorder or condition or any mental or psychological disorder, whether formally diagnosed or not. However, an impairment, alone, is insufficient to qualify a student as Section 504 disabled. In addition, a medical diagnosis or the fact that a student takes medication is not controlling in determining whether that student has a 504 disability. The Office for Civil Rights, which is charged with the responsibility to enforce 504, has stated that finding a student 504 eligible solely on the basis of a diagnosis generally violates Section 504.

A student’s eligibility under Section 504 is not determined by a doctor or psychologist but by a multidisciplinary team convened by the District. That team must include persons who are knowledgeable about the student, the evaluation data to be considered, the placement options and Section 504 requirements.

Major life activities, as defined by Section 504 and the 2008 ADAAA, include – but are not limited to – activities such as walking, seeing, hearing, speaking, breathing, learning, working, caring for one’s self, bending, standing, learning, thinking, concentrating, reading, eating, sleeping, communicating and performing manual tasks. Pursuant to the 2008 ADAAA, major life activities also include the operation of a major bodily function, including, but not limited to, the immune system, normal cell growth, digestive functions, bowel functions, bladder functions, neurological functions, brain functions, the respiratory system, the reproductive system, the circulatory system and the endocrine system.

An impairment that substantially limits one major life activity does not need to limit other major life activities for the student to be considered disabled.

To be disabled under Section 504, the student’s mental or physical impairment must substantially limit one or more major life activities. Minor or moderate limitations are not sufficient for a student to be eligible under 504. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Substantial limitation is not defined in Section 504 or the 2008 ADAAA. In the 2008 ADAAA, Congress stated that the phrase “substantially limits” must be interpreted consistently with the findings and purposes of the 2008 Amendments. However, pursuant to the 2008 ADAAA, substantial limitation means less than “significantly restricted.” The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative3 effects of mitigating measures4 such as the following: medication; medical supplies, equipment, or appliances; low-vision devices (which do not include ordinary eye-glasses 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; the use of assistive technology; reasonable accommodations; auxiliary aids or services;5 learned behavioral or adaptive neurological modifications; the acquisition or modification of equipment or devices; and other similar services and actions. The ameliorative effects of ordinary eyeglasses or contact lenses can be considered in determining whether an impairment substantially limits a major life activity.

In determining whether a student’s impairment substantially limits a major life activity, the District must conduct an evaluation and, based on that evaluation, compare the student to his or her average peer in the population. Students, therefore, are measured by reference to the performance of children at the same age or grade level. Under Section 504, the student is not compared to his or her own potential.When determining eligibility under Section 504, the District also is required to determine if environmental, cultural, or economic disadvantage are the primary reason for any limitations that the student may exhibit.

Temporary impairments may be covered by 504 if the impairment is substantially limiting and if it is of sufficient duration. A transitory and minor impairment, however, is not a disability. A transitory impairment is one with an actual or expected duration of six months or less. The District can voluntarily accommodate a student’s transitory and minor impairment without violating the “regarded as” definition of disability.

IDEA: (Individuals With Disabilities Education Act) Federal special education law (and implementing regulations) which entitles leaners with disabilities to a free appropriate public education.

All learners with individual education plans (IEPs) who meet one of the thirteen definitions of disability under IDEA are covered by the requirements of Section 504. On the other hand, there are some learners who are not eligible for services under IDEA but who are learners with disabilities as defined by Section 504. (Refer to the charts on pages 7, 89 for comparisons and differences between IDEA and Section 504).

Student Population

Many aspects of the Section 504 regulation concerning free appropriate public education (FAPE) parallel the requirements of the Individuals with Disabilities Education Act (IDEA) and Minnesota law. All students who receive special education and related services under the IDEA are covered by the requirements of Section 504.

Comparison of Section 504 & IDEA

Issues / Section 504 / IDEA
Type / A Civil Rights law / An Education act
Title / The Rehabilitation Act of 1973 / The Individuals with Disabilities Education Improvement Act
Responsibility / Regular Education / Special Education
Funding / State & Local Funds / State, Local, & IDEA Funds
Administration / Section 504 Coordinator / Special Education Director or designee
Service Tool / Accommodation and/or Service Plan / Individual Education Plan (IEP)
Purpose / A civil rights law which prohibits disability discrimination that applies to programs and activities in facilities that receive federal financial assistance. / A federal funding statute to provide financial aid to states to assure a free appropriate public education for learners with specific disabilities.
Eligibility / Must meet the specific criteria for a disability under Section 504 (see definitions). / Must meet the specific eligibility criteria for one of the qualifying conditions.
Free Appropriate Public Education / Required for all eligible learners and may include individually designed instruction. / Required for all eligible learners including individually designed instruction.
Accessibility / Reasonable accommodations must be made to ensure learner will benefit from the educational program. / Modifications must be made to provide access to a free appropriate public education.
Drug and Alcohol Use / Current drug use is not considered a disability. An individual who has stopped using chemicals and is undergoing rehabilitation could be protected. / Could be eligible under “Other Health Impaired for those individuals undergoing rehabilitation.”
Issues / Section 504 / IDEA
Procedural Safeguards / Requires notice to parent or guardian with respect to identification, evaluation, and placement. / Requires notice to parent or guardian with respect to identification, evaluation, placement and the provision of a FAPE.
Consent / Section 504 does not expressly require consent for initial evaluation and initial placement but OCR has determined that such consent is required. / Requires written consent before initial evaluation or placement.
Evaluations / Data from a variety of sources; decisions made by a knowledgeable team. Reevaluation is periodically required and before any significant change in placement is made. No provision for independent evaluation at school expense. District should consider outside evaluations. / Requires full comprehensive evaluation; more broad than 504. All areas related to suspected disability evaluated. Involves multidisciplinary team. Requires reevaluation every three years. More procedural safeguards with respect to evaluations.
Placement / Placement decisions made by a team knowledgeable about the learner, the meaning of the data, and placement options. The principle of least restrictive environment applies. Consent not required but encouraged before placements. A re-evaluation is required. This may be done using existing data. / Placement decisions made by a team knowledgeable about the learner, the meaning of the data, and placement options. The principle of least restrictive environment applies. Consent required before initial placements. An IEP meeting is required before any change in placement.
Reviews / Review periodically. An annual review is recommended, but not required. / The IEP must be reviewed at least annually.
Grievance Procedures / Districts must designate an employee to be responsible for compliance with Section 504 and provide a grievance procedure for learners, parents, and employees. / Does not require a grievance procedure or compliance officer.
Due Process / Requires districts to provide impartial hearings for parents or guardians who disagree with the identification, evaluation, records, or placements of learners with disabilities. / Requires districts to provide impartial hearings for parents or guardians who disagree with the identification, evaluation, placements or the provision of a FAPE concerning children with disabilities. Involves more detailed and specific procedures.
Enforcement / Enforced by US Office for Civil Rights. State Department of Education has no monitoring, complaint resolution, or funding involvement. / Enforced by US Office of Special Education Programs. Compliance monitored by State and Federal Education Departments. Complaints resolved by the State under IDEA.

School District Responsibilities

With regard to school districts, Section 504 requires that learners with disabilities must be provided with a free appropriate public education (FAPE) if they are shown to have a mental or physical impairment that substantially limits a major life activity. The regulations require:

1. Identification and location of all eligible unserved learners

2. Evaluation

3. Procedural safeguards

4. Free appropriate public education (FAPE)

5. Least restrictive environment (LRE)

6. Written assurance of nondiscrimination (policy)

7. Designation of Section 504 coordinator

8. Notice of nondiscrimination

9. Grievance procedures

Identification & Referral

  • A referral may be received from parents, students, teachers, and/or community agencies. The referral is directed to the district’s (or building’s) Section 504 coordinator.
  • Although not determinative of eligibility, the following are situations in which a referral for a Section 504 evaluation may be appropriate :
  • a parent frequently expresses concern about their child’s performance
  • suspension or expulsion is being considered for any learner
  • retention is being considered
  • a learner shows a pattern of not benefiting from instruction
  • a learner returns to school after a serious illness or injury
  • a learner was referred for a special education evaluation but it was determined not to conduct the evaluation
  • a learner was found to be not eligible for special education services
  • a learner exhibits a chronic health problem
  • a learner has been identified as having AD/HD
  • a learner is identified as “at risk” or exhibits potential to drop out of school
  • substance abuse recovery or rehabilitation is an issue
  • any type of disability or handicap is suspected
  • a new building or remodeling is being considered
  • The presenting problem(s) and previous interventions are considered and reviewed by a team including such persons as classroom teachers, building principal, parents, the learner, etc. A summary of the referral review is developed which includes all current information and recommendations for additional evaluation if so determined. Please see page 18. When a separate Section 504 file is developed for a student, place the Notice of Section 504 File form (Appendix IV) in the student’s cumulative file.

Evaluation & Placement

  • The district notifies the parent(s) or guardian(s) of the school’s reason and intent to conduct an evaluation. Although parental consent is not required by Section 504 to conduct an evaluation, it is best practice to provide notice of proposed actions. The Parent Notification of Section 504 Evaluation form (Appendix IV) is used which includes due process rights and a description of the evaluation.
  • Section 504 requires that the district evaluate each learner with a disability before making an initial placement or any subsequent, significant change in a learner’s placement. An evaluation, in part, may consist of a review of existing data or information obtained from medical or psychological assessments. Consideration should also be made to determine if a special education evaluation should be conducted.
  • A team knowledgeable about the learner and assessment data will determine if the learner is eligible for services and/or accommodations under Section 504 using the Section 504/ADA Student Eligibility Form (Appendix IV). This determination should be based upon evaluation results, determination if the student has a disability or condition that substantially limits a major life activity, the learner’s unmet needs, needed services and/or accommodations.
  • In cases where services and/or accommodations are necessary, the district will conduct a 504 team meeting including all involved staff and parents and the student using the Parent Notification of Section 504 Team Meeting form (Appendix IV).
  • When necessary accommodations and/or services are required, an accommodation plan is written using the Section 504 Student Accommodation Plan form (Appendix IV) . This plan will also address accommodations for state-wide assessments.
  • Parents receive a copy of the accommodation plan, notice of parental/student rights afforded them under Section 504 and the Parent Notification of Section 504 Team Decision form (Appendix IV). While Section 504 contains no explicit requirement to obtain parent consent for initial placement in Section 504, the OCR has determined that such consent is required prior to initial placement. Accordingly, it is highly recommended to obtain parent consent prior to implementing a Section 504 Plan.
  • Assessments must be based on information gathered from a variety of sources that will provide helpful information to determine 504 eligibility. Examples may include (but are not limited to) file reviews, interviews, observations, teacher recommendations, grades, social and adaptive behavior, aptitude and achievement tests, and evaluations and diagnoses provided by medical and psychological agencies.
  • The concept of Least Restrictive Environment (LRE) applies to students covered under Section 504. Learners, with disabilities under Section 504 criteria, who cannot be accommodated with the use of supplementary aids and services, can be placed in a setting other than the regular education environment. This decision must be determined by a knowledgeable team. Since each learner and disability is unique, the reasonable accommodation principle should be applied on a case by case basis.
  • Section 504 also covers nonacademic and extracurricular services and activities in that learners with disabilities must be provided non-academic and extracurricular services and activities in such manner as is necessary to afford those learners an equal opportunity for participation in such services and activities.
  • Reevaluation is periodically required for learners with disabilities under Section 504. It is recommended that reevaluations of eligibility occur at least every three years. Reevaluation is also required before any significant change in placement.
  • A learner that qualifies for Section 504 services does not necessarily qualify for special education services (IDEA). IDEA has more restrictive criteria than 504; however, all learners covered under IDEA are also covered under Section 504. A learner could qualify for both IDEA and 504.

Accommodations & Accommodation Plans