Section 504

Section 504 Handbook-2018

Section 504 Handbook

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The Section 504 Handbook is a publication of the Kansas Association of School Boards, 1420 SW Arrowhead Road, Topeka, KS 66604, 785-273-3600. Copyright 2018 by the Kansas Association of School Boards. All Rights Reserved. Last Update: December 2018.

This publication is not intended to provide legal advice. Please consult your school attorney or KASB Legal Assistance for guidance on specific questions.

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Print Chapter 1-Overview


Section 504 Handbook

Chapter 1-Overview

Purpose
Laws Governing Individuals with Disabilities
Americans with Disabilities Act (ADA) 1990
Section 504 of the Rehabilitation Act of 1973
Individuals with Disabilities Education Act (IDEA)
Section 504 Regulations: Subpart A—General Provisions
Purpose
Application
Responsible employee
Grievance procedures
Notice
Assurances
Remedial action
Types of Discrimination Prohibited
Voluntary Action
Self-evaluation
Definitions
Enforcement
Retaliation
Remedies

Overview

Section 504 of the Rehabilitation Act of 1973 is a civil rights law that prohibits discrimination against individuals on the basis of disability. It provides:

“No otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . .” 29 U.S.C. 794(a).

The law defines “program or activity” to mean “all of the operations” of a public school district. 29 U.S.C. 794(b)(2)(B). Therefore, if a school receives federal funding for any of its programs, the entire school must comply with Section 504’s nondiscrimination mandate.

Section 504 is an anti-discrimination statute like Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin, and Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex. All of these statutes prohibit discrimination by educational institutions that receive federal monies. None of these laws provides funding to schools; on the contrary, they threaten the loss of federal funding in the absence of compliance with the nondiscrimination mandate.

Purpose

The purpose of Section 504 is to prohibit discrimination and to assure that disabled students have educational opportunities and benefits equal to or as adequate as those provided to students who do not have disabilities. Section 504 requires more than making programs physically accessible to individuals with disabilities. Section 504’s “equal access” includes providing individuals with disabilities the supports or accommodations they need to participate effectively in academic programs, non-academic services and extracurricular activities. Section 504 has helped erode stereotypical notions of disability, allowing focus on abilities rather than limitations caused by disabilities.

Laws Governing Individuals with Disabilities

Several federal and state laws apply to individuals with disabilities. Understanding these statutes and how they interact with one another will assist in securing appropriate services for individuals with disabilities and avoiding liability for the school.

Americans with Disabilities Act (ADA) 1990

The ADA is the federal law that prohibits discrimination against persons with disabilities in the areas of employment, public services, public accommodations, transportation, and communication. The ADA is “commerce clause legislation,” and covers the widest array of individuals with disabilities. School employees are protected from discrimination on the basis of disability under Title I of the law; students and others are protected from discrimination under Title II, which applies to all public services, including public school districts. Title III of the act applies to public accommodations, including many private businesses.

Section 504 of the Rehabilitation Act of 1973

This federal civil rights law also prohibits discrimination against individuals with disabilities, but only applies to recipients of federal funding. Section 504 is “spending clause legislation” in which Congress establishes rules for recipients of federal funds. Under Section 504, as a condition of receiving federal funding for any program (e.g., special education, school lunch, Title I, etc.), a school must certify it will not allow discrimination on the basis of disability. Like ADA, the focus of the law is on prohibiting discrimination.

Individuals with Disabilities Education Act (IDEA)

IDEA, last significantly amended in 2004, is a federal education program that provides funding to states and local school districts for special education programs. To receive federal funding, states must ensure that schools provide a free, appropriate public education to students who are eligible for services under IDEA. Eligible students are those between the ages of three and 21 (in Kansas, students age birth to two are served in programs through the Kansas Department of Health and Environment, not the Department of Education) who have a disability that fits within one of thirteen designated categories of disability eligible for services under IDEA and as a result, need special education and/or related services.

The Office for Civil Rights of the U.S. Department of Education is the agency responsible for enforcement of Section 504 in educational institutions. It has promulgated regulations of particular interest to educational institutions in the following areas:

Subpart A—General Provisions
Subpart B—Employment Practices
Subpart C—Program Accessibility
Subpart D—Preschool, Elementary, and Secondary Education
Subpart E—Postsecondary Education

Subparts C and D will be discussed in the ensuing chapters.

Section 504 Regulations: Subpart A—General Provisions

Purpose 34 CFR 104.1

The purpose of Section 504 is to eliminate discrimination on the basis of disability in programs that receive federal dollars.

Application 34 CFR 104.2

Section 504 applies to any program or activity that receives federal financial assistance. If a school receives any federal funding, all of their programs and activities are subject to Section 504 requirements.

Responsible employee 34 CFR 104.7(a)

Each school must designate at least one person to coordinate its compliance with Section 504. Although not required, larger districts may have additional 504 coordinators at the building level. While Section 504 efforts may utilize the expertise of special education personnel, compliance with Section 504 is a regular education responsibility.

Grievance procedures 34 CFR 104.7(b)

A school must adopt grievance procedures that incorporate appropriate due process standards and provide for the prompt and equitable resolution of complaints about discrimination on the basis of disability. Grievance procedures need not apply to complaints from:

  • Applicants for employment; or
  • Applicants for admission to postsecondary institutions.

Notice 34 CFR 104.8

Schools must take continuing steps to notify students, parents, patrons, applicants and employees, unions, and others that the school does not discriminate on the basis of disability in violation of Section 504. The notification, where appropriate, should state that the school does not discriminate in admission or access to, or treatment or employment in its programs or activities. The notification should include identification of the Section 504 compliance coordinator. Methods of notification may include the posting of notices, publication in newsletters or newspapers, publication in policy manuals, employee handbooks and student handbooks, or distribution of other written communication.  Notification should be included in any recruitment materials.

Assurances 34 CFR 104.5

As a condition of receiving federal funding for any program, schools are required to provide written assurance to the Department of Education that they will comply with Section 504 requirements as long as the school receives federal funding.

Remedial Action 34 CFR 104.6(a)

If a school violates Section 504, the U.S. Department of Education (through the Office for Civil Rights) can require the school take any remedial action it deems necessary to overcome the effects of the discrimination against an individual with a disability. This can include remedial actions with respect to persons who are no longer participating in the school’s programs and persons who never participated, but would have been participants if the discrimination had not occurred.

Types of Discrimination Prohibited 34 CFR 104.4(b)

A school cannot:

  • Deny a qualified individual with a disability the opportunity to participate in or benefit from any aid, benefit or service offered by the school;
  • Afford a qualified individual with a disability an opportunity to participate or benefit that is not equal to the opportunity provided to others;
  • Provide a qualified individual with a disability an aid, benefit or service that is not as effective as that provided to others;
  • To be equally effective, services are not required to produce the identical result or level of achievement, but individuals with disabilities must be afforded an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the person’s needs.
  • Provide different or separate aid, benefits or services to qualified individuals with disabilities, unless it is necessary to provide aid, benefits or services that are effective as those provided to others;
  • Despite the existence of separate or different programs, a school cannot deny an individual with a disability the opportunity to participate in programs or activities that are not separate.
  • Perpetuate discrimination by providing assistance to an agency, organization or person who discriminates on the basis of disability;
  • Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards; or
  • Limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving an aid, benefit or service.
  • Choose a location for a facility that will have the effect of excluding a person with disabilities or the purpose of effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to individuals with disabilities.

Voluntary Action 34 CFR 104.6(b)

Schools may take action in addition to any ordered remedial action to overcome the effects of discrimination on the basis of disability.

Self-Evaluation 34 CFR 104.6(c)

Within one year from the effective date of the 504 regulations (sometime in the early 1980s), schools, with the assistance of interested persons, were required to complete a written self-evaluation of their policies and practices to ensure they did not conflict with or violate Section 504 requirements. Schools were required to modify any policies or practices that violated Section 504 and to take remedial steps to eliminate the effects of any discrimination that may have occurred as a result of any discriminatory policies or practices.

Many districts have received requests for copies of their 504 evaluations in recent years. If the school can locate a copy of the self-evaluation, it is a school record that should be provided to a requestor. However, the regulations required that the evaluation be maintained on file for only three years, so many districts will not be able to find their 504 self-evaluation.

A similar self-evaluation was required under the regulations for the Americans with Disabilities Act of 1990 (see 28 CFR 35.105). That regulation also required that the self-evaluation be maintained for only three years.

Definitions 34 CFR 104.3

Individual with a Disability - The current Section 504 regulations define a “handicapped person” as one whom:

  • Has a physical or mental impairment which substantially limits one or more major life activities;
  • Has a record of such impairment; or
  • Is regarded as having such impairment.

Although the regulations have not been amended to reflect use of the term “disability” instead of “handicap,” cases under Section 504 generally use the term “disability,” as used in the Americans with Disabilities Act of 1990. The Americans with Disabilities Amendments Act of 2008 defines the term “disability” and requires that the same definition apply to Section 504 of the Rehabilitation Act of 1973. These amendments define “disability” as:

  • A physical or mental impairment that substantially limits one or more major life activities of such individual;
  • A record of such an impairment; or
  • Being regarded as having such impairment.

Physical or Mental Impairment - Section 504 regulations define a physical or mental impairment as:

  • Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito‑urinary; hemic and lymphatic; skin; and endocrine; or
  • Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Record of Impairment - Section 504 regulations indicate this means the individual:

  • Has a history of having such an impairment, or
  • Has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

Perceived as Having an Impairment - Section 504 regulations indicate this means the individual:

  • Has a physical or mental impairment that does not substantially limit major life activities but that is treated by the school as being substantially limiting;
  • Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
  • Has no physical or mental impairment, but is treated by a recipient as having such an impairment.

The ADAAA amendments further clarify the definition for both the ADA and Section 504. An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to discrimination prohibited by the ADA or Section 504 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.

Major Life Activity

Current Section 504 regulations define “major life activities” as functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The definition of disability under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) adds to the list, as indicated below.

Added by ADAAA

  • Eating
  • Sleeping
  • Standing
  • Lifting
  • Bending
  • Learning
  • Reading
  • Concentrating
  • Thinking
  • Communicating
    • The operation of a major bodily function, including functions of the following organs or systems:
    • Immune system
    • Normal cell growth
    • Digestive
    • Bowel
    • Bladder
    • Neurological
    • Brain
    • Respiratory
    • Circulatory
    • Endocrine
    • Reproductive

Added in ADAAA Employment Regulations

  • Sitting
  • Reaching
  • Interacting with others
  • The operation of a major bodily function, including functions of the following organs or systems:
    • Special sense organs and skin
    • Genitourinary
    • Cardiovascular
    • Hemic
    • Lymphatic
    • Musculoskeletal
    • The operation of a major bodily system includes the operation of an individual organ within a body system.

For additional information see Appendix G, Question 6.

The examples of major life activities in the Section 504 regulatory provisions, at 34 C.F.R. § 104.3(j)(2)(ii), predate the Amendments Act, and are not exhaustive. Because the definition of disability in the ADA applies to Section 504, all the examples of major life activities listed in the Amendments Act also constitute major life activities under Section 504.

Enforcement

In school districts, Section 504 is enforced by the Office for Civil Rights (OCR) of the United States Department of Education. OCR investigates complaints, conducts periodic compliance reviews in selected districts and provides technical assistance to those requesting assistance. There are twelve regional offices located throughout the nation. Kansas is part of Region VII, with offices located in Kansas City, Missouri. The OCR Case Processing Manual is available on-line at www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.

A complaint to OCR must be filed, in writing, within 180 days following the alleged violation. The manual defines a complaint as “a written or electronic statement to the Department alleging that the rights of one or more persons have been violated and requesting that the Department take action.” OCR does not investigate all complaints. Sometimes it seeks to resolve complaints through an early resolution mediation process.

In most cases, after OCR initially attempts to bring the school district into voluntary compliance through negotiation of a corrective action agreement. If complaints cannot be resolved in this manner, OCR may initiate administrative proceedings to terminate Department of Education financial assistance or refer the case to the Department of Justice for judicial proceedings.

In addition, an individual may file a private lawsuit, alleging discrimination, against a school district under Section 504. The Section 504 regulations do not require exhaustion of OCR administrative complaint procedures before filing a private lawsuit. However, exhaustion of administrative remedies may be required under IDEA. (See Appendix F, Question 1 and Question 5)

Retaliation

Acts of retaliation against an individual for exercising rights or filing a complaint under Section 504 are strictly prohibited. A school district cannot intimidate, threaten, coerce, or discriminate against any individual or interfere with their exercise of any right or privilege secured by Section 504. Retaliation is also prohibited by school district policies.

In April 2013 the Office for Civil Rights issued a “Dear Colleague” letter addressing the issue of retaliation. The letter clarifies the basic principles of retaliation law and describes OCR’s methods of enforcement. A copy of the letter is included in Appendix Q.

Remedies

Ultimate consequences for violation of Section 504 rights may include payment of compensatory damages, tuition reimbursement, compensatory education, payment of attorney fees, and/or loss of federal funds. Monetary damages are generally not available for violations of the right to a free appropriate public education under IDEA, but may be available under Section 504, if the standard for providing a free appropriate public education under Section 504 is violated. Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008); A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3d Cir. 2007) (holding that money damages are available under Section 504); Sellers v. School Bd. of the City of Manassas, 141 F.3d 524 (4th Cir. 1998). Additionally, monetary damages are available in discrimination and harassment actions brought under Section 504.

Print Chapter 2-Accessibility


Section 504 Handbook

Chapter 2
Program Accessibility

Section 504: Subpart C—Program Accessibility
Discrimination Prohibited 34 CFR 104.21
Existing Facilities 34 CFR 104.22
New Construction 34 CFR 104.23
Accessibility Standards

Section 504 requires that all programs and activities of the school district be accessible to individuals with disabilities. This includes not only students and staff, but also members of the community, parents and others who come to school or school activities for plays, concerts, conferences, sporting events and a variety of other purposes. The requirement applies not only to classrooms but media centers, computer labs, parking lots, walkways, playgrounds, rest room facilities, auditoriums, cafeterias, gymnasiums, swimming pools, and water fountains. However, it is the program, not a specific room which must be accessible. See Lee County (VA) Pub. Schs., 68 IDELR 26 (OCR 2016).

A district is not required to make structural changes to an existing building if accessibility can be achieved in other ways. The ADA mandates, however, that any new construction as well as alterations to existing facilities must be designed and constructed as to be “readily accessible and useable.” Again, the intent of the law is to ensure that individuals with disabilities are able to access school services, regardless of their disability.

Unless it is related to a denial of FAPE, exhaustion of the IDEA's procedures is not required for a Section 504 or ADA accessibility claim. Fry v. Napoleon Community Schools, 580 U.S., ___, 137 S.Ct. 743 (2017). Exhaustion of the IDEA administrative procedures is unnecessary where the essence of the plaintiff's suit is "something other than the denial of the IDEA's core guarantee of a FAPE."

Courts have reached conflicting conclusions on the issue of whether there is a private right of action exists to challenge facility design defects under Section 504 or the ADA. In Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016), the court noted there is a distinction between facilities and a public service, program or activities. The court concluded facilities are not a service within the meaning of the ADA, and an employee could not bring a private cause of action based on facility design defects. The 5th Circuit reached an opposite result in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011), holding a private right of action exists to enforce Title II and the Rehabilitation Act to the extent they would require a city to make reasonable modifications to newly built and altered sidewalks.

Section 504: Subpart C—Program Accessibility

Discrimination Prohibited 34 CFR 104.21

A person with a disability cannot be excluded from participation or subjected to discrimination because a school district’s facilities or programs are inaccessible or unusable by individuals with disabilities.

Existing Facilities 34 CFR 104.22

Facilities which were in existence at the time Section 504 regulations were finalized did not need to be made accessible, but the overall programs and activities of the district must be accessible and usable by individuals with disabilities. This can be achieved through redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, and methods which fall short of remodeling old facilities to make them totally accessible to individuals with disabilities. The methods chosen should serve persons with disabilities in the most integrated setting appropriate.

Schools are required to make structural changes in existing facilities only if other methods do not effectively allow access for individuals with disabilities.

At the time the Section 504 regulations were finalized, and again when the ADA regulations were finalized, schools were required to develop transition plans to ensure accessibility.

New Construction 34 CFR 104.23

New construction must be designed and constructed, in compliance with federal accessibility standards, to be readily accessible and usable by individuals with disabilities. When altering existing facilities through remodeling or additions, to the maximum extent feasible, schools must try to ensure the altered portion of the facility is accessible. This may include making parking lots, sidewalks, doors, hallways and other areas leading to the altered area accessible.

For additional information, see the FAQ about Disability Discrimination on the US Department of Education website at ed.gov/about/offices/list/ocr/frontpage/faq/disability.html#disaccsvc1

Accessibility Standards

A facility renovated before March 15, 2012, must comply with the UFAS, 1991 ADA Standards or 2010 ADA Standards. Renovations that occur on or after March 15, 2012, must comply with the 2010 ADA Standards.

For existing facilities—i.e., those built before June 3, 1977 when the Section 504 regulations for new construction went into effect—a district may use several options to ensure program accessibility, including:

  • Reassigning classes, activities or other services to accessible facilities;
  • Acquiring or redesigning equipment to make a facility accessible;
  • Assigning an aide; or
  • Remodeling facilities so they meet current accessibility standards.

In addition to program accessibility, districts should be aware of and address compliance concerns the accessibility of:

  • Common interior areas such as restrooms, cafeterias and gymnasiums;
  • Exterior playgrounds, parking lots, sidewalks, pathways and ramps;
  • Entrances and interior doors;
  • Alarms; and
  • Elevators or other lifts.

Finally, the school must provide notice of accommodations that are available. A school that has made its facilities totally accessible may be out of compliance with Section 504 simply because it lacks signage regarding the availability of such features.

Cases on Point

New Construction must comply with accessibility guidelines for new construction.
  • Constellation (OH) Community Schools, 48 IDELR 166 (OCR 2007). An Ohio district believed it was complying with federal accessibility guidelines when it installed an elevator in a three-story charter school, but that did not allow it to avoid liability for violating Section 504. OCR concluded that the new elevator failed to meet compliance standards because it was too small for students using wheelchairs and had doors that had to be operated manually. OCR explained that the elevator, installed in the summer of 2001, failed to meet either the UFAS or ADAAG guidelines for new construction.
  • Spieler v. Mt. Diablo Unified School District, 2007 WL 1795701, 48 IDELR 188 (N.D. Cal. 2007). The district was required to replace an engineered wood fiber surfacing with rubberized surfacing on its renovated playground.
All Programs and Services must be accessible.
  • Monticello (KY) Independent Schools District, 48 IDELR 225 (OCR 2006). Although an elementary school’s parking lots, entrances and classroom doors complied with federal accessibility guidelines, OCR concluded that a Kentucky district violated Section 504 by failing to provide accessible elevators and restrooms.
Notice may be required; post signs to give notice of accessible seating, entrances, etc.
  • Scott County (KS) U.S.D. No. 466, 47 IDELR 16 (OCR 2006). The district installed a ramp at one entrance to an elementary school’s cafeteria, designated handicapped parking spaces, and installed a wheelchair lift in its administration building, it violated Section 504 by failing to post signage notifying patrons of the availability of these options and failed to provide instructions for their use.
  • Water Valley (MS) School District, 48 IDELR 291 (OCR 2007). Although a Mississippi district offered an acceptable alternative to bleacher seating by allowing students with mobility impairments to watch events from a gymnasium’ stage, it violated Section 504 and the ADA when it failed to post signs regarding the availability of alternative seating.
  • Welch (OK) Public Schools, 46 IDELR 261 (OCR 2006). Although the district’s gymnasium had the minimum number of aisle seats without fixed armrests required by the ADA accessibility guidelines, the district violated Section 504 by failing to post notice about the availability of those seats at the ticket booth and to identify the seats with appropriate signage.
Alterations to existing facilities are not required if an adequate alternative is available.
  • Knox County (TN) School District, 62 IDELR 153 (OCR 2013), a district's reassignment of a student's classes and other activities to an accessible floor in the school building or assigning an aide or providing accommodations to help the student access classes and activities resolved OCR's accessibility concerns.
  • Beaumont (TX) Independent School District, 57 IDELR 142 (OCR 2011). The district made classrooms with rounded door knobs accessible through a policy which required classroom doors to be kept open during passing periods between classes.
  • North Kansas City (MO) School District, 52 IDELR 271 (OCR 2009). Although the district could not make seating in a gymnasium built in 1949 accessible for wheelchair seating, it achieved compliance with Section 504 by holding its basketball games in a facility with wheelchair seating.
  • Malone (NY) Central School District, 48 IDELR 196 (OCR 2006). The fact that a high school’s track and field facility was not accessible from the school’s main building did not make a New York district liable for violating Section 504 where the district offered an adequate alternative for students with mobility impairments by providing bus service to the track and field facility.
  • Pemberton (NJ) Twp. School District, 46 IDELR 197 (OCR 2006). The district resolved its Section 504 compliance issue by relocating a student’s band and music classes to the first floor of the school rather than the third floor.
Restrooms-At least some restrooms must be readily accessible and usable by individuals with disabilities.
  • Kirtland (OH) Local Schools, 52 IDELR 299 (OCR 2009. Where the access lift to the “accessible” bathroom on the lower floor was often blocked, the bathroom was not readily accessible for students with disabilities.
  • Monticello (KY) Independent Schools District, 48 IDELR 225 (OCR 2006). Renovated restrooms failed to meet accessibility standards because grab bars were too low, the force required to open the stall doors was too much, and uninsulated drain pipes posed a risk of injury. See also, Hartland (CT) Public School District, 51 IDELR 53 (OCR 2008)(improper placement of toilets, grab bars, mirrors, sinks, and soap dispensers);
  • Pleasant Township (IN) School Corporation, 49 IDELR 262 (OCR 2007)(sink pipes uninsulated; grab bars, mirrors, and stalls failed to meet the applicable standards for height, width, and placement).
Entrances and Interior Doors including doors on elevators or lifts, should have accessible handles and cannot require excessive force to open. Alternative options must provide equal access.
  • Charlotte Valley (NY) Central School District, 67 IDELR 160 (OCR 2015), OCR determined that because a school's entrance was locked at all times and did not have a curb ramp, the school was inaccessible in violation of Section 504 and Title II. The district agreed to make structural changes to address OCR's concerns.
  • Buffalo (NY) City School District, 46 IDELR 111 (OCR 2006). Equal access was not provided where the main entrance allowed visitors to be buzzed in within seconds of communicating with office staff, but the accessible entrance required visitors to ring a doorbell and wait for an employee to open the door.
Elevators and Lifts-Accessibility complaints involving elevators and lifts suggest that districts should pay close attention to the internal dimensions of the elevator or lift, the ease of use of the controls, and the availability of the elevator or lift when needed.
  • Champion (OH) Local Schools, (OCR 2014), the lack of wheelchair lifts in a century-old school building denied students with disabilities access to their educational programs. OCR concluded that the district would need to construct at least three chair lifts throughout the school and implement transition plans to accommodate students with mobility impairments.
  • Ringwood (NJ) Public School District, 114 LRP 41429 (OCR 2014). The school could not establish a two-story elementary school was fully accessible to children with mobility impairments merely by alleging that it had a wheelchair lift. The lift did not fully address accessibility because children were unable to enter, operate, or exit the lift without assistance. In a resolution agreement, the district agreed to make the school accessible through alternative means or structural modifications.
  • Mahopac (NY) Central School District, 57 IDELR 112 (OCR 2011), The interior doors leading to each of the three lifts in a New York high school required excessive force to open. See also, Faquier County (VA) Public Schools, 53 IDELR 29 (OCR 2008).
  • Lenawee Intermediate School District,63 IDELR 300(SEA MI 2014). A school district’s failure to transport a student with a damaged wheelchair on a wheelchair lift did not violate the student’s rights. While school districts have a duty to implement all provisions of a student's IEP, they also must comply with state and local transportation safety policies. Parents were responsible for the wheelchair's maintenance, repairs, and safe operation.
Assembly Areas-Accessibility complaints about gymnasiums, stadiums, and other assembly areas involve access routes or the lack of wheelchair seating.
  • In New York City (NY) Department of Education, 115 LRP 6299 (OCR 2014), OCR determined that a school auditorium was inaccessible to individuals with disabilities due to the absence of an entrance ramp. Because the building was constructed prior to June 3, 1977, OCR opined that the district could make school events and assemblies accessible by redesigning the auditorium's equipment or by reassigning programs and services to accessible locations.
  • Martin County (FL) School District, 56 IDELR 241 (OCR 2010). A Florida district made an elementary school cafeteria accessible to children in wheelchairs with the installation of new tables.
  • Wolfe City (TX) Independent School District, 52 IDELR 234 (OCR 2009). The cafeteria entrance could only be accessed by stairs.
  • Pearl River (NY) School District, 51 IDELR 168 (OCR 2008). The district discriminated against individuals with mobility impairments by requiring them to access a gymnasium constructed in 1966 using an uncovered outdoor pathway.
Playgrounds-The type of play equipment, the amount of play equipment provided, the path to the playground and the type of ground covering are common issues in complaints about the accessibility of playgrounds.
  • Bladen County (NC) Schs., 68 IDELR 53 (OCR 2016). The school district had a legitimate, nondiscriminatory reason for ensuring an accessible swing it purchased was safe and would not interfere with the student's PT goals before allowing the student to use the equipment.
  • In Clover (SC) School District, 66 IDELR 291 (OCR 2015), OCR found that a playground, which lacked woodchips on its floor and had an elevated play area, was inaccessible according to the ADA accessibility standards. The district agreed to evaluate all play areas and ensure that these areas are made complaint with Section 504 and Title II.
  • East Clinton (OH) Local Schs., 66 IDELR 146 (OCR 2015) A school playground did not comply with applicable accessibility standards because students with mobility impairments had a difficult time traversing areas which contained pea gravel.
  • Cartwright (AZ) Elem. Sch. Dist., 51 NDLR 34 (OCR 2014) District failed to make its playgrounds, baseball fields, soccer fields, and outdoor seating areas accessible to students with mobility impairments.
  • El Paso (TX) Indep. Sch. Dist., 114 LRP 31026 (OCR 2014). The 2010 ADA Standards for Accessible Design clarify that a "play area" meets the definition of "facility" under the Section 504 and Title II regulations. The 2010 ADA Standards for Accessible Design define a “play area” as "a portion of a site containing play components designed and constructed for children." A "play component" is defined as “an element intended to generate specific opportunities for play, socialization, or learning. Play components are manufactured or natural; and are stand-alone or part of a composite play structure." The applicable requirements for play areas and play components are found in Section 1008 of the 2010 ADA Standards for Accessible Design.
  • Shelby County (TN) School District, 57 IDELR 263 (OCR 2011). A Tennessee district brought a playground into compliance with ADA Guidelines by replacing a shredded rubber surface with a smooth, poured-in-place surface and adding six new play stations to accommodate students with mobility impairments.
  • Sheepscot Valley (ME) Regional School Unit #12, 56 IDELR 144 (OCR 2010). While some of the playground was accessible, because the swings were in a hilly area with a steep incline and the dirt and pea gravel surfaces under the swings were not firm or slip-resistant, OCR found that the ground-level components were not readily accessible to children with mobility impairments.
  • Atlanta (GA) City School District, 53 IDELR 202 (OCR 2009). Even though many playground components were accessible, none of the swings on an elementary school playground were accessible to students with mobility impairments.
Parking lots generate complaints about the number of accessible spaces, the location of the spaces and their availability when needed.
  • Landry Parish (LA) Schools, 67 IDELR 129 (OCR 2015). OCR concluded a district needed to restripe and resurface two high school parking lots to make them accessible to students with disabilities. School districts still had a choice between the UFAS and the ADAAG for new construction, even though the ADAAG was updated in 2004.
  • Charlotte Valley (NY) Central Sch. Dist, 67 IDELR 160 (OCR NY 2015). The district’s parking lot that was restriped in 2014 and the playground that was installed in 2000-01, were subject to the "new construction" standards. OCR noted the following deficiencies: 1) lack of pole signage; 2) lack of aisles for accessible spaces; 3) lack of spaces that were van accessible; and 4) lack of a continuous route to the playground equipment.
  • School District of Upper Moreland Township (PA), 50 NDLR 169 (OCR 2014). A district may open itself up to liability for disability discrimination if it allows regular vehicles to park in accessible parking spaces.
  • Richmond (MI) Community Schools, 52 IDELR 168 (OCR 2009). A renovated middle school parking lot had too few accessible spaces and relocation of the accessible spaces greatly increased their distance from the school’s front entrance.
  • Cypress-Fairbanks (TX) Independent School District, 45 IDELR 284 (OCR 2005). The elementary school had a sufficient number of accessible parking spaces whose dimensions and slopes conformed to the ADA Guidelines. The district also promptly responded to complaints about illegal parking in accessible spaces.
Sidewalks, ramps and other travel pathways should be unobstructed, meet accessibility guidelines and provide equal access.
  • School Union 49 (ME), 51 IDELR 113 (OCR 2008). By adopting an "across the day" (rather than morning only) snow removal policy, the district ensured that the student could travel between classroom buildings.
  • Union County (GA) Schools, 51 IDELR 226 (OCR 2008). A sixth-grader with a mobility impairment did not have equal access to school buildings where the school’s access ramps failed to meet the federal accessibility guidelines and the accessible pathway exposed the student to the elements.
  • Clark County (NV) School District, 51 IDELR 258 (OCR 2008). The bumps and breaks in a middle school’s concrete pathways made those pathways inaccessible to individuals with mobility impairments
  • Bowie (TX) Independent School District, 46 IDELR 289 (OCR 2006). The district needed to construct an accessible route that connected all of its new softball field’s entrances with all other buildings, facilities, elements, and spaces located on the same site. OCR also required accessible disabled parking, sidewalks, concession stands, and restrooms.
Alarm Systems-Consider the needs of students with visual and hearing impairments when installing alarm systems.
  • Detroit (MI) Public Schools, 54 IDELR 234 (OCR 2009). Lack of a visual warning system raised compliance concerns. The school’s system of informing deaf students of emergencies was inadequate because it did not address situations in which students were alone outside the classroom, or situations in which they were accompanied by staffers who did not know sign language.

Print Chapter Three-Preschool, Elementary & Secondary Programs


Section 504 Handbook

Chapter 3
Preschool, Elementary & Secondary Programs:
A School District’s Responsibilities

School District Responsibilities
Child Find
104.32 Location and notification
Students in Private Schools
Compliance Coordinator Responsibilities

The intent of Section 504 is to provide students with disabilities equal access to educational programs, services, and activities. Students with disabilities may not be denied participation in school programs or activities simply because they have a disability. To ensure discrimination does not occur, Section 504 requires school districts to assume certain responsibilities, including appointing a coordinator in the district to oversee compliance with Section 504 obligations. The responsibilities of the school and this coordinator, along with other key players are discussed below.

School District Responsibilities

The Section 504 regulations require the school district to:

  • Attempt to identify and locate all children with disabilities on an annual basis;
  • Provide a “free and appropriate public education” to all students with disabilities;
  • Ensure that students with disabilities are educated with non-disabled students to the maximum extent appropriate;
  • Establish nondiscriminatory evaluation and placement procedures;
  • Establish procedural safeguards, including notice of proposed actions and the right to request a due process hearing; and
  • Ensure students with disabilities the equal opportunity to participate in nonacademic and extracurricular services and activities.

In addition, the district must designate an employee who will be responsible for ensuring compliance with Section 504 regulations. This person is usually known as the Section 504 Compliance Coordinator. The district’s annual notice to parents should provide the name and telephone number of the Section 504 Coordinator. The district must also develop complaint policies and procedures for parents, students, and employees.

For larger school districts, or districts with multiple buildings, it is probably best to designate a building coordinator at each school building. For convenience, Appendix A provides a form for keeping a list of the current compliance coordinators and their contact information.

Child Find

“Child find” refers to the requirement that districts annually identify and locate all children with disabilities between the ages of 3 and 22 who are residents of the school district. “Child find” is an ongoing process and includes those children attending private, parochial, and home schools. Many districts provide notice to parents of the district’s obligation to serve disabled children with their back-to-school packet mailed home at the start of each new school year. There are other methods districts should consider:

  • Post announcements in public locations
  • Use the news media; announce in the local newspapers
  • Distribute announcements and referral forms to local day care providers, public and private preschools, and private and parochial schools
  • Send letters to local health care providers requesting their assistance
  • Send announcements and referral forms to community agencies
  • Train school staff in the district’s Section 504 and special education referral process.

104.32 Location and notification

A recipient that operates a public elementary or secondary education program or activity shall annually:

  • Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and
  • Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient’s duty under this subpart.

Students in Private Schools

A school district must provide a free, appropriate public education, as defined by Section 504, to all students with disabilities protected by Section 504. As long as the school district has offered a free, appropriate public education in its public facilities, it is not obligated to provide Section 504 services or accommodations to students whose parents choose to enroll them in private schools.

Parents of a student enrolled in a private school may request a Section 504 evaluation by a public school district. The district of the student’s residence, not the district in which the private school is located, has the duty to evaluate if such evaluation is requested. West Seneca (NY) Sch. Dist., 53 IDELR 237 (OCR 2009).

Compliance Coordinator Responsibilities

The school district must appoint an individual to serve as the district’s Section 504 Compliance Coordinator. Larger school districts may also appoint compliance coordinators in each school. Additionally, within the school, one employee will probably be named the case manager for an individual student. The responsibilities of each of these individuals are outlined below.

School District Section 504 Compliance Coordinator should:

  • Understand the requirements and intent of Section 504 regulations;
  • Address system-wide issues for 504 compliance;
  • Establish and monitor Section 504 referral, identification, and review process and procedures, including annual notice;
  • Establish protocols with building coordinators for identifying students who may be eligible under Section 504;
  • Assist with transition of Section 504 students to new schools;
  • Provide technical assistance to building personnel;
  • Maintain data and prepare annual compliance reports;
  • Develop awareness materials and workshops for school staff and families;
  • Implement the Section 504 complaint procedures and impartial hearing procedures;
  • Conduct self-reviews of policies, practices and procedures for Section 504 compliance;
  • In conjunction with the school attorney, serve as the district liaison to the Office of Civil Rights.

School Section 504 Compliance Coordinators should:

  • Participate in district-wide training on Section 504 to ensure understanding of the requirements of the law and application of district-wide policies and procedures;
  • Act as a contact person for parents, staff and students when questions about Section 504 arise;
  • Participate on or be in communication with the building SIT committee, the school nurse or other school personnel to help identify students who may need to be evaluated under Section 504;
  • Ensure staff are using current 504 forms and following established procedures for notice to parents, evaluation, identification, placement and review;
  • Provide data, as requested, to the District Section 504 Compliance Coordinator;
  • Ensure information about Section 504 students is accurately recorded in school district databases and check this information for students transferring into the school;
  • Coordinate transition of 504 student transferring into and out of the school;
  • Act as or ensure a case manager is designated for each student referred for evaluation or identified as eligible under Section 504.

A Case Manager may, among other things:

  • Send notices and schedule meetings regarding evaluation, placement or review of services;
  • Gather data and other relevant information for Section 504 meetings;
  • Ensure 504 documents are written and that copies are provided to parents and all relevant staff members;
  • Ensure documents are placed and status is appropriately recorded in any electronic student information system;
  • Provides information and/or training on 504 plan requirements to all teachers or staff responsible for implementation of the plan;
  • Monitor implementation of the 504 plan and addresses issues or concerns that arise;
  • Schedule periodic review of the plan on at least an annual basis.

Print Chapter 4-Parental Rights & Procedural Safeguards


Section 504 Handbook

Chapter 4 Preschool, Elementary & Secondary Programs
Parental Rights & Procedural Safeguards

Parental Rights
Notice of Parental Rights
Procedural Safeguards
Notice
Examining Records
Impartial Hearing
Review Procedure

Parental Rights

Section 504 provides certain parental rights. Under Section 504, parents have the right to:

  • Have their child take part in, and receive benefits from public education programs without discrimination based on a disability;
  • Have the school advise them of their rights under federal law;
  • Receive written notice with respect to identification, evaluation, or placement of their child;
  • Have their child receive a free appropriate public education, including the right to be educated with other students without disabilities to the maximum extent appropriate and the right to have an equal opportunity to participate in school and school-related activities;
  • Have their child educated in facilities and receive comparable services to those provided students without disabilities;
  • Have their child receive accommodations under Section 504 of the Rehabilitation Act of 1973 if s/he qualifies;
  • Have evaluation, educational, and placement decisions made based upon a variety of information sources, and by individuals who know their child, the evaluation data, and placement options;
  • Have transportation provided to a school placement setting at no greater cost than would be incurred if the student were placed in a program operated by the school;
  • Give their child an equal opportunity to participate in non-academic and extracurricular activities offered by the school;
  • Examine all records relating to decisions regarding their child’s identification, evaluation, educational program, and placement;
  • Obtain copies of educational records at a reasonable cost unless the fee would effectively deny them access to the records;
  • Receive a response from the school to reasonable requests for explanations and interpretations of their child’s records;
  • File a complaint with the Section 504 Compliance Coordinator, under the district’s complaint or grievance procedures;
  • Request mediation to settle disputes arising out of any decision about your child’s identification, evaluation, educational program or placement;
  • File a complaint with the Office for Civil Rights of the United States Department of Education; and
  • Request an impartial due process hearing to settle disputes arising out of any decision about their child’s identification, evaluation, educational program or placement. Parents and their child may take part in the hearing and have an attorney represent them in the process.

Notice of Parental Rights

It is advisable to publish the Notice of Parent Rights document in a student or parent handbook or other document that is distributed annually to students and parents at enrollment. Notices may also be published on the school district website.

A sample of a Notice of Parental Rights document is included in the forms in Appendix B of this handbook. It is recommended that this document be provided to any parent who requests a Section 504 evaluation. The document should also be provided to parents when the annual meeting to review Section 504 services is held.

Procedural Safeguards 104.36

A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.

A school district must design and implement a system of procedural safeguards that apply any time a district takes any action regarding the identification, evaluation, or educational placement, including services and accommodations provided, of a student protected by Section 504.  The procedural safeguards must include:

  • Notice;
  • The opportunity of the parent to examine relevant education records;
  • The opportunity for an impartial hearing, including parent participation and representation by counsel, if desired; and
  • A review procedure.

The procedural safeguard requirements under Section 504 are not as extensive as those required under IDEA. For students protected by both IDEA and Section 504, compliance with the procedural safeguard provisions of IDEA constitutes compliance with Section 504 requirements.

Notice

While the regulations do not specifically require written notice under section 504, OCR has generally required that written notice of parent rights be provided in writing. Additionally notice of any district proposed actions regarding the identification, evaluation, or educational placement, including services and accommodations provided, of a student protected by Section 504, should be provided to the parents in writing.

Examining Records

The right to examine records under Section 504 may be broader than the rights of parents under the Family Educational Rights and Privacy Act. The FERPA requirement that parent have access to educational records of their student applies to “educational records,” while the Section 504 language references “relevant records.” In Indian Prairie (IL) School Dist., 51 IDELR 53 (OCR 2011), OCR concluded the district violated Section 504 by taking several months to provide the parent with an acoustical evaluation of the child’s classroom. This type of report would most likely not be considered an educational record.

Impartial Hearing

When the parents and the school cannot agree about the identification, evaluation, educational program or placement of a student with a disability under Section 504, parents are entitled to a due process hearing to resolve the issues.

The regulation requires only the right of the parents to be present and the right to representation. OCR has indicated a due process hearing procedure does not have to allow for cross-examination of witnesses or recording by a court reporter. Houston (TX) Independent School District, 25 IDELR 163 (OCR 1996). The school can allow for cross-examination of witnesses and provide additional rights if it chooses to do so. The school should use procedures that allow for a full and fair hearing of the issues.

Section 504 does not specify who will conduct the hearing or how the hearing officer will be chosen. OCR has indicated the hearing officer should not be an employee of the district. Additionally, school board members may not serve as the impartial hearing officer. Mathews County (VA) Pub. Schs., 114 LRP 42768 (OCR 2014). Many districts provide that the hearing will be before an impartial hearing officer selected by the board of education. A state trained due process hearing officer may be willing to serve in this capacity.

Ensure your documents indicate how requests for a due process hearing should be submitted in writing to the school district. Generally, these requests should be directed to the District Compliance Coordinator. If a parent submits a request for a due process hearing to a principal or building coordinator, that person should forward the request to the District Coordinator.

Upon receipt of a request for hearing, the Section 504 Coordinator secures the services of an impartial hearing officer, approved by the board. Your local procedures should identify the timeline for holding the hearing and notifying parents of the time and place for the hearing.

Once a hearing officer is hired, the coordinator should provide parents with notice of the following prior to the date set for the hearing:

  • A statement of the time and place where the hearing will be held.
  • A statement that relevant student records are available for examination.
  • A short and plain statement of the matters asserted.
  • A statement of the rights that will be afforded at the hearing:
  • The right to be represented by counsel; and
  • The right of the student and the parents to be present at the hearing;

The following are rights typically afforded to students in suspension or expulsion hearings. You may provide these rights in Section 504 hearings, but you are not required to do so.

  • The right to confront and cross-examine witnesses called by the school district at the hearing;
  • The right to present their own witnesses;
  • The right to have an orderly hearing; and
  • The right to a fair and impar­tial decision based on the evidence presented at the hearing.

The hearing officer presides over the hearing, swearing in witnesses, and determining whether the evidence presented should be admitted. The rules of evidence do not apply to these proceedings, but any evidence offered by either party should be relevant to the issues to be decided.

Because the proceeding may result in an appeal, it is best practice to record the hearing. If appealed, the recording may be provided to the board, or ultimately a court.

The hearing officer’s decision should be reduced to writing and include the date, findings of fact and conclusions of law. The decision should be provided to the parents and to the school district representative within an established time frame. The decision of the hearing officer is binding on all parties concerned, subject to the review procedure established by the school district.

Review Procedure

Many school districts allow a parent dissatisfied with the result of the due process hearing to appeal the decision to the board of education or to another appointed appeal officer. The district’s procedures should establish to whom a written notice of appeal should be provided and in what time frame. Procedures should also define the timeline for holding the appeal hearing and the rights that will be afforded at the hearing. Generally, the board or the appeal officer should issue a written opinion in within a short time frame after the hearing concludes. The decision of the board or review officer in this matter is final but is subject to appeal to a Kansas district court pursuant to K.S.A. 60-2101(d), which allows for appeal from the decision of a school board.

(For additional information, see Appendix F, Questions 42-47)

Print Chapter 6-Free Appropriate Public Education & Placement


Section 504 Handbook

Chapter 6
Preschool, Elementary & Secondary Programs
Free Appropriate Public Education & Placement

Free Appropriate Public Education
Related Services
Aids
Accommodations
Accommodations in Accelerated Courses
Modifications
Writing a 504 Plan
Violating the Right to a Free Appropriate Public Education
Placement—Implementing the Section 504 Plan
Accommodation Examples for Specific Disabilities

Free Appropriate Public Education

Section 504 requires school districts to provide eligible students with a “free appropriate public education.” Under the Section 504 regulations, “appropriate education” is defined as “the provision of regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met” and are developed in compliance with Section 504 procedural requirements.

“Free” means that the services are provided without cost to the parent. However, parents can be required to pay the same fees any other parent pays for participating in the service. If a school district charges $25 for participation in it’s after school program, it can charge the parents of the student with a disability the fee. It cannot require the parent to pay for the nurse who is present to monitor the student’s health needs.

When elementary and secondary education services are at issue, Section 504 is not limited by a reasonable accommodation requirement. OCR Staff Memorandum, 16 IDELR 712 (OCR 1990). In order to ensure the needs of a student with a disability are met as adequately as the needs of students who do not have a disability, schools may need to provide:

  • Special education and related services;
  • A related service even though special education is not necessary;
  • Accommodations and classroom modifications;
  • Aids;
  • Modifications to district policies and procedures;
  • Other services or modifications that put the student on equal footing with nondisabled peers.

Whenever a student needs or is believed to need special education, IDEA procedures should be followed. Compliance with IDEA meets Section 504 requirements. No student should have both an IEP and a Section 504 plan. Any services, accommodations or modifications a special education student needs should be considered in the development of the student’s IEP.

Related Services

“Related services” is a term that is not specifically defined in the Section 504 regulations, although it is defined in the Individuals with Disabilities Education Act. The term is used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic and evaluation services and transportation. School health services, such as administration of medication or other services provided by a school nurse or trained health aide, could also be considered an eligible related service, depending on the student’s needs. Students who need this type of service to be on equal footing with other students, whether or not they need special education, may qualify for a related service under Section 504. When provided under Section 504, the service is funded out of the general fund, not special education funds.

(For more information, see Appendix G, Question 8.)

Aids

Again, “aids” are not defined in Section 504, but recent OCR opinions use the term. IDEA speaks of supplementary aids and services, which include any type of aid, support or service, provided in the regular classroom or other learning environment, which allows a student to be educated in the least restrictive environment to the maximum extent appropriate. The Americans with Disabilities act requires public entities to provide “auxiliary aids and services.” Some examples of such services are contained in the box on the next page.

Examples of Auxiliary Aids and Services

  • Qualified interpreters on-site or through video remote interpreting (VRI) services;
  • Notetakers;
  • Real-time computer-aided transcription services;
  • Written materials;
  • Exchange of written notes;
  • Assistive listening devices or systems;
  • Open and closed captioning, including real-time captioning;
  • Videotext displays;
  • Accessible electronic and information technology; Qualified readers;
  • Taped texts;
  • Audio recordings;
  • Brailed materials and displays;
  • Screen reader software;
  • Magnification software;
  • Optical readers;
  • Secondary auditory programs (SAP);
  • Large print materials;
  • Other effective methods of making aurally or visually delivered materials available to individuals with hearing or vision impairments.

Accommodations

Accommodations are program adjustments made to remove disability-related barriers to a student’s full participation in school, including nonacademic and extracurricular activities, such as field trips, athletics, and assemblies. Accommodations are made in order to provide a student equal access to learning and equal opportunity to demonstrate what he or she knows. Accommodations should not alter or lower the standards of the coursework or standards required for participation in extracurricular activities. It is important that accommodations be:

  • Disability specific;
  • Necessary, not merely helpful;
  • Individualized;
  • Documented;
  • Communicated to all individuals involved.

Types of Accommodations

Accommodations typically fall within the following categories:

  • Environmental strategies;
  • Organizational strategies;
  • Behavioral strategies;
  • Presentation strategies; and
  • Evaluation methods.

The following examples of accommodations are intended to serve as a starting place for 504 teams designing accommodation plans that meet a student’s specific needs. The best 504 plans incorporate teacher expertise and available regular education resources. The Student Support Team or General Education Intervention process helps schools identify the resources available to support various student needs. Obviously, the kinds of accommodations schools can provide will vary based on school, level, and other considerations. In each case, the 504 evaluation team must decide the accommodations that will best support a particular student, based on that student’s individual needs.

Sample Accommodations

Environmental Accommodations
  • Physical arrangements of room
  • Preferential seating
  • Lighting adjustments
  • Use of an air purifier
  • Alter location of supplies and materials for easier access
  • Provide a structured learning environment
  • Separate "space" for different types of tasks
  • Possible adapting of non-academic times such as lunch, recess, and physical education
  • Change student seating
  • Utilize a study carrel
  • Alter location or personal or classroom supplies for easier access or to minimize distraction
Behavior Accommodations
  • Provide a behavior plan
  • Provide nonverbal cues
  • Provide frequent feedback
  • Ignore identified inappropriate behaviors
  • Monitor and redirect behaviors
  • Use behavioral management techniques consistently within a classroom and across classes
  • Implement behavioral/academic contracts
  • Utilize positive verbal and/or nonverbal reinforcements
  • Utilize logical consequences
  • Confer with the student’s parents (and student as appropriate)
  • Establish a home/school system for behavior monitoring
  • Post rules and consequences for classroom behavior
  • Put student on daily/weekly progress report/contract
  • Reinforce self-monitoring and self-recording of behaviors
Materials Accommodations
  • Provide alternate formats
  • Use highlighted or underlined reading materials
  • Use a variety of materials including, films, tapes, manipulatives
  • Use technology
Assignment/Organizational Accommodations
  • Break assignments into smaller units
  • Grade for correct answers
  • Allow extra time for completion
  • Use an assignment sheet
  • Model and reinforce organizational systems (i.e. color-coding)
  • Write out homework assignments, check student's recording of assignments
  • Tailor homework assignments toward student strengths
  • Set time expectations for assignments
  • Provide clues like clock faces indicating beginning and ending times
Teaching Strategy Accommodations
  • Use individual or small group instruction
  • Be aware of student’s preferred learning style and provide matching materials
  • Provide frequent breaks
  • Assign a peer tutor or note taker
  • Tape lessons so the student can listen to them again; allow students to tape lessons
  • Use computer-aided instruction and other audiovisual equipment
  • Select alternative textbooks, workbooks, or provide books on tape
  • Highlight main ideas and supporting details in the book
  • Provide copied material for extra practice (i.e. outlines, study guides)
  • Prioritize drill and practice activities for saliency
  • Vary the method of lesson presentation using multi-sensory techniques:
    • lecture plus overhead/board demonstration support;
    • small groups required to produce a written product;
    • large groups required to demonstrate a process;
    • audio-visual (i.e. filmstrips, study prints) methods;
    • peer tutors or cross-age tutors;
    • demonstrations, simulations;
    • experiments;
    • games
  • 1-to-1 instruction with other available adults
  • Ask student to repeat/paraphrase context to check understanding
  • Have a mentor to work with student in an interest area or area of greatest strength
  • Simplify and repeat instructions about in-class and homework assignments;
  • Accompany oral directions with written steps
  • Vary instructional pace
  • Reinforce the use of compensatory strategies, i.e. pencil grip, mnemonic devices
  • Vary kind of instructional materials used
  • Assess whether student has the necessary prerequisite skills.
  • Determine if materials are appropriate to the student’s current functioning levels.
  • Reinforce study skill strategies (survey, read, recite, review)
  • Introduce definition of new vocabulary and review to check for understanding
Testing Accommodations
  • Adjust the length of the test
  • Orally administer the test
  • Provide take-home tests
  • Provide a sample or practice test
  • Provide alternate formats
  • Administer frequent quizzes rather than exams
  • Change the location where the test is administered
  • Limit amount of material presented on a single page
  • Provide tests in segments
  • Provide personal copy of test tools and allow for color-coding/ highlighting
Health Accommodations
  • Administer medication per protocol
  • Modified physical education
  • Allow for absences
  • Ensure privacy
  • Monitor condition
Other Accommodations
  • Group or individual counseling
  • Other agency involvement
  • Disability awareness training for staff and students
  • Disability-specific staff training

Examples of disability-specific accommodations which may or may not be appropriate for all students with the disability are included at the end of the chapter. Again, these examples are intended to be used as a starting place only. Most students will need only some, not all of the suggested accommodations. The Section 504 team must consider how the disability limits the student’s ability to perform a major life activity and individualize accommodations based on the student’s need. Providing too much accommodation can be dangerous, depriving a student of the right to receive an education as much as providing no accommodation.

Accommodations in Accelerated Courses

OCR has rejected the notion that accommodations are not possible in accelerated courses. In its Dear Colleague Letter: Access by Students with Disabilities to Accelerated Programs (OCR 2007)(See Appendix J), OCR recognizes there may be limits to accommodations in this area, but it falls short of providing clear guidance for schools faced with demands to water down the curriculum.

Cases in this area generally involve two issues:

  • Blanket prohibitions on participation of students with disabilities in accelerated programs; and
  • Policies which require students to give up services and accommodations as a condition of enrollment in accelerated courses.

Concluding that accelerated classes are part of a free appropriate public education, OCR has found the practice of allowing 504 accommodations for regular classes, but disallowing them for honors classes, violates Section 504. See Wilson County (TN) Sch. Dist., 50 IDELR 230 (OCR 2008). If a student needs accommodations or related aids and services like texts in Braille, extended time for taking tests or completing homework, a computer for note taking, etc., these accommodations cannot be denied for an accelerated program. However, the DCL does not suggest a student should get additional accommodations for accelerated classes.

In GBL v. Bellevue School Dist. No. 405, 2013 WL 594289, 60 IDELR 186 (W.D. Wash 2013), a student with ADHD and a hearing loss was accepted into a program for highly gifted students. His IEP included 48 accommodations that were applied, but the student asked for additional accommodations when he could not keep up with the rigorous workload. The court indicated the school is not required to make fundamental or substantial modifications to programs or standards, only reasonable accommodations. After the student met his burden of showing the existence of accommodations that would enable him to meet the requirements, the court shifted the burden to the school to show:

  • The requested accommodation would require a fundamental or substantial modification of its program or standards or
  • The requested accommodation, regardless of its reasonableness, would not enable the student to meet the academic standards.

After examining the evidence, the court agreed with the district that a two-hour per night limit on homework would alter the program curricular standards, grading standards and performance expectations. The court agreed that completing homework was essential to the program. The court also found additional time for completing assignments was unnecessary because all of the teachers in the program gave the student full credit, even if an assignment was not handed in in a timely manner.

Modifications

While many modifications may also be classified as accommodations, the most frequent modification requested by Section 504 students is modifications to policies, like attendance policies, where adherence to the policy would penalize the student because of his or her disability.

Cases on Point: Accommodations

District Choice
  • Rylan M. v. Dover Area Sch. Dist., 2017 WL 1862337, 70 IDELR 15 (M.D. Pa. 2017). Districts may choose which accommodations to include in a student's educational program as long as those accommodations provide FAPE. Although parents wanted a medically trained aide after their child with Ehlers-Danlos syndrome fainted in school and had a concussion, the district opted to prevent future incidents by improving the student’s medical protocols and training staff. The student’s physicians did not believe the required an aide.
  • Swanson v. Yuba City School District, 2015 WL 2358629, 68 IDELR 215 (E.D. Cal. 2016), demonstrated that the nurse it chose to provide services to a medically fragile student was qualified and the nurse the parent wanted possessed no unique ability to communicate with or treat the student, the district could select the service provider.
Testing Accommodations
  • Research Triangle(NC) High School, 117 LRP 29315 (OCR 2017). OCR determined that a North Carolina charter school violated Section 504 and Title II when it failed to consider whether a 10th-grader with a degenerating visual condition could have been provided with paper booklets for her state exams.
Lack of Funding
  • Washington State School for the Deaf, 22 IDELR 987 (OCR 1995). Lack of funding does not excuse the failure to provide a free appropriate public education under Section 504.
Categorical Denial of Services for Honors Courses
  • West Windsor-Plainsboro (NJ) Reg’l Sch. Dist., 112 LRP 50373 (OCR 2012). The practice of categorically denying or refusing to consider a particular related aid or service in a particular class violates Section 504. In this case, the district denied students with IEPs in-class support in world language and honors or advanced courses without evaluating them individually.  The district voluntarily resolved the complaint, agreeing to make individual determinations into the need for such services in language or honors courses.
Behavior Intervention Plans
  • Morgan v. Chris L., 106 F.3d 401 (6th 1997). Section 504 requires a district to accommodate a student’s behavioral challenges by developing a Behavior Intervention Plan.  See also Elk Grove (CA) Unified Sch. Dist., 25 IDELR 759 (OCR 1996).

Writing a 504 Plan

Components of the Section 504 Plan

Districts are not required to document agreed upon aids, services and accommodations in a written document, but written documentation is highly recommended. In the absence of documentation, it will be extremely difficult to show OCR that the district is meeting its obligations with regard to Section 504 eligible students.

A 504 plan is a written document detailing the services and accommodations to be provided. The plan generally will include:

  • A description of the disability;
  • A description of how the disability limits one or more major life activities;
  • The basis for determining the disability and its educational impact;
  • Necessary accommodations, aids, services or modifications;
  • A description of the student’s placement [least restrictive environment required];
  • A review or re-evaluation date; and
  • 504 Team members’ names and/or signatures.

Since there are no forms mandated for use, these are just recommended elements that help implementers understand why the plan has been developed and what it strives to address. The written document should help implementers understand the need for the aids, services, accommodations or modifications.

If the district has a form it has developed for an Individualized Health Plan, this may suffice as the Section 504 Plan document, but only if the student has been evaluated in compliance with Section 504 requirements.  Additionally, parents must be given notice of the procedural safeguards under Section 504. See Anaheim City (CA) Sch. Dist., 115 LRP 19319 (OCR 2014) (district provided a student with FAPE by developing an IHP for him after conducting an appropriate Section 504 evaluation); and Union County (NC) Pub. Schs., 64 IDELR 25 (OCR 2014) (although the district provided services to the student pursuant to an IHP, its failure to evaluate her to determine whether she was eligible for services as a student with a disability under Section 504 denied her FAPE).

It is important that teachers be involved in developing the 504 plan. They should provide input regarding the curriculum rigor and requirements and suggest necessary accommodations. It is equally important that the 504 plan be easily implemented and communicated to all school staff involved with the student. Training of staff on Section 504 requirements and their duty to implement accommodations required by the plan may be equally important.

Violating the Right to a Free Appropriate Public Education

When faced with allegations a student is being denied a free appropriate public education under Section 504, OCR looks at the following questions:

  • Was the student evaluated in compliance with Section 504 regulations?
  • Were the student’s needs determined on an individualized basis?
  • Were related aids and services, accommodations or modifications necessary to meet the student’s needs being provided?

As under IDEA, the first two questions address procedure, indicating that failure to follow procedure can be risky. Even when a district is providing necessary accommodations, it may be ordered to take corrective action based on procedural errors. One court has suggested parents need only to allege how a school district denied a student FAPE, as defined by Section 504, and do not need to identify specific regulations they believe the district violated, in asserting a violation of FAPE claim. See Bonsall Unified Sch. Dist. v. Richard C., 2018 WL 628233, 56 NDLR 135 (S.D. Cal. 2018).

A denial of FAPE can occur in many circumstances. In Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities, 69 IDELR 80 (OCR 2016), OCR indicated restraint could deny a student FAPE if it has a traumatic impact or results in the student not receiving needed services. The most serious concerns, however, are raised when the district fails to implement substantive provisions of the Section 504 plan

Placement-Implementing the Section 504 Plan

For students covered by IDEA, compliance with IDEA placement procedures constitutes compliance with Section 504. For students covered only by Section 504, Section 504 requires placement in the least restrictive environment. Placement will most generally be in general education classrooms with the services and accommodations outlined in the 504 plan. However, in some cases, placement in a more restrictive environment may be necessary.  See, e.g., S.P. v. Fairview Sch. Dist., 2014 WL 4924885, 64 IDELR 99 (W.D. Pa. 2014) (the student's frequent absences, coupled with his documented need to remain in a quiet, dark room for 12 to 16 hours when he had a migraine, showed the restrictive placement was necessary to meet the student's unique needs).

(For more information see Appendix F, Questions 4 and 35-37.)

Once a Section 504 plan is written, it must be implemented with fidelity. The cases below provide an overview of the types of mistakes districts frequently make with Section 504 plans.

Cases on Point

Implementation
  • Monroe County (AL) Sch. Dist., 117 LRP 46418 (OCR 2017). A student's IEP called for 275 minutes per week of work on a computer-based program to remediate his deficit in reading and math to be broken up into four sessions each week. OCR's investigation showed usage entries of five days with a cumulative total under 100 minutes. Therefore, the school's implementation of the IEP was inconsistent with the document's terms, amounting to a FAPE denial under Section 504.
  • Arlington (VA) Pub. Schs., 117 LRP 43809 (OCR 2017). A student's service providers were not assisting the staff interventionist or teacher in implementing a modified curriculum for the student as required by the IEP,
  • Shelby County (TN) Schs., 69 IDELR 109 (OCR 2016). The failure to provide testing accommodations required by a middle schooler's IEP during state standardized tests denied the student FAPE.
  • Canyons (UT) School District, 116 LRP 1183 (OCR 2015). If a student is entitled to receive FAPE under Section 504, the failure to properly implement the student's IHP may result in a Section 504 violation, regardless of whether the student has a separate 504 plan or not.
  • Yakima (WA) Sch. Dist. No. 7, 64 IDELR 53 (OCR 2014). Noting that a Washington district failed to properly implement the Section 504 and individual health plan of a high schooler with epilepsy during summer band camp, OCR concluded that the district violated Section 504 and Title II.
  • Durant (IA) Community Sch. Dist., 61 IDELR 145 (OCR 2013). Failure to inform staff of a student’s accommodations.
  • Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012). Inconsistent implementation of approved accommodations.
  • Temecula Valley (CA) Unified Sch. Dist., 54 IDELR 235 (OCR 2009). The teacher responsible for implementing the plan did not have a copy of the plan, was not aware of accommodations under the plan, and had no training on the plan.
  • Buncombe County (NC) Schs., 54 IDELR 235 (OCR 2009). Failure to implement a Section 504 plan.
  • Inglewood (CA) Unified Sch. Dist., 51 IDELR 21 (OCR 2008). Failed to clearly describe the services the student would receive.
  • Laramie County (WY) Sch. Dist., 51 IDELR 169 (OCR 2008). Developed a generic plan rather than a plan based on the student’s unique needs.

Teachers and staff must comply with the Section 504 plan, which is developed to provide those accommodations the student with a disability needs in order to access the curriculum and other school activities. Although often unintentional, failure to implement the agreed upon plan may result in the parent filing a discrimination complaint. In Doe v. Withers, 20 IDELR 422 (W. Va. 1993), the court awarded compensatory damages of $5000 and punitive damages of $10,000 against a teacher, in his individual capacity, after he willfully refused to implement agreed to accommodations.

(For more information see Appendix F, Questions 40-41.)

Accommodation Examples for Specific Disabilities

Here are some examples of accommodations and services that might be considered for specific disability profiles. Please keep in mind that these examples are not intended to be all-inclusive or mandatory. Do not use these examples as a “checklist” as accommodations MUST be made on a case-by-case basis specific to individual need. Please also remember that the mere presence of these conditions does not automatically qualify a student for a Section 504 plan. The disability must significantly limit one or more major life activities or bodily functions before a 504 plan is to be considered. Additionally, the disability must impact the student so that he or she is not afforded access and benefit of programs and services equal to that of non-disabled students.

Allergies

EXAMPLE: The student has severe allergic reactions to certain pollens and foods. For purposes of this example the condition substantially limits the major life activity of breathing and may interfere with the student’s ability to get to school or participate once there.

Possible Accommodations and Services
  • Avoid allergy-causing substances: soap, weeds, pollen, food
  • Provide training for necessary persons: dietary people, peers, coaches, laundry service people, etc.
  • Allow time for shots/clinic appointments
  • Use air purifiers
  • Adapt physical education curriculum during high pollen time
  • Improve room ventilation (i.e. when remodeling has occurred and materials may cause an allergy)
  • Develop health care and/or emergency plans
  • Address pets/animals in the classroom
  • Involve school health consultant in school related health issues
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects

Arthritis

EXAMPLE: A student with severe arthritis may have persistent pain, tenderness or swelling in one or more joints. A student experiencing arthritic pain may require a modified physical education program. For purposes of this example, the condition substantially limits the major life activity of performing manual tasks.

Possible Accommodations and Services
  • Provide a rest period during the day
  • Accommodate for absences for doctors’ appointments
  • Provide assistive devices for writing (e.g. pencil grips, non-skid surface, typewriter/computer, etc.)
  • Adapt physical education curriculum
  • Administer medication following medication administration protocols
  • Train student for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Arrange for assistance with carrying books, lunch tray, etc.
  • Provide book caddie
  • Implement movement plan to avoid stiffness
  • Provide seating accommodations
  • Allow extra time between classes
  • Provide locker assistance
  • Provide modified eating utensils
  • Develop health care plan and emergency plan
  • Provide for accommodations for writing tasks; a note taker, a computer or tape recorder for note-taking
  • Make available access to wheelchair/ramps and school van for transportation
  • Provide more time for massage or exercises
  • Adjust recess time
  • Provide peer support groups
  • Arrange for instructional aide support
  • Install handle style door knobs (openers)
  • Record lectures/presentations
  • Have teachers provide outlines of presentations
  • Issue Velcro fasteners for bags
  • Obtain padded chairs
  • Provide a more comfortable style of desk
  • Adjust attendance policy, if needed
  • Provide a shorter school day
  • Furnish a warmer room and sit student close to the heat
  • Adapt curriculum for lab classes
  • Supply an extra set of books for home use and keep a set at school
  • Let student give reports orally rather than in writing
  • Provide an awareness program for staff and students
  • Monitor any special dietary considerations
  • Involve school health consultants in school health related issues

Asthma

EXAMPLE: A student has been diagnosed as having severe asthma. The doctor has advised the student not to participate in physical activity outdoors. For purposes of this example, the disability limits the major life activity of breathing.

Possible Accommodations and Services
  • Adapt activity level for recess, physical education, etc.
  • Provide inhalant therapy assistance
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Remove allergens (e.g. hair spray, lotions, perfumes, paint, latex)
  • Make field trips that might aggravate the condition non-mandatory and supplement with videos, audiotapes, movies, etc.
  • Accommodate medical absence by providing makeup work, etc.
  • Adjust for administration of medications
  • Provide access to water, gum, etc.
  • Adapt curriculum expectations when needed (i.e. science class, physical education, etc.)
  • Develop health care and emergency plans
  • Have peers available to carry materials to and from classes (e.g. lunch tray, books)
  • Provide rest periods
  • Make health care needs known to appropriate staff
  • Provide indoor space for before and after school activities
  • Have a locker location which is centralized and free of atmosphere changes
  • Adapt attendance policies, school day duration, or 180-day requirement, if needed
  • Place student in most easily controlled environment

Attention Deficit Disorder (ADD) and Attention Deficit Hyperactive Disorder (ADHD)

EXAMPLE: The student does not meet eligibility requirements under IDEA as emotionally disturbed, learning disabled or other health impaired. A doctor regards the student as having ADD, and for purposes of this example, the disability limits the major life activity of learning. The student, because of his disability, is unable to participate in the school’s programs to the same degree as students without disabilities and therefore is substantially limited by the disability.

Possible Accommodations and Services 
  • Seat the student away from distractions and in close proximity to the teacher
  • State classroom rules, post in an obvious location and enforce consistently
  • Use simple, concise instructions with concrete steps
  • Provide seating options
  • Tolerate (understand the need) excessive movement
  • Provide a peer tutor/helper
  • Teach compensatory strategies
  • Train for proper dispensing of medications; monitor for side effects
  • Monitor for stress and fatigue; adjust activities
  • Adjust assignments to match attention span, etc.
  • Vary instructional pace
  • Vary instructional activities frequently
  • Provide supervision during transitions, disruptions, field trips
  • Model the use of study guides, organizing tools
  • Accommodate testing procedures
  • Provide counseling and prompt feedback
  • Initiate frequent parent communication
  • Establish a school/home behavior management program
  • Provide training for staff
  • Have the student use an organizer; train in organizational skills
  • Establish a nonverbal cue between teacher and student for behavior monitoring
  • Assign chores/duties around room/school
  • Adapt environment to avoid distractions
  • Reinforce appropriate behavior
  • Have child work alone or in a study carrel during high stress times
  • Highlight required or important information/directions
  • Provide a checklist for student, parents, or teacher to record assignments of completed tasks
  • Use a timer to assist student to focus on given task or number of problems in time allotted. Stress that problems need to be done correctly.
  • Have student restate or write directions/instructions
  • Allow student to respond in variety of different modes
  • Give student opportunity to stand/move while working
  • Provide additional supervision to and from school
  • Adapt student’s work area to help screen out distracting stimuli
  • Grade for content integrity, and not just neatness/presentation
  • Schedule subjects which require greater concentration early in the day
  • Supply small rewards to promote behavior change
  • Avoid withholding physical activity as a negative reinforcer
  • Allow for periodic, frequent physical activity, exercise, etc.
  • Determine trigger points and prevent action leading to trigger points
  • Provide for socialization opportunities, such as circle of friends

Bipolar Disorder

EXAMPLE: The student was diagnosed as having a bipolar disorder, however the severity (frequency, intensity, duration considerations) of the condition did not qualify the student for IDEA. A properly convened 504 committee determined that the condition did significantly impair the major life activity of learning and fashioned a 504 plan for the student. Here are some possible accommodations for this scenario.

Possible Accommodations and Services
  • Break down assignments into manageable parts with clear and simple directions, given one at a time
  • Plan advanced preparation for transitions
  • Monitor clarity of understanding and alertness
  • Allow most difficult subjects at times when student is most alert
  • Provide extra time on tests, class work, and homework if needed
  • Strategies in place for unpredictable mood swings
  • Provide appropriate staff with training on bipolar disorder
  • Create awareness by staff of potential victimization from other students
  • Implement a crisis intervention plan for extreme cases where student gets out of control and may do something impulsive or dangerous
  • Provide positive praise and redirection
  • Report any suicidal comments to counselor/psychologist immediately
  • Consider home instruction for times when the student’s mood disorder makes it impossible for him to attend school for an extended period

Cancer

EXAMPLE: A student with a long-term medical problem may require special accommodations. Such a condition as cancer may substantially limit the major life activities of learning and caring for oneself. For example, a student with cancer may need a class schedule that allows for rest and recuperation following chemotherapy.

Possible Accommodations and Services
  • Adjust attendance policies
  • Limit numbers of classes taken; accommodate scheduling needs (breaks, etc.)
  • Send teacher/tutor to hospital, as appropriate
  • Take whatever steps are necessary to accommodate student’s involvement in extra-curricular activities if they are otherwise qualified
  • Adjust activity level and expectations in classes based on physical limitations; don’t require activities that are too physically taxing
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Provide appropriate assistive technology
  • Provide dietary accommodations
  • Provide a private area in which to rest
  • Shorten school day
  • Arrange for home tutoring following treatment
  • Send additional set of texts and assignments to hospital schools
  • Tape lessons. Accept the fact that the lessons and content-area tests may not be appropriate; the student is learning many life lessons through this experience.
  • Adjust schedule to include rest breaks
  • Provide counseling; establish peer group support
  • Adapt physical education
  • Provide access to school health services
  • Provide awareness training to appropriate staff and students
  • Develop health care emergency plan to deal with getting sick at school
  • Offer counseling for death and dying to peers/teachers/staff
  • Furnish a peer tutor
  • Provide student with a student buddy for participation in sports
  • Initiate a free pass system from the classroom
  • Provide lessons using mastery learning techniques
  • Provide individual school counseling
  • Begin friendship groups for the student
  • Provide teachers with counseling, emphasizing positive attitudes
  • Have a health plan for care of mediport/any other intravenous lines and medical needs
  • Plan ongoing communication about school events
  • Notify parents of communicable diseases in school
  • Designate a person in school to function as liaison with parents as a means of updating changing health status

Cerebral Palsy

EXAMPLE: The student has serious difficulties with fine and gross motor skills. A wheelchair is used for mobility. For purposes of this example, the condition substantially limits the major life activity of walking. Cognitive skills are intact.

Possible Accommodations and Services
  • Provide assistive technology devices
  • Arrange for use of ramps and elevators
  • Allow for extra time between classes
  • Assist with carrying books, lunch trays, etc.
  • Adapt physical education curriculum
  • Provide for physical therapy as appropriate. Such therapy needs to relate directly to “life skills.”
  • Train for proper dispensing of medications; monitor and/or distributed medications; monitor for side effects
  • Adapt eating utensils
  • Initiate a health care plan that also addresses emergency situations
  • Train paraprofessionals in the case of this student (i.e. feeding, diapering, transporting to and from the wheelchair)
  • Adapt assignments
  • Educate peers/staff with parent/student permission
  • Ensure that programs conducted in the basement or on second or third floor levels are accessible
  • Ensure that bathroom facilities, sinks and water fountains are readily accessible.

Chronic Infectious Diseases (i.e. Acquired Immune Deficiency Syndrome (AIDS)

EXAMPLE: The student frequently misses school and does not have the strength to attend a full day. For purposes of this example, the student has a record of a disability, which substantially limits the major life activities of learning and working.

Possible Accommodations and Services
  • Provide training for staff and students about the disease, how it is transmitted and how it is treated. (Consult appropriate District policies)
  • Apply universal precautions
  • Administer medications following medication administration protocols, train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Adjust attendance policies
  • Adjust schedule or shorten day
  • Provide rest periods
  • Adapt physical education curriculum
  • Establish routine communication with health professionals, area nurse, and home
  • Develop health-care and emergency plan
  • Consult with doctor, parents, teachers, area nurse and administrators
  • Train appropriate teachers on medical/emergency procedures
  • Provide two-way audio/video link between home and classroom via computer, etc.
  • Arrange for an adult tutor at school or home
  • Adapt assignments and tests
  • Provide an extra set of textbooks for home
  • Provide staff training on confidentiality
  • Provide education and support for peers regarding issues of death and dying
  • Provide transportation to and from school if needed as a related service
  • Tape books or provide a personal reader
  • Arrange to communicate with a home computer with e-mail
  • Notify parents of communicable disease in the classroom
  • Arrange for participation in a support group
  • Provide for post-secondary employment transitions for secondary students
  • Foster supportive community attitudes regarding the District’s need to provide education to HIV positive/AIDS students
  • Develop and promote a nondiscriminatory classroom climate and supportive student attitudes
  • Promote the most supportive, least restrictive educational program
  • Initiate a "Kids on the Block" AIDS program
  • Videotape classroom teaching
  • Provide a peer support group to encourage communication
  • Involve school health consultant in school-related health issues

Cystic Fibrosis

EXAMPLE: This student is a new enrollee at your school and has an extensive medical history. He has significant difficulty breathing and will often be absent due to respiratory infection. While medical needs can be easily documented on a health plan, his educational needs also need to be accommodated. For purposes of this example, learning is the major life activity that is substantially impaired.

Possible Accommodations and Services
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Create a health care plan for management of acute and chronic phases
  • Promote good communication between parents, hospital, home and school on school assignments
  • Shorten the school day
  • Adapt physical education activities
  • Apply universal precautions, correct disposal of fluids
  • Recognize need for privacy for “good coughing”
  • Educate staff and peers

Deaf/Hearing Impairment

EXAMPLE: A student was diagnosed with a substantial hearing impairment at a very early age. He has both a hearing loss and a mild speech impediment. He compensates through both lip reading and sign language. Academic abilities test in the average range.

Possible Accommodations and Services
  • Allow for written direction/instructions in addition to oral presentation
  • Ensure delivery of instruction facing the student to allow lip reading
  • Provide visual information as primary mode of instruction
  • Allow for provision of interpreter services
  • Install acoustical tile, carpeting
  • Seat in a location with minimal background noise
  • Provide paper and pencil/pen to write/draw requests when needed
  • Facilitate acquisition of TDDs and related assistive technology
  • Allow for extra time between classes

Diabetes

EXAMPLE: A sixth grader with juvenile diabetes requires accommodation to maintain optimal blood sugar. His mom provides the crackers and juice to be used at “break” time and before physical education class. She asks that teachers remind him to eat at a certain time of the morning if he does not pay attention to the beeper on his watch. The youngster is very self-sufficient; while he is able to monitor his own blood sugar now, he prefers to do this privately. Therefore, mom asks that the equipment and a notebook/log be stored in a nearby file cabinet and the youngster be allowed to go into the hall with the equipment to check his blood sugar twice a day. She also asks that his teacher allow him to use the bathroom as needed.

Possible Accommodations and Services
  • Health care plan for management of condition in the school setting and in emergencies
  • Educate staff to signs/symptoms of insulin reaction/hypoglycemia; hunger, shakiness, sweatiness, change in face color, disorientation, drowsiness. Do not leave the child alone if he/she is feeling poorly; walk to the office or clinic with the student.
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects; communicate systematically and frequently with parents
  • Adapt physical education activities
  • Store equipment and documentation in a readily accessible location for student, parent and area nurse or clinic aid
  • Accommodate food access/meal schedules rigorously
  • Allow access to bathroom facilities

Drugs and Alcohol

EXAMPLE: The student has used drugs and alcohol for many years. This problem has affected the major life activities of learning and caring for oneself. The student is presently not using drugs or alcohol and is in a rehabilitation program. If the student is not using drugs or alcohol, he or she could qualify for accommodations or services under Section 504.

Possible Accommodations and Services
  • Provide copies of texts and assignments to treatment facility
  • Arrange for periodic home-school contacts
  • Establish daily/weekly assignments monitoring system
  • Communicate with treatment facility; pursue transition services available through the treatment facility
  • Provide/arrange for counseling
  • Establish peer support group
  • Dismiss from school for treatment without punitive measures
  • Ensure strong link with school counselor
  • Arrange for access to treatment at private or public facilities.
  • Integrate a student assistance program into the classroom
  • Inservice faculty/staff with parent/student permission
  • Provide ongoing support around chemical dependency in conjunction with other agencies
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects

Emotionally Disturbed

EXAMPLE: An emotionally disturbed student may need an adjusted class schedule to allow time for regular counseling or therapy. For purposes of this example, the condition substantially limits the individual’s major life activity of learning.

Possible Accommodations and Services
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Maintain weekly/daily journals for self-recording of behavior
  • Establish home-school communication system
  • Schedule periodic meetings with home and treatment specialists
  • Provide carry-over of treatment plans into school environment
  • Assist with inter-agency referrals
  • Utilize behavior management programs
  • Develop contracts for student behavior
  • Post rules for classroom behaviors; teach expectations
  • Provide counseling, social skills instruction
  • Reinforce replacement behaviors
  • Educate other students/staff/school personnel
  • Foster carryover of treatment plans to home environment
  • Reinforce positive behavior
  • Schedule shorter study/work periods according to attention span capabilities
  • Be consistent in setting expectations and following up on reinforcements/consequences

Encopresis/Enuresis

EXAMPLE: A student who will urinate or defecate in clothes. Not to be confused with physical incontinence, but only to a needed behavior change (i.e. toilet training, bowel/bladder retraining).

Possible Accommodations and Services
  • Maintain low key responses
  • Have a change of clothes available at school in the clinic or alternative location
  • Plan a consistent response to events; send student to clinic or alternative location for clean-up and change of clothes; while wearing latex/rubber gloves, place soiled clothes in a plastic bag; call parent and make arrangements for soiled items to be returned home
  • Observe for consistent trigger events
  • Support bowel/bladder retraining program that is recommended by the physician

Epilepsy

EXAMPLE: The student is on medication for seizure activity but experiences several petit mal seizures each month. This condition substantially limits the major life activity of learning.

Possible Accommodations and Services
  • Call parent and document the characteristics of each seizure
  • Assess breathing after seizure
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Train staff and students and prepare an emergency plan
  • Anticipate recovery process should a seizure occur. Move seating/clear space during seizure. Do not insert objects into the student’s mouth during seizure; administer no fluids if student is unconscious. Turn the unconscious student on his or her side to avoid aspiration of vomit. Provide rest time and return to academic considerations following seizure. Arrange a buddy system, especially for field trips
  • Avoid portable chalk boards or furniture that would topple over easily
  • Provide an alternative recess, adapt activities such as climbing and/or swimming
  • Plan for academic make-up work
  • Alter door openings to allow access from the outside (i.e. bathroom stall doors that swing both ways)
  • Observe for consistent triggers (e.g. smells, bright light, perfume, hair spray)

Hearing Impairment

EXAMPLE: A parent is hearing impaired and requests, access to school sponsored activities. The District makes accommodations by providing interpreter services for the parent to participate effectively in school-sponsored events or meetings about the student.

Possible Accommodations and Services
  • Provide an interpreter for those school events where accommodations may be necessary/are requested
  • Make alternative arrangements for home-school contacts/communication
  • Assist with locating peer or support groups
  • Use written notes for communication
  • Arrange with phone company for assistive devices on public phones
  • Provide information on assistive technology; acquire assistive equipment for school use
  • Provide in-house TDD or relay services to receive/communicate efficiently

Learning Disabilities

Individual profiles of learning strengths and weaknesses will vary. THE EXAMPLE: The student has a learning disability that impacts her ability to read. She has more difficulty with word decoding and spelling than reading comprehension. Thus, completing reading tasks is difficult and slow. She is currently a student receiving special education services.

Possible Accommodations and Services
  • Provide lower-readability materials covering course context
  • Provide extended time on tests
  • Arrange for student/volunteer readers
  • Provide information on accessing materials through recordings for the Blind and Dyslexic (i.e. books on tape)
  • Allow access to spell checkers and/or word processing
  • Provide information on accommodations for college-entrance/qualifying exams (i.e. PSAT)
  • Written directions in addition to oral
  • Clearly sequenced instruction
  • Visual graphs/charts/diagrams to support instruction
  • Provision of computer access
  • Seating toward the instructor
  • Support/suggestions relative to post-secondary/career options
  • Support in the use of organizational/time-management strategies
  • Support in the use of strategies to assist memory and problem-solving
  • Use of multi-sensory instructional methods (i.e. visual graphs and charts to accompany oral presentation)

Leukemia

EXAMPLE: The student has recently been diagnosed with leukemia and requires frequent hospitalization. The condition substantially limits the major life activity of learning and caring for oneself.

Possible Accommodations and Services
  • Involve area nurse in assessing current limitations and development of health plan
  • Provide homebound instruction if needed
  • Provide the student with an adjusted school day
  • Make needed accommodations during physical education/recess
  • Provide rest periods
  • Have medical services and medication available at school. Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Support the proper diet as per physical recommendation
  • With parent/student permission, have area nurse to educate teachers/staff/peers
  • Notify parents of existing communicable diseases at school (i.e. chicken pox, flu, strep throat, etc.)
  • Consult with medical staff about individual needs and/or concomitant factors

Orthopedically Impaired

EXAMPLE: The student has limited mobility and uses a wheelchair. This condition substantially limits the major life activity of walking.

Possible Accommodations and Services
  • Develop a health care and emergency plan
  • Implement an adaptive physical education program
  • Provide physical therapy at school
  • Correct problems with physical accessibility of facilities/pathways between buildings
  • Provide extra time to get to class
  • Supply a set of textbooks for home
  • Provide a copy of class notes from a peer
  • Practice emergency exit from school building
  • Ensure that access to all programs is handicapped accessible
  • Ensure that bathroom facilities, water fountains, sinks, etc. are readily accessible

Student with Special Health Care Needs

EXAMPLE: The student has a special health care problem and requires clean intermittent catheterization twice each day. This procedure empties the bladder and helps prevent urinary tract infections and possible wetting. The school is required to provide trained personnel to perform the procedure or to provide the student a private location to perform the procedure. The condition is substantially limiting in the major life activity of caring for oneself.

Possible Accommodations and Services
  • Apply universal precautions
  • Provide trained personnel to perform special medical procedures. Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Provide student with private location and time to perform procedures
  • Involve area nurse, parents, teachers, and staff in periodic review
  • Allow preferential seating as indicated by need
  • Adapt recess, physical education, and transportation
  • Adjust classroom environment
  • Develop health care and emergency plan
  • If necessary, adapt attendance policy
  • Establish health alert system whereby every staff member involved with this student is aware of the health problem and of proper procedures
  • Provide a beeper/paging system for trained personnel
  • Make available homebound services/instruction if needed
  • Provide school counseling
  • Arrange for in-service to other students and staff with parent/student permission

Temporarily Disabled

EXAMPLE: A student was in an automobile accident and will be homebound and/or hospitalized for an extensive period. The student is considered temporarily disabled under Section 504 and should receive accommodations if this disability substantially limits a major life activity for the period of time it does so.

Possible Accommodations and Services
  • Provide duplicate sets of texts
  • Provide assignments to hospital school
  • Tape lessons
  • Provide homebound instruction
  • Schedule periodic home-school meetings
  • Arrange for student to leave class early to get to next class
  • Provide access to elevators
  • Excuse from or adapt physical education program
  • Arrange for a friend to assist student in getting from class to class, provide help with getting lunch tray
  • Establish a student support network
  • Provide a cordless telephone/beeper/pager
  • Provide an interactive system -- computer, e-mail, TV
  • Arrange for peer notes
  • Change seating arrangements to accommodate needs
  • Adapt assignments depending on disability
  • Allow more time for test completion
  • Allow shortened days; adjust attendance policy
  • Inservice staff and class and prepare an emergency care plan
  • Switch programs /classes to an accessible classroom on the main floor
  • Test verbally
  • Provide peer assistance for social involvement (i.e. to keep child informed of social activities)
  • Furnish life-skill assistance
  • Provide area nurse services

Tourette’s Syndrome

EXAMPLE: The student exhibits inappropriate gestures and sounds in the classroom and hallways. The condition is substantially limiting in the major life activities of learning and caring for oneself.

Possible Accommodations and Services
  • Provide student with a means of catching up on missed lessons
  • Pair with a fellow student for study if indicated
  • Educate other students about associated outbursts/gestures/tics
  • Arrange for frequent parental interaction if indicated
  • Monitor administration/side effects of medication
  • Implement a behavior management program; cue student about inappropriate behaviors
  • Provide supervision for transition activities, during periods of “acting out”
  • Provide alternative work-space or appropriate space for the child to act out if indicated
  • Teach compensatory strategies
  • Adapt assignments if indicated
  • Provide peer/teacher in-service with parent/student permission

Traumatic Brain Injury

EXAMPLE: The student sustained a brain injury in an automobile accident. Many academic and motor skills have been lost from the injury. The student does not qualify for special education under IDEA. The condition is substantially limiting to the major life activities of learning and performing manual tasks.

Possible Accommodations and Services
  • Provide extended school year/time
  • Furnish memory/organizational aids
  • Provide alternative testing
  • Initiate tutoring programs
  • Arrange an emergency plan
  • Monitor for seizure activity
  • Inservice staff and peers with student/parent permission
  • Monitor fatigue/mental exhaustion
  • Provide frequent short breaks during periods of intense concentration
  • Shorten the instructional day if indicated
  • Provide strategies for organizing/sequencing tasks

Tuberculosis

EXAMPLE: The student is suspected of having active tuberculosis and must stay home until diagnostic tests are complete. The disease is not infectious, but the student is still weak. The condition is substantially limiting to the major life activity of learning.

Possible Accommodations and Services
  • Provide home tutor, as necessary
  • Inservice staff on the need for confidentiality to limit the stigmatization of him or her
  • Have the medical evaluator provide feedback to staff
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Inservice staff and students about the disease, how it is transmitted and how it is treated
  • Work with community agency or health department to provide medication and health education materials
  • Work with community agency or health department to test students and staff for exposure and/or infection and to determine when the student can return to school
  • Provide therapy and dispense medications if student is diagnosed with active TB; observed for side effects; arrange for parents to give medication on holidays and weekends

Visual Impairment

EXAMPLE: A student has a progressive medical disorder, which results in increasing loss of visual acuity. He now requires both enhanced lighting and enlarged print materials in order to read.

Possible Accommodations and Services
  • Preferential seating
  • Adaptations to the physical environment (i.e. consistent room arrangement, removal of obstacles to path of entry)
  • Copies of text/reading materials for adaptation
  • Modified writing tools (i.e. dark felt tip pens)
  • Perkins Brailler
  • Slate and stylus
  • Raised lines on writing paper
  • Dark lined writing paper
  • Lighting aids
  • Low vision devices including magnifiers, monocular glass, closed-circuit TV
  • Desktop slantboard
  • Enlarged print materials; textbooks, workbooks, worksheets
  • Braille textbooks/reading materials
  • Books on tape
  • Audiotape recorder, tapes and organizational location (headphones if needed)
  • Oral instead of written tests
  • Standardized tests (i.e. CAT, SAT) in large print or Braille
  • Tactile maps
  • Computer with enlarged print screen/adaptations
  • Speech synthesizer for input and output
  • Screen reading device
  • Optical Character Recognition System Scanner
  • Mobility devices (i.e. white cane)

Weight: Diagnosis of Obesity, Anorexia, and Bulimia

EXAMPLE: A student has an extreme eating disorder that may require special accommodations. Obesity may be considered a disability under Section 504 where it substantially impairs a major life activity or is regarded by others as doing so.

Possible Accommodations and Services
  • Provide special seating modifications
  • Make dietary modifications per physician recommendation
  • Adapt physical education program per physician recommendation
  • Allow extra time to get to classes
  • Educate peers
  • Adapt restrooms
  • Provide opportunities for socialization and peer counseling/interaction
  • Ensure privacy for self-care
  • Provide counseling involving the area nurse
  • Provide for elevator privileges per physician’s recommendation
  • Arrange for counselor/area nurse to supervise peer counseling to deal with esteem issues, peer attitudes, teasing, etc.
  • Address busing concerns to ensure room on buses for seating
  • Arrange to provide opportunities for the individual to participate in intramural and extra-curricular events
  • Make any class location changes that may be needed

Print Chapter 7-Student Discipline


Section 504 Handbook

Chapter 7-Student Discipline

Disciplinary Techniques
In-School Suspension
Suspension from Extracurricular Activities
Drug and Alcohol Users
Change of Placement under Section 504
Proposed Long-Term Suspension
Manifestation Determination & Reevaluation
Breaking Down the Manifestation Determination Components
The Disability
The Relationship of the Conduct to the Disability
Failure to Implement the IEP or Section 504 Plan
Behavior is not a Manifestation
Behavior is a Manifestation
Special Circumstances

Discipline in the school setting works best when all students are subject to the same rules, and those rules are enforced evenhandedly. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability, and a number of opinions from the Office of Civil Rights of the Department of Education (OCR) suggest that in the disciplinary arena, students with disabilities should be treated like their nondisabled peers when they are disciplined in the school setting. Section 504 prohibits treating students more harshly than nondisabled students based solely on a student’s disability. Students covered by Section 504 are expected to conform to the same behavior standards as their non-disabled peers, unless modifications are explicitly outlined in their 504 Plans.

Students covered by Section 504 also have extra protections when facing exclusion from school for an extended period of time. Both Section 504 and the Individuals with Disabilities Education Act place restrictions on a school district’s ability to suspend a student with a disability when the suspension constitutes a change of placement, i.e., is for a period of more than 10 consecutive days.

The key to compliance with Section 504 is equal treatment of students. If protected students are subject to the same discipline as other students for similar infractions, the discipline will usually be upheld. If the use of different disciplinary techniques is contemplated, it should be specified in the student’s IEP or Section 504 accommodation plan.

In all cases, school districts should take prompt steps to address student misconduct when it first occurs. Discipline should not be used as a substitute for a behavior management. Further, repeated acts of misbehavior may signal the need for evaluation and identification under IDEA. When misbehavior first occurs, the district should consider:

  • Whether the child needs to be evaluated for special education or Section 504 eligibility;
  • Whether the student’s current program is appropriate;
  • Whether the student could benefit from the provision of more specialized instructional and/or related services, such as counseling and psychological services or social-work services in schools;
  • Whether the training of the student’s teacher(s) in effective use of conflict management and/or behavior management strategies also could be effective in helping to keep the behaviors under control;
  • Whether training for all personnel who work with the student and/or other students would be effective in ensuring the successful implementation of the other interventions.

Disciplinary Techniques

A student’s Section 504 accommodation plan or IEP may specify disciplinary techniques, and probably should specify such techniques if the student’s behaviors have been problematic in the past. If the accommodation plan or IEP does specify disciplinary techniques which differ from normal disciplinary techniques for all students, it is essential that all staff who deal with the student (including all regular education teachers, bus drivers, paraprofessionals, administrators, etc.) be informed of and trained to implement the alternate procedures. Failure to notify all staff who need the information may result in a denial of a free appropriate public education under IDEA or a violation of the student’s rights under Section 504.

The Office for Civil Rights of the Department of Education has rendered several opinions on whether specific disciplinary techniques used with students with disabilities violate the student’s rights under section 504. Generally, OCR has approved a number of techniques, including time-out rooms and alternative in-school suspension programs. Again, these options should be used only if they are used with all students. Otherwise, the accommodation plan should clearly spell out how the technique may be used.

In-School Suspension

OCR has indicated that if in-school suspension is supervised by a qualified special education teacher and the student continues to work on IEP goals and objectives, or continues to receive Section 504 accommodations or services, the days of in-school suspension do not count in the total days of suspension for determining if a change of placement has occurred for Section 504 purposes. However, if those conditions are not met, the days do count toward the 10 days which are allowed.

Suspension from Extracurricular Activities

Suspension from the right to participate in extra-curricular activities may also be appropriate. In Francis Howell (PA) School Dist., 18 IDELR 78 (1991), OCR concluded it was not a violation of Section 504 to suspend a handicapped student, who was placed on in-school sus­pension for misbehavior, from participating in extra-curricular activ­ities. Under the district’s policies, all students were subject to suspen­sion from extra-curricular participation for any week in which they were sent to in-school suspension. The fact that the student’s IEP specified that the student should participate in at least one extra-curricular activity did not alter the OCR decision.

Drug and Alcohol Users

Section 504 provides no protection to current users of illegal drugs. However, an individual with a history of use who has been successfully rehabilitated or is participating in a rehabilitation program is covered by Section 504. Further, a student who is identified under IDEA does not lose IDEA protections through drug use. If a student is engaging in illegal drug use at the time of the expulsion, entrance into a rehabilitation program does not render the expulsion void. In Letter to Zirkel, 22 IDELR 667 (1995), OCR concluded a school district is not required to reinstate a student who is expelled from school for selling marijuana, simply because the student successfully completes a rehabilitation program during the term of the expulsion, unless the district would allow reinstatement of a nondisabled student in a similar situation.

Change of Placement under Section 504

A change of placement is deemed to occur if the student is removed from school for more than 10 consecutive school days or for more than 10 school days cumulatively in a school year through a series of removals which constitute a pattern of removal. The IDEA definition of school day includes partial days when children are in attendance at school for instructional purposes. The factors a school looks to in determining if a change of placement has occurred under either IDEA or Section 504 are:

  • Whether each incident of misconduct involves substantially the same behavior;
  • The length of each removal;
  • The total amount of time the child has been removed; and
  • The proximity of the removals to one another.

Schools should fastidiously keep track of days of suspension for children with disabilities. Whenever the days of suspension in a school year total 10, the school must consider if a pattern of removal is established. Applying the factors is not a simple matter. Outcomes are mixed and highly erratic in cases where schools argue a change of placement has not occurred after more than ten cumulative days of suspension. The spirit of the regulations strongly favors making adjustments to the program and using positive behavior interventions and supports over suspension.

If there is any doubt, the school should err on the side of finding a pattern of removal. If a pattern exists, the next day of suspension results in a change of placement, triggering additional rights under Section 504 or IDEA. While the school makes the initial determination on whether a change of placement has occurred, this decision is subject to due process and judicial review.

Proposed Long-Term Suspension

For a student who is also protected by IDEA, when disciplinary action which constitutes a change of placement is contemplated, parents must be notified of the decision and of all IDEA procedural safeguards not later than the date on which the decision to take the action is made. As soon as possible, but not later than 10 school days after the date on which the decision is made, the team agreed to by the parent and school, must review the relationship between the child’s disability and the behavior subject to the disciplinary action to determine whether the behavior in question was a manifestation of the student’s disability. A manifestation determination is not required if the suspension does not constitute a change of placement.

Manifestation Determination & Reevaluation

Although the term “manifestation determination” cannot be found in Section 504 or its regulations, OCR requires a manifestation determination prior to any disciplinary action that would constitute a change of placement. As with IDEA, a manifestation determination is not required if the suspension does not constitute a change of placement.

Section 504 also requires that a student be reevaluated prior to any change of placement. The reevaluation and manifestation determination can occur in the same meeting, following the procedures required for evaluation and placement under Section 504. This means:

  • Parents must be given written notice of the meeting;
  • Information must be considered from a variety of sources; and
  • A group of persons knowledgeable about the child’s disability and needs, the evaluation data, and placement options must be present at the meeting; and
  • Parents should have notice of procedural safeguards.

A group of persons who meet the criteria should be involved in making the decision whether the behavior was a manifestation of the student’s disability. Evaluation data should be current enough to help in understanding the student’s misbehavior leading to the suspension. See Springfield (MA) Pub. Schs., 54 IDELR 102 (OCR 2009). In determining if the behavior was a manifestation of the disability, the team should consider the information outlined below along with other information that is relevant to making the decision. Failure to consider new information, including medical or psychological reports supplied by the parent, may result in a Section 504 violation. Pitt County (NC) Schs., 114 LRP 41316 (OCR 2014).

A manifestation determination involves two steps. First, the school and parent and relevant members of the 504 team should reevaluate the student, considering any relevant information, including:

  • The current 504 Plan;
  • Teacher observations;
  • Parent information; and
  • Any other relevant information the team believes necessary.

Next the team must determine:

  • Was the conduct in question caused by or did it have a direct or substantial relationship to the child’s disability? and
  • Was the conduct in question the direct result of the school’s failure to implement 504 accommodations or modifications?

If the answer to either of these questions is “yes,” the behavior is a manifestation of the disability and the school cannot proceed with long-term suspension of the student.

If the answer to both questions is “no,” the behavior is not a manifestation of the disability, and the school may proceed with suspension.

This is the standard currently applied under IDEA for conducting a manifestation determination.  In J.M. v. Liberty Union High School Dist., 2017 WL 2118344 (N.D. Cal. 2017), the court approved application of this standard in a Section 504 action. The student had argued the correct legal standard under Section 504 was not “whether the student’s behavior was caused by or had a direct and substantial relationship to his disability,” but rather “whether the behavior bears a relationship to the disability.” In rejecting this argument, the court noted compliance with IDEA procedures is one way to achieve compliance with Section 504 requirements. The court in Doe v. Osseo Area Sch. Dist. No. 279, 2017 WL4997918 (D.Minn. 2017), reached a similar conclusion, finding that school discipline cases support the “caused by” standard, and OCR has “long utilized a causation standard that aligns with this standard.”

The court in Osseo Area Sch. Dist. No. 279 also addressed the issue of reevaluation. The court relied on Doe v. Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200, 115 F.3d 1273 (7th Cir. 1997), which held that since the school properly determined the student’s misconduct was unrelated to his learning disability, the school did not violate Section 504 by failing to perform a full reevaluation, in concluding that Section 504 does not require a full reevaluation for a student subject to a disciplinary change of placement.

Breaking Down the Manifestation Determination Components

A manifestation review requires determining if the conduct in question was caused by or had a direct and substantial relationship to the disability. Questions in the process arise in several areas: What is the disability? What is the conduct in question? What is a direct and substantial relationship?

The Conduct in Question

In South Lyon Community Schs., 50 IDELR 237 (SEA MI 2008), a student with an emotional disturbance and ADHD passed a note to a classmate. The note said, “I have pills,” and nothing more. Without sharing the actual behavior, the district characterized the student’s misconduct as indicating that she initiated or intended to initiate the sale of drugs, even though a no drugs were found in a search of the student and her belongings. The team determined the intent to sell drugs was unrelated to her disability.

Noting the team did not look at the student’s actual conduct, the hearing officer stated, "There is a world of difference between the behavior involved in actually selling drugs at school and the behavior involved in engaging in even a suspicious brief and informal conversation about drugs with a friend at school.” Given her history of impulsive behavior and poor judgment, the hearing officer concluded the student’s false claim of possessing drugs was a manifestation of her disability.

The Disability

In order to qualify for IDEA services, a student must have a disability that falls within one of the disability categories outlined in the law and as a result need special education. Many disabilities do not qualify a student for IDEA services. When making a manifestation determination, questions arise about how to treat additional medical, behavioral or psychological conditions or impairments that do not qualify a student for special education.

The hearing officer in Baltimore County Pub. Schs., 46 IDELR 179 (SEA MD 2006), suggested the inquiry is limited to whether the behavior was caused by the disability that results in eligibility; thus the team’s focus on emotional disturbance, rather than other diagnoses the student had received, was appropriate. Some opinions indicate that other diagnoses need not be considered unless they form the basis for eligibility.

Others suggest all relevant information provided by the parent, including additional diagnoses must be considered. The manifestation determination review should consider all suspected or recognized disabilities, not just the primary disability. Murrieta Valley Unified Sch. Dist., 53 IDELR 108 (SEA CA 2009). The school may have a duty to reevaluate an already eligible student if there is reason to suspect an additional qualifying disability. School Board of City of Norfolk v. Brown, 769 F. Supp. 2d (E.D. Va. 2010); Quincy (WA) Sch. Dist. No. 144-101, 52 IDELR 170 (OCR 2009); St. Charles (MO) R-VI Sch. Dist., 55 IDELR 175 (OCR 2010).  In re Barnstable Pub. Schs., 111 LRP 58728 (SEA MA 2011), the hearing officer determined the district violated Section 504 by failing to consider an independent psychological report, diagnosing the student with bipolar disorder and situational stress when conducting the manifestation determination review.

The Relationship of the Conduct to the Disability

The manifestation determination standard is a causation standard. The key question is whether the conduct was caused by or had a direct or substantial relationship to the student’s disability. Philadelphia City Sch. Dist., 47 IDELR 56 (SEA PA 2007). Indirect relationships—disability causes low self-esteem which caused the misconduct—are no longer considered. See also Prince William Cty. (VA) Pub. Schs., 68 IDELR 286 (OCR 2016) (“When a significant change in placement is for disciplinary reasons, the first step in the reevaluation is to determine whether the student's disability caused the misconduct.”); E. Detroit Pub. Schs., 116 LRP 29008 (OCR 2015) (same).

Failure to Implement the IEP or Section 504 Plan

Failure to implement the IEP requires a showing that it was caused by an act or omission of a school employee. In Miami-Dade County Sch. Bd., 55 IDELR 59 (SEA FL 2010), the hearing officer found the failure to hold weekly counseling sessions was not a failure to implement the IEP where the sessions were held approximately once every two weeks and there was nothing to suggest additional sessions would have curbed the misconduct.

Behavior is not a Manifestation

If the behavior is a manifestation of the disability, as under IDEA, the district cannot impose discipline on the child for the behavior. However, if the behavior is not a manifestation of the disability, the student may be suspended or expelled and, under Section 504, unlike under IDEA, the education services need not continue, if the district does not have a policy or practice of providing services to nondisabled students who are suspended for similar offenses. If services are continued for the general student population, they must also continue for Section 504 students. Remember, the student must be provided with a hearing under the student suspension and expulsion statutes prior to imposition of the suspension or expulsion.

Parents do not have to agree with the manifestation determination. Ideally the team should come to consensus, but if agreement cannot be reached, ultimately school administration makes the final call. Parents can invite participants to the meeting or challenge the decision through a special education due process hearing, but do not have the right to veto the decision. Fitzgerald v. Fairfax County Sch. Dist., 50 IDELR 165 (E.D. Va. 2007). Similarly, parents could seek due process under the Section 504 procedural safeguards.

In C.C. v. Hurst-Euless-Bedford Indep. Sch. Dist., 2015 WL 2443835, 65 IDELR 195 (N.D. Tex. 2015), aff'd, 641 Fed. Appx. 423, 67 IDELR 254 (5th Cir. 2016), a middle school student with ADHD and a learning disability was placed in an interim alternative educational placement for 60 days after the team determined his act of photographing a classmate on a toilet was not a manifestation of his disability.  When juvenile justice authorities declined to prosecute the student for the act, parents challenged the action.  The court concluded the school was not bound by that decision and, since the behavior was unrelated to the disability, could impose the same sanction it would apply to nondisabled students for the same offense.

The school should document the manifestation determination review process and clearly explain its conclusions. Insufficient documentation of the date the meeting was held, parent participation, or the basis for conclusions may result in a determination the process was insufficient. In re Student with a Disability, 57 IDELR 59 (SEA NY 2011).

Behavior is a Manifestation

Where the manifestation review indicates the student’s misconduct was the direct result of the school’s failure to implement the IEP or Section 504 plan, the Section 504 or IEP team must conclude the behavior was a manifestation of the disability. When a manifestation determination results in a finding the current IEP or Section 504 plan was not being implemented, the school should take immediate steps to remedy the deficiencies in implementation.

If the Section 504 or IEP team determines that the child’s behavior was a manifestation of the disability, the child cannot be subject to discipline for the behavior. Imposing discipline in this circumstance would be the equivalent of punishing the student for having a disability.

However, the Section 504 or IEP team may recommend a change of placement if it concludes the current placement is inappropriate in light of the behaviors. If parents disagree with this recommendation, again the parents may request due process or mediation under IDEA. Parents may request due process under Section 504, but not mediation, unless school policies allow for mediation.

Under IDEA, if due process is requested, the child must “stay put” in his or her then current placement, pending the outcome of the due process proceedings, unless the school and the parents agree to another setting. Section 504 does not contain an explicit stay-put provision. However, in Letter to Zirkel, 22 IDELR 667 (OCR 1995), OCR suggested “a fair due process system would encompass a district waiting for the results of due process before making the change.”

Special Circumstances

Even if the behavior is a manifestation of the disability, the school can move the child to an interim alternative educational setting if the behavior involves special circumstances—i.e., weapons, drugs or serious bodily injury to another at school, on school property or at a school activity. Similarly, the hearing officer may order an interim alternative educational setting if the school district shows the behavior is substantially likely to result in injury to the child or others.

Under either law, if the student's misconduct is related to or is a manifestation of the student's disability, suspension or expulsion is not an option. In these cases, the school must ensure it provides appropriate behavioral interventions and supports and works with parents to reach agreement on appropriate placement for the child. If the child's misbehavior is not a manifestation of the child's disability, Section 504 allows services to cease if they cease for all children for the same misconduct. IDEA, however, mandates that services continue for students suspended or expelled from school.

IDEA contains provisions that allow a child who has not been identified as eligible for special education protections in the disciplinary context if the district has knowledge that the student is a child with a disability. Section 504 does not contain a similar provision.

Print Chapter 8-Extracurricular or Nonacademic Activities


Section 504 Handbook

Chapter 8-Extracurricular or Nonacademic Activities

Extracurricular Athletics
Barriers to Participation
Opportunity for Participation
Tryouts
Attendance Requirements
Transportation
After School Programs
Field Trips

Section 504 applies to all school-sponsored activities, including extracurricular activities and athletics. In the athletics realm, this can include physical education courses, recreational activities, and athletics, including interscholastic, club or intramural athletics.

Whatever the extracurricular or nonacademic activity, students with disabilities must be provided an equal opportunity for participation. All students should have access to all programs, services and activities offered by the school. This includes any nonacademic services such as counseling services, transportation, health services, and any special interest clubs or groups the school sponsors. Counseling services can include personal, academic, vocational or guidance counseling, as well as placement services. In this area, it is particularly important that students with disabilities not be counseled toward more restrictive college and career objectives than their nondisabled peers with similar interests and abilities.

Students with disabilities should not be excluded from employment opportunities for students within the school, or from work programs outside the school. Additionally, students protected by Section 504 should be considered, along with other students, for referrals to outside agencies for assistance.

Students with 504 plans are expected to meet the same conduct standards and activity prerequisites as their non-disabled peers.

Extracurricular Athletics

In 2010, the General Accounting Office issued a report, in response to a Congressional request, on the participation of students with disabilities in athletics and physical education. Entitled “Students with Disabilities: More Information and Guidance Could Improve Opportunities in Physical Education and Athletics,” GAO-10-519 (2010), the report found opportunities for physical activity are limited for children and youth with disabilities. The report underscored that participation in extracurricular activities provides important health and social benefits, including:

  • Socialization;
  • Improved teamwork;
  • Leadership skills; and
  • Fitness

The GAO noted that access to physical activity is better at the elementary level than middle or high school, and found disparities based on type of disability in extracurricular athletics. The GAO recommended the U.S. Department of Education provide schools with information and resources on ways to provide opportunities for students with disabilities in physical education and extracurricular activities. Additionally, they urged the Department to issue additional guidance on Section 504 requirements and participation in extracurricular athletics.

In response, the U.S. Department of Education has issued three documents. The first, “Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics" (U.S. Department of Education 2011). In this document, the Department of Education admitted there is limited research providing evidence of effective practices and approaches to increase physical activity, to reduce obesity and to maintain health among children with disabilities. It suggested schools increase participation opportunities by eliminating common barriers to participation, identified in the table below.

Barriers to Participation

  • ACCESSIBILITY
    • Follow Universal Design Principles in construction of play areas.
    • Use adaptive physical education practices.
    • Ensure accessible transportation is available to transport children with disabilities to accessible facilities.
  • EQUIPMENT
    • Modify equipment for safe use by children with disabilities.
    • Acquire specialized equipment when necessary.
    • Use technology to allow access to sport simulation.
  • PERSONNEL PREPARATION
    • Ensure personnel are trained or have professional development that allows them to adapt games and guide activities for students with disabilities.
  • TEACHING STYLE
    • Shift the focus from competition to education of the individual.
  • MANAGEMENT OF BEHAVIOR
    • Ensure personnel have the skills and knowledge to address interactional components of disabilities within the context of competition.
    • Allow for social, emotional and behavioral interactions to be directly instructed, monitored and remediated.
  • CURRICULUM FOCUS
    • Recognize the need for flexibility in content and context.
  • PROGRAM OPTIONS
    • Remember IDEA and Section 504 requirements, including the need to provide instruction in the least restrictive environment.
  • ASSESSMENT
    • Measure growth and development individually, not on standards which may be impossible for many students with disabilities to obtain.

In January 2013, OCR issued a Dear Colleague Letter (DCL), addressing a school district’s obligations to provide access to and participation in extracurricular athletics under Section 504. A subsequent letter of clarification was issued by OCR in December of the same year. (See Appendix O for both letters).

OCR stressed the legal obligation to comply with Section 504 supersedes the rule of any association, organization, club or league that would render a student ineligible to participate. It encouraged schools to work with athletic associations to ensure students with disabilities are not denied the opportunity to participate. OCR then cautioned schools against making decisions based on assumptions, prejudices or stereotypes about disability, including generalizations about what students with certain types of disabilities are capable of doing.

Cases on Point

Athletic Association Rules
  • H. v. Illinois High School Association, 881 F.3d 587 (7th Cir. 2018). The 7th Circuit noted the association set demanding qualifying times to ensure that only the best and fastest runners could participate in the state championships. Finding the student had the same opportunity to compete as his nondisabled teammates, the court held he was not entitled to an accommodation that would give him a competitive advantage.
  • Marshall v. New York State Pub. High Sch. Athletic Ass'n, 290 F.Supp.3d 187 (W.D.N.Y. 2017). Athletic associations have no obligation to provide students with disabilities with opportunities that are not available to their nondisabled peers. Extending the student's eligibility to allow for a fifth year of competition would confer additional rights not contemplated by federal law.
  • Steines by Steines v. Ohio High Sch. Athletic Ass’n, 68 F.Supp.3d 768 (S.D. Ohio 2014), order vacated, 2015 WL 4575217 (S.D. Ohil 2015). A state athletic association could not preclude a Kentucky teenager with a learning disability and ADHD from playing soccer for his Ohio high school. The district court held that the parents’ likelihood of success on their Title II claim precluded the association from enforcing its residency requirement in the interim. Unlike age limits or eight-semester rules, which are intended to level the playing field and protect players from physically larger opponents, the residency requirement had no stated purpose.
  • Mann ex rel. Mann v. Louisiana High Sch. Athletic Ass’n, 535 F. App’x. 405 (5th 2013). Because parents failed to show the student’s anxiety disorder met the ADA (or Section 504) definition of disability, the court refused to enjoin the athletic association from enforcing its transfer rule.  Noting that the parent might be able to establish ADA eligibility after a full hearing, the 5th Circuit held that the evidence of the student's disability was not sufficient to support a preliminary injunction.
  • Starego ex rel. Starego v. New Jersey State Interscholastic Athletic Ass’n, 970 F. Supp. 2d 303 (D.N.J. 2013). The progress a 19-year-old student with autism and an intellectual disability made during his four years on his high school's football team undercut his request for a waiver of a state athletic association's eight-semester eligibility rule. The court explained that the purpose of waivers was to equalize opportunities for students who would otherwise be ineligible to participate in high school sports due to circumstances beyond their control. “Significantly, the ADA does not provide [the student] with additional opportunities because of his disabilities, but rather, the statute puts him on an equal footing with every other student player.” Concluding the student’s experiences matched those of his nondisabled teammates, the court denied the injunction.
  • Lyon v. Illinois High Sch. Ass’n, 2013 WL 309205, 60 IDELR 135 (N.D. Ill. 2013). Agreeing a fifth-year high school senior with ADHD was entitled to a reasonable accommodation, the district court enjoined the Illinois High School Association from prohibiting his participation on his high school’s wrestling team while his ADA claim, challenging the eight-semester eligibility rule, was pending. The district court ruled that waiving the eight-semester limitation would not fundamentally change or undermine the goal of promoting fair competition, particularly in a sport where competition is limited by weight classification.
  • Monroe County (IN) Cmty. Sch. Corp., 115 LRP 32792(OCR 2015). A district's obligation to comply with Section 504 "supersedes any rule of any association, organization, club, or league that would render a student ineligible to participate" on the basis of that student's disability.

Opportunity for Participation

The meat of the letter addresses a school district’s obligation, if it provides extracurricular athletics, to offer opportunities in a manner that affords qualified students with disabilities an equal opportunity for participation. This may include making reasonable modifications to policies, practices or procedures or offering accommodations, aids and services unless doing so would constitute a fundamental alteration of the program or give the student an unfair advantage. At the same time, schools can adopt bona fide safety standards and require students to have a level of skill or ability for competitive activities, so long as the criterial established are not discriminatory.

Is Modification Legally Required?

If modification is necessary for the student to participate in the activity, it must be considered.

If a proposed modification would result in a fundamental alteration of the activity by either altering an essential aspect of the activity or giving the student with a disability an unfair advantage the modification is not required.  However, the school must continue to seek other modifications.  It is only when all modifications have been considered and rejected because they would result in a fundamental alteration of the activity that modification is not required.

The letter provides examples of modifications that might and might not be required. For instance, a school would not be required to add a fifth base to a baseball field because that would fundamentally alter the nature of the baseball program. On the other hand, a school would be required to provide assistance with blood sugar monitoring and insulin administration if a diabetic student needed these services in order to participate. A service like this, even though a cost may be associated with it, would rarely constitute a fundamental alteration of the program, and would be required under Section 504.

Finally, OCR addressed the issue of providing separate or different opportunities for students with disabilities when their interests and abilities cannot be met in existing programs. OCR suggested a school might create opportunities for these students by providing disability specific teams on a districtwide or regional basis, allow for co-ed teams or allow for unified teams comprised of both students with disabilities and nondisabled students. In the December clarification, Letter to Negron, 62 IDELR 185 (OCR 2013), OCR indicated this encouragement to schools does not mean schools must create additional activities for students with disabilities. However, if programs are created, the district must provide the same level of support for them that it provides for other competitive activities.

In the clarification letter, OCR made it clear equal opportunity means equal access to existing opportunities. It does not mean every student with a disability has a right to be on an athletic team. Nor does it mean:

  • Compromising student safety;
  • Changing the nature of selective teams;
  • Giving a student with a disability an unfair advantage over other competitors; or
  • Changing essential elements that affect the fundamental nature of the game.

OCR further clarified that in its January guidance, it was not requiring participation in nonacademic services and extracurricular activities to be addressed by a student’s Section 504 team as part of the free appropriate public education requirement, nor was it setting a legal requirement under Section 504 that IEPs address extracurricular athletic participation. However, districts must provide the assistance a student needs to participate in extracurricular athletics, even if the activity is not included in the IEP. Winooski (V) Sch. Dist., 46 IDELR 172 (OCR 2006). If the student cannot meaningfully participate, even with accommodations, the district may deny participation. Shoreline (WA) Sch. Dist. No. 412, 24 IDELR 714 (OCR 1996).

Tryouts

A school’s efforts to provide equal opportunities for participation in athletics should address tryouts for competitive teams, including cheerleading. Policies that preclude persons with disabilities from tryouts should be eliminated. Parents and students should be given notice of tryouts as early as possible. Criteria for making and competing on the team should be established and shared with parents and students prior to tryouts. When students are ranked on a variety of performance criteria, such as speed, balance, coordination, hand-eye coordination, sprint speed, lateral movement, the ability to catch the ball and accuracy in throwing a ball for baseball, schools can readily show all students were given an equal opportunity to tryout and that a student with a disability did not make the team based on skill level. See Maryville City (TN) Sch. Dist., 25 IDELR 154 (OCR 1996).

OCR has required accommodations to be provided during tryouts for competitive athletics and cheerleading as well as during the season. See Marion County (FL) Sch. Dist., 37 IDELR 13 (OCR 2001). Parents and students should understand how to request accommodations, if necessary, in either situation. See Sumner County (TN) Sch. Dist., 64 IDELR 222 (OCR TN 2014). At tryouts, coaches and sponsors should keep thorough documentation. OCR will not find a violation of Section 504 if decisions are made based on skill and the student’s skill and ability levels are not strong enough to make the team. See Cobb County (GA) Sch. Dist., 63 IDELR 297 (OCR 2014); Kennewick (WA) Sch. Dist. No. 17, 57 IDELR 262 (OCR 2011).

Cases on Point

Cheerleading Tryout Cases
  • Cobb County (GA) Sch. Dist., 63 IDELR 297 (OCR 2014). The fact that a high school cheerleader received a low score on her tryout performance undermined her claim that the school district prohibited her from joining the varsity cheerleading squad due to her diabetes. OCR noted a panel of coaches selected cheerleaders for the varsity squad by scoring each candidate’s performance on the same set of skills. The evidence showed the student received a low performance score because she executed low tumbling tucks, her dance motions were off count and not precise, and she had a slow running speed. Finding no evidence that the student’s disability played a role in her exclusion, OCR concluded that no Section 504 discrimination occurred.
  • Elgin (OH) Local Sch. Dist., 113 LRP 39041 (OCR 2013). OCR found the school district afforded a nonverbal student with Down syndrome equal opportunity to participate on the high school cheerleading squad by offering her various accommodations to help her prepare for the tryouts, to assist her, and to keep her safe during tryouts. OCR noted the district offered to provide specific cheers in writing and with visual choreography prior to tryouts, to allow her to use a communication device during tryouts, to provide her verbal prompting and visual cues during tryouts, and to ensure the presence of personnel trained to use her anti-seizure device and implement her seizure plan. The district also invited the parent to meet and discuss additional accommodations.

Attendance Requirements

Generally, OCR has allowed schools to enforce attendance requirements as a condition of participating in extracurricular athletics if policies are facially neutral and applied equally to all students. See Houghton Lake (MI) Community Schs., 45 IDELR 199 (OCR 2005) (student required to attend at least a half day to be eligible to participate in activities that day). However, the district court in Mowery v. Logan County Bd. of Educ., 2012 WL 895921, 58 IDELR 192 (D. W. Va. 2012), found a student with a hereditary metabolic disorder who had a homebound placement stated a claim for disability discrimination under Section 504 when he was prohibited from entering a senior class dance on the grounds if he was “too sick to come to school” he was also “too sick” to attend extracurricular events. When the reason for the failure to meet the attendance criteria is disability-related, schools may need to consider if modification of the policy would be appropriate.

Coaches should be trained on Section 504 requirements regarding participation of students with disabilities in extracurricular athletics. They should also be aware of required aids, accommodations, services or modifications contained in the student’s Section 504 plan and understand their implementation duties. See Cobb County (GA) Sch. Dist., 63 IDELR 297 (OCR 2014).

Cases on Point

Athletics/Tryouts
  • Sumner County (TN) Sch. Dist. 64 IDELR 222 (OCR TN 2014). When a student with a disability was not selected for her high school bowling team, her father complained that the tryouts did not provide reasonable accommodations. The district entered into a resolution agreement, agreeing to offer free coaching to the student and to discuss what reasonable modifications, aids, or services would afford her an equal opportunity to participate tryouts and/or the competitive bowling season. The district also agreed to provide annual training to faculty and staff, including volunteer coaches, on ensuring students with disabilities an equal opportunity to participate in extracurricular activities such as athletics.
  • Pine-Richland (PA) Sch. Dist., 62 IDELR 154 (OCR 2013). The fact that other students with disabilities made the cut undermined an assertion that coaches discriminated against a student with Asperger syndrome and anxiety disorder by not selecting him to play varsity ice hockey. Although the student had good junior varsity statistics, coaches believed he was not at the level of a varsity player. Twenty-seven students did not make the team, but several other students with disabilities were among the 16 chosen for the team, including one student with Asperger syndrome. OCR dismissed the complaint, finding no evidence to suggest the coaches’ treatment of the student or their decision not to select him for the team was related to his disabilities.
Athletics/Accommodations
  • Scarborough (ME) Pub. Schs.,66 IDELR 190 (OCR 2015). Districts must make reasonable modifications to their policies and procedures and must provide aids and services that are necessary to ensure that students with disabilities are afforded an equal opportunity to participate in extracurricular activities, unless districts can show that doing so would result in a fundamental alteration or would create an undue financial or administrative burden. This district agreed to alter its chaperone policy to let a registered nurse or parent attend a baseball trip with a student who required assistance due to his need for insulin.
  • Guilford County (NC) Schs., 67 IDELR 130 (OCR 2015). A North Carolina district entered into a resolution agreement with OCR to address compliance concerns over its eligibility requirements for students participating in interscholastic athletics. It promised, when deciding if a requested exception to its policies would constitute a fundamental alteration of its athletic program, to consider the direct relationship between a student's specific disability and his failure to meet the requirement at issue; the extent to which the failure to meet the academic and attendance standards was within the control of the student; and whether the district implemented the IEP or 504 plan.
  • Duval County (FL) Schs., 66 IDELR 230 (OCR 2015) A district should have convened a student's Section 504 team to determine whether he could participate in extracurricular activities after it received medical information regarding the student's asthma.
  • Pikeville (KY) Indep. Schs., 112 LRP 37715 (OCR 2012). OCR received a complaint that the district discriminated against a basketball player with diabetes when his coach allegedly denied him the chance to check his blood sugar levels during practices and denied him playing time during games because of his condition.
  • Harrah (OK) Pub. Schs., 62 IDELR 216 (OCR 2013). A mother complained her daughter was unfairly penalized when the district failed to implement her Section 504 plan with respect to absences for missing a softball session because of her Type 1 diabetes. The district settled the complaint with a resolution agreement, agreeing to train its staff members on their obligations under Section 504 both generally and specifically, addressing the equal opportunity to participate in athletic activities.
  • Wyoming City Schs., 57 IDELR 85 (SEA OH 2012). The school district violated IDEA when it relied on the opinion of a student’s swim coach to determine the student did not need a sign language interpreter on bus trips to and from swim meets. Because the student’s auditory processing disorder resulted in severe communication difficulties, the parent maintained the student needed an interpreter to assist him if he became ill. Noting that the matter should have been addressed at a properly convened IEP meeting, the state agency ordered the district to convene the IEP team to consider the issue.
Automatic Disqualification
  • Blissfield (MI) Cmty. Schs. 62 IDELR 95 (OCR 2013). A high school coach who believed a student with severe developmental delays was ineligible for the cheerleading squad because the student was slated to attend an off-site program for the first half of the school day was mistaken.  OCR concluded her view that students attending off-site programs for more than half of the day were automatically disqualified from their regular school’s extracurricular programs did not comply with Section 504 and denied the student an equal opportunity to participate.
Other Extracurricular Activities
  • Harrington v. Jamesville Dewitt Central Sch. Dist, 69 IDELR 235 (N.D.N.Y. 2017). An honor student with anxiety and depression failed to show that a New York district discriminated against him on the basis of disability when it prohibited him from participating in a school play as a consequence for alleged plagiarism.
Notice of Events
  • Santa Fe R-X Sch. Dist., 62 IDELR 99 (SEA MO 2013). Although the student with ADHD and SLD and his parent "did not have perfect knowledge of all events," the district took a variety of steps to ensure that parents and students were aware of activities, including through its online calendar, a “text-cast” that described a variety of upcoming activities, daily announcements, in-class sign-up sheets, parent-teacher conferences, and the student’s own planner. Further, the student had access to all of the activities in which he wished to participate.
  • Vicksburg Warren (MS) Sch. Dist., 56 IDELR 239 (OCR 2010). The school district failed to consider whether a student with a severe intellectual disability could participate in an afterschool enrichment program which taught students skills related to baking, crocheting, and knitting. Although at least one student with a disability received notice of and attended the program, OCR noted the district did not follow proper procedures in determining whether to provide notice to other students with disabilities. Also, rather than convening the IEP team or a group, one individual decided that the student’s "unpredictable behavior" weighed against his participation in the program.

Transportation

Transportation may qualify as either a related service or a nonacademic service or activity. Generally, transportation must be provided in a manner that affords students an equal opportunity for participation in extracurricular athletics or activities. See Prince William County (VA) Pub. Schs., 57 IDELR 172 (OCR 2011).

Cases on Point: Transportation

  • I.H. v. Fairlawn Bd. of Educ., 2017 WL 4475982, 70 IDELR 104 (D.N.J. 2017). A diagnosed medical condition won't automatically entitle a student to a related service, such as having a nurse on the bus when publicly placed in an out-of-district private school. It must first be determined what impact the condition has on the student's ability to receive FAPE without the related services requested.
  • K. v. North Allegheny Sch. Dist., 146 F.Supp.3d 700 (W.D. Pa. 2015). The school district did not have to defend allegations that it discriminated against a deaf-blind kindergartner by refusing to transport him between his assigned school and an out-of-district day care program for children with special medical needs. The District Court held that the parent's failure to allege an injury to the child, as opposed to herself, entitled the district to a dismissal of the complaint.
  • Marblehead (MA) Pub. Schs., 65 IDELR 214 (OCR 2015). Although a Massachusetts district didn't intentionally segregate students with disabilities on their way to prom, it agreed to make sure that, in the future, students would be integrated as much as possible. This complaint arose when special education students were transported to prom on a different bus from students without disabilities. OCR noted that, while the bus assignment policy didn't appear to be discriminatory, the district was still obligated to confirm that its policies didn't result in the segregation of students with disabilities.
  • Berkeley (CA) Unified Sch. Dist., 114 LRP 47366 (OCR 2014). A parent asked the district to incorporate two afterschool programs into the IEP of an elementary student with autism and speech-language impairment who required curb-to-curb transportation. The IEP team argued the student did not need to participate in the programs to receive a free appropriate public education.  OCR noted “participation in a ... extracurricular program need not be required by the student’s IEP or Section 504 plan ... for the student to receive ... aids, supports, services, and/or modifications.”  The district entered into a resolution agreement to address the parent’s concerns.
  • Southington (CT) Bd. of Educ., 62 IDELR 243 (OCR 2013). A mother alleged the school district denied her daughter the opportunity to participate in the school's theater program by not providing bus transportation from the student’s out-of-district placement. OCR indicated if a district places a Section 504 eligible student in an out-of-district school as a means of providing the student with a free appropriate public education, the district is responsible for providing any transportation that the student would have been entitled to receive if the educational program were delivered within the district. The district resolved the complaint by paying the mother’s mileage to transport the child to the afterschool program.
  • South Plainfield Bd. of Educ., 61 IDELR 148 (SEA NJ 2013). A school district did not violate IDEA by not providing the transportation services a 12-year-old boy needed to participate in extracurricular activities at his out-of-district special education school. Noting that the student made adequate progress toward his social skills goals without participating in afterschool activities, the ALJ determined those services were not necessary to provide the student FAPE and therefore transportation was not required. [NOTE: The ALJ did not address what obligations the district might have to provide the requested transportation services under Section 504. OCR would likely reach an opposite conclusion.]
  • Prince William County (VA) Pub. Schs., 57 IDELR 172 (OCR 2013). Attempts by middle school officials to obtain an activity bus for a student to attend chess club after school deprived the student of an equal opportunity to participate in afterschool activities. The student’s IEP included transportation as a related service. While the delay may have been due to a misunderstanding on the part of various staff members, that did not excuse the district’s failure.

The regulation regarding nonacademic services, 34 CFR § 104.47, can be found in Appendix E.

After School Programs

Section 504 does not require a school district to provide extracurricular activities or nonacademic services, but it does require an equal opportunity for participation by students with disabilities if these activities or services are provided. This includes a requirement that parents and students have adequate notice of the programs and criteria for participation. Waterbury (CT) Sch. Dist., 51 IDELR 198 (OCR 2008); Santa Fe R-X Sch. Dist., 62 IDELR 99 (SEA MO 2013). In Westside (CA) Union Sch. Dist., 61 IDELR 55 (OCR 2013), OCR suggested schools should have policies or procedures addressing the participation of students with disabilities in these programs and informational materials should describe how to request accommodations. Additionally, program coordinators should be trained on Section 504 requirements.

Unless doing so would fundamentally alter the program, schools must provide aids, services, or accommodations and/or make reasonable modifications to policies, practices or procedures to allow a student with disabilities the opportunity to participate in supplemental after school programs, tutoring programs, enrichment programs, field trips, or other activities. See South Lyon (MI) Community Schs., 54 IDELR 204 (OCR 2009).

A decision to exclude a student with a disability from these activities must be made on an individual basis, with the school district bearing the burden of proving the need for the exclusion. See Salida (CA) Union Sch. Dist., 49 IDELR 166 (OCR 2007). OCR has sent mixed messages on whether a student’s Section 504 team must be convened to determine aids and services for extracurricular activities. OCR does not consider these determinations to be placement decisions under Section 504. However, it has frowned on school personnel making unilateral decisions regarding accommodations or exclusion of students with disabilities from participation. In Mattituck-Cutchogue (NY) Union Free Sch. Dist., 113 LRP 27884 (OCR 2013), OCR concluded a school district violated Section 504 when the school principal and special education director unilaterally decided a student with anxiety, who had been released from the hospital one day earlier, could not participate in a field trip to Washington, D.C. In San Ramon Valley (CA) Unified Sch. Dist., 114 LRP 7220 (OCR 2013), OCR explained before excluding a student with a disability from a field trip, the student’s 504 or IEP team must conclude that, even with the provision of accommodations, the student is not qualified to participate; the provision of accommodations would result in an undue burden; or, the field trip is otherwise inappropriate to the child’s needs.

Cases on Point: After School Programs

  • Elmore County (AL) Sch. Dist., 70 IDELR 162 (OCR 2017). School's claim that its aftercare program was "not equipped to handle children with extreme behavior issues" did not excuse its decision to unenroll a student with developmental delays from the program.
  • Huntsville (AL) City Sch. Dist., 114 LRP 36268 (OCR 2014). The school denied a student with diabetes an equal opportunity to participate in its afterschool program when it refused to provide a nurse to administer his insulin. The district entered into a resolution agreement, agreeing to promptly evaluate the student for IDEA and Section 504 eligibility and provide him with the services he needed to access the afterschool program, including trained personnel to administer insulin at regular intervals. It also agreed to develop policies and procedures regarding accommodations for students with disabilities at extracurricular activities and conduct annual Section 504 and training for staff and faculty members.
  • Westside (CA) Union Sch. Dist., 61 IDELR 55 (OCR 2013). A school district violated Section 504 by excluding twin sixth-graders with ADHD from an afterschool math tutoring program for disruptive behavior without first assessing their individual needs. Because the students had IEPs, the district “should have conducted individualized assessments to determine whether they needed accommodations to have an equal opportunity to participate in the program,” OCR indicated. OCR advised the district to revise its policies and train staff to ensure students with disabilities had an equal opportunity to participate in afterschool programs.  OCR also suggested informational materials about afterschool programs should describe how parents can request accommodations and program coordinators should be trained on Section 504 requirements.
  • Vicksburg Warren (MS) Sch. Dist., 56 IDELR 239 (OCR 2010). The school district erred in failing to consider whether a student with a severe intellectual disability could participate in an afterschool enrichment program which taught students skills related to baking, crocheting, and knitting. Although at least one student with a disability received notice of and attended the program, OCR noted the district did not follow proper procedures in determining whether to provide notice to other students with disabilities. In this instance, rather than convening the IEP team or a group of individuals, one individual decided that the student’s “unpredictable behavior” weighed against his participation in the program.

Field Trips

Field trips can pose challenges for school districts, particularly in lean budgetary times. However, lack of funds will not support a decision to exclude a student with disabilities from participation in a field trip. See Thompson (CO) Sch. Dist. #R2-J, 57 IDELR 81 (OCR 2011). OCR has recognized that students may be excluded from field trips for legitimate reasons, including:

Academic program

If the purpose of the field trip is related to curriculum the student is not studying, exclusion may be appropriate. Accomack County (VA) Pub. Schs., 49 IDELR 50 (OCR 2007). But see Bloomington Pub. Sch. Dist. ISD #0271-01, 68 IDELR 293 (OCR 2016) (the fact that a school's field trips were designed to supplement the general education curriculum didn't justify excluding students with autism who attended a self-contained program).

Unacceptable risk to the student’s health or safety.

A student may be excluded from a field trip if the school believes the student’s participation would present an unacceptable risk to the student’s health or safety that cannot be ameliorated by aids, services or accommodations. North Hunterdon/Voorhees Regional (NJ) High Sch. Dist., 25 IDELR 165 (OCR 1996). If a district identifies genuine safety concerns that may require excluding a child with a disability from a field trip, the concerns should be documented as they arise. In this case, a a student with autism was not included in a visit to an aquarium. The student's progress notes, fully outlining her behavioral incidents helped show the decision was not based on the disability but safety. Lawrence (MA) Pub. Schs., 56 IDELR 55 (OCR 2010).

Violations of the disciplinary code

Students may be excluded from participation for violating the code of student conduct so long as the rules apply equally to all students. Sandusky (OH) Exempted Village Sch. Dist., 112 LRP 53081 (OCR 2012).

No reasonable accommodation exists

In I.A. v. Seguin Indep. Sch. Dist., 881 F.Supp.2d 770 (W.D. Tex. 2012), the court concluded the school district did not violate Section 504 by denying a student in a wheelchair participation in a field trip to a non-accessible cave. The court rejected arguments the school should have carried the student through the cave, videotaped the interior of the cave, or arranged a trip to a wheelchair accessible cave.

Cases on Point

Field Trips
  • Eastern (OH)Local Schs., 70 IDELR 78 (OCR 2017) A principal and school nurse who expressed doubt that a high schooler could manage her diabetes care on two field trips violated Section 504 when they effectively barred her from the outings.
  • Park City (UT) Sch. Dist., 116 LRP 26077 (OCR 2016). While a Utah district may not have explicitly required parents of students with diabetes to attend field trips so their children could receive insulin shots, it clearly expected them to do so. Noting that the district didn't ask parents of nondisabled students to attend field trips, OCR concluded that the district subjected students with diabetes to different treatment based on their disabilities. Moreover, OCR observed that the district's explanation that it only asked parents to attend when a nurse was unavailable wasn't a legitimate reason for the different treatment.
  • Los Banos (CA) Unified Sch. Dist., 116 LRP 26079 (OCR 2016). A teacher decided not to send a permission slip to the parents of a student with autism for a class field trip. In finding lack of compliance with Section 504 and Title II, OCR observed although the district may exclude a student from a field trip due to safety concerns, the district must let the student's IEP or 504 team make that determination.
  • Ashby (MN) Sch. Dist., 69 IDELR 190 (OCR 2016) A district resolved allegations that it discriminated against a grade-schooler with epilepsy by not making her medication available during field trips.
  • Lee County (FL) Sch. Dist., 68 IDELR 285 (OCR 2016) A district discriminated against a student with ADHD when it required his mother to attend a trip to the zoo to manage his behavior.
  • Anderson County (TN) Sch. Dist., 66 IDELR 52 (OCR 2015). The school violated Section 504 when it failed to assign a school nurse to check a student’s blood sugar levels every afternoon as required by his 504 plan. As a result, the mother of the elementary student with diabetes had to come to school each day and attend field trips for three months to ensure that the child received the appropriate amount of insulin.
  • Donegal (PA) Sch. Dist., 66 IDELR 231 (OCR 2015) The school district may have violated Section 504 and Title II when it conditioned the participation of a student with nut allergies in class field trips on his parent's availability to "monitor his safety" instead of providing him with accommodations that would reduce his exposure to allergens.
  • Bellingham (MA) Pub. Schs., 64 IDELR 24 (OCR 2014). A parent could not prove that a district discriminated against a student with a behavioral disability when it excluded him from a class field trip. OCR noted that the district provided a legitimate reason for the student's exclusion -- he received two failing grades on his report card. According to school policy, students who received an "F" in two or more subjects on a single report card would be disqualified from the trip. OCR opined that the district applied this policy in a nondiscriminatory manner because, among the 15 children who received two failing grades and were barred from the trip, nine did not have disabilities.
  • North West Hendricks Schs., 64 IDELR 186 (SEA IN 2014). Choir teachers improperly excluded a student with a disability from participating in afterschool choir recitals that counted as a grade for his classmates and a class field trip to the zoo. To resolve the complaint, filed at the state level, the district agreed to conduct in-service training for all administrators, teachers, and paraprofessionals regarding the inclusion of special education students in curricular and extracurricular activities.
  • Bighorn (WY) Sch. Dist. #2, 61 IDELR 236 (OCR 2013). A parent claimed the district required her to monitor the student's blood glucose levels when the school nurse was not available and required her to accompany the student on all field trips. She also alleged that the district refused to train anyone other than the nurse to administer glucagon to the student. To resolve the complaint, the district revised the student's Section 504 plan to permit self-monitoring of blood glucose and committed to training at least four adult staff members to serve as "Trained Diabetes Personnel" to accompany the student on field trips and provide diabetic care services in the nurse's absence.
  • Triton (MA) Reg’l Sch. Dist., 114 LRP 15840 (OCR 2013). Parents alleged the district denied their child, who had an aide during the school day, an opportunity to participate in a field trip to a park with his typically developing peers. Specifically, they claimed that the district invited the student to attend the trip on the condition that his parents personally supervise him or provide other supervision.
  • West Contra Costa (CA) Unified Sch. Dist., 62 IDELR 242 (OCR 2013). A school district required an autistic child’s mother to accompany him, instead of providing an aide, on a kindergarten field trip to a candy factory. OCR noted while a district may request a parent accompany a student with a disability on a field trip, it cannot require it as a condition of participation. If a student needs behavioral support from an aide in order to participate, the district must provide the aide, at no cost to the parent, unless doing so would fundamentally alter the nature of the activity or constitute an undue burden.
Overnight Stays
  • Bellingham (MA) Pub. Schs., 64 IDELR 24 (OCR 2014). A parent alleged to OCR that the district denied the eighth-grader an opportunity to attend a district-sponsored overnight trip to Washington, D.C. with his typically developing classmates. OCR found the claim had no merit because there was a legitimate reason for the student’s exclusion -- two failing grades on his report card. The field trip notice, sent to all parents, indicated students who received an “F” in two or more subjects on a single report card would be disqualified from the trip. Further, the policy was applied in a nondiscriminatory manner, barring 15 students from the trip, including nine students who did not have disabilities.
  • Yakima (WA) Sch. Dist. No.7, 64 IDELR 53 (OCR 2014). OCR concluded the school’s failure to communicate with the parents of a high school band member with epilepsy violated Section 504. Because the parents were only told a nurse would not be available, the parents prohibited the student from staying at a band camp overnight with her nondisabled peers. The student’s Section 504 plan specified she required a nurse whenever she traveled outside a 15-minute 911 response area, but only required the supervision of a trained staff member within a 15-minute 911 response area.  OCR determined the failure to inform parents that three medically trained chaperones were available to monitor the student’s seizures overnight impeded the student’s full participation in the extracurricular activity.
Special Events
  • Wiggins (CO) Sch. Dist. 50, 63 IDELR 267, (OCR 2013). A parent claimed the district failed to provide her daughter with accommodations for her gluten allergy during school hours and extracurricular activities, effectively excluding her from after school events with her nondisabled peers. The district voluntarily resolved the parent’s concerns by convening a Section 504 team and developing a Section 504 plan for the student. The district agreed to provide a gluten-free food option at all special events and conduct training regarding celiac disease for all staff involved in the student’s care and education.

Print Chapter 9-Grades, Honors & Awards


Section 504 Handbook

Chapter 9-Grades, Honors & Awards

Grading Systems
Report Cards
Transcripts
Honor Roll
Calculating School-Wide GPA Standings
Rewards and Incentives

Grading Systems

As a general rule, grading systems should be the same for all students. Districts should apply their grading policies and procedures in a neutral manner, unless a student’s Section 504 plan authorizes the use of a modified grading system based on her individual needs. Eastmont (WA) Sch. Dist. No. 206, 114 LRP 42762 (OCR 2014).

A district may use a different grading system for a student with a disability participating in the general curriculum only if the student’s IEP or Section 504 team, not an individual teacher, adopts an alternate system in response to the student’s individual disability-related needs. See Ann Arbor (MI) Pub. Sch. Dist., 30 IDELR 405 (OCR 1998) (grading issue should have been referred to the IEP team, not the individual teacher, for resolution); Ottawa Twp. (IL) High Sch. Dist. 140,27 IDELR 373 (OCR 1997) (district did not discriminate when it held a student with a learning disability to the same standards of course performance as his classmates in the absence of an IEP team decision to the contrary). An IEP or Section 504 team should consider the need for an alternate grading system where the student’s disability precludes the possibility of performance at the same level as peers. In Harrison County (WV) Sch. Dist., 353 IDELR 120 (OCR 1988), OCR determined the school district violated Section 504 by requiring a student with a severe communication disorder to be graded exactly like her peers in language and writing skills, despite the student’s physical limitations which made performance at the same level impossible.

Grades for special education courses should not be discounted or otherwise diminished on a categorical basis. Plymouth-Carver (MA) Regional Sch. Dist. 7, 353 IDELR 134 (OCR 1988). School districts also should not modify grades on the basis of a student’s special education status alone. Doing so raises a strong inference that children with disabilities are being treated differently on the basis of their disabilities. Similarly, weighted grading systems that arbitrarily assign lower weights to all special education courses likely violate Section 504. However, weighted grading systems may be permissible, if the school district has documented and can explain the process and criteria used to assign various weights to each course or subject.

OCR will support the school district’s assignment of weights to courses, assuming a school district can present a coherent methodology that is consistent with guidance set out governing the permissible use of weighted grading systems. Letter to Runkel, 25 IDELR 387 (OCR 1996). Under a weighted grade system, both a regular education course and a special education course that differ only in the manner in which the material is presented should be considered to have the same level of difficulty. Letter to Ickes, 305 IDELR 50 (OCR 1989). A district may use a weighted grade system to compile grade-point average standings used to compute class rank, honor roll status, honor society eligibility, etc., only if the system is based on objective rating criteria. In this regard, both the level of difficulty and the student’s level of academic achievement must be taken into account. See Centerville (OH) City Sch. Dist., 40 IDELR 20 (OCR 2003).

Schools can use asterisks, symbols or other codes to indicate a modification or exception to the regular grading scale, provided that the same designations are used for students without disabilities who are graded on an alternate scale. Districts can use the same notation for special education classes and courses with a higher degree of difficulty. Letter to Runkel, 25 IDELR 387 (OCR 1996).

School district grading policies that penalize or reward students based on attendance can be problematic for several reasons unrelated to disability. (See the KASB Student Discipline Handbook). But, when the absences of a student with a disability are disability-related, failing to make reasonable accommodations to the attendance policy, which may appear neutral on its face, can result in a violation of Section 504. Penalties based on absence may be applied to students with disabilities like any other student, if the absence is not related to the disability.

Cases on Point

Grading Policies
  • Eastmont (WA) Sch. Dist. No. 206, 114 LRP 42762 (OCR 2014). The parent alleged the district penalized the student for using the classroom accommodations set forth in her Section 504 plan by not allowing her to earn full credit (giving only three of four points) when she submitted alternative assignments in her physical education class. In a resolution agreement, the district promised to recalculate her physical education grade and to amend her transcript to reflect the change. In addition to training, it also agreed to develop a new policy to ensure all students on 504 plans or IEPs would have the opportunity to earn full credit for alternative assignments.
Alternate Grading
  • Shenendehowa (NY) Cent. Sch. Dist., 114 LRP 23576 (OCR 2014). OCR has found it permissible to grade a student with a disability differently than regular education peers in situations where the student's placement team determined the grading methodology on an individual basis and the methodology was not the result of systematic different treatment on the basis of disability
  • North Hunterdon/Voorhees Regional (NJ) High Sch. Dist., 25 IDELR 165 (OCR 1996). Alternate grading system for a student with a disability did not violate Section 504 where the placement team determined the grading methodology on an individual basis and it was not the result of systematic different treatment on the basis of disability.
  • North East (TX) Indep. Sch. Dist., 24 IDELR 298 (OCR 1995). The school district's use of weighted grades did not violate Section 504. The weighted grades reflected different academic levels in coursework in basic and special education classes where the differences in the method of instruction and in the quantity of the material covered between the classes were significant.  Additionally, the placement of each student with a disability in "special," "basic," "regular," or "honors" classes was based on the IEP team's consideration of individual needs.
  • Plymouth-Carver (MA) Reg'l Sch. Dist. 7, 353 IDELR 134 (OCR 1988). A weighted grading system that assigned lowest weight, one on a scale of 1 to 6, to all special education courses violated Section 504.
Absences
  • Fayette County (GA) School Dist., 44 IDELR 221 (OCR 2005). School district did not violate Section 504 by evaluating each of a student’s absences to determine if it would be excused rather than allowing him to be automatically excused for absences related to medical needs. The district also required a doctor's note for the absence to be excused. Further, OCR determined the practice of allowing exemption from final exams for students with no more than five absences, excused or unexcused, was facially neutral.

Special education hearing officers have no jurisdiction over a dispute about a grade, and due process will generally not be an option unless there is an alleged denial of the right to a free appropriate public education. Hacienda La Puente Unified Sch. Dist., 27 IDELR 885 (SEA CA 1997).

A student with a disability who receives modifications in the regular classroom may receive a modified grade in some circumstances. Analysis of several factors ultimately determines whether modified grading is appropriate and nondiscriminatory. Modified grades may be permissible for students with disabilities who receive content changes in their general education curriculum. Modified grades may also be appropriate where the grading modification is designed by the student's placement team and indicated on his IEP or Section 504 plan. In these instances, the student should be given the option of earning a regular grade by foregoing special education modifications. Metropolitan (TN) Pub. Sch. Dist., 18 IDELR 971 (OCR 1991).

In its Dear Colleague Letter on Report Cards and Transcripts for Students with Disabilities (OCR 2008) (See Appendix N), OCR indicates report card grades for students with disabilities can be based on grade-level standards when the student participates in the general education curriculum. The guidance also suggests when a student is taught using a modified or alternate curriculum the school district can decide the standard to be applied to measure the student’s progress.

Report Cards

Report cards are documents designed to inform parents about a student’s progress. They are not intended to be made available to potential employers, postsecondary institutions, or other entities outside of the district. Report cards should provide a meaningful explanation of a student’s progress and, in doing so, can refer to the student’s receipt of special education and/or related services. Report cards can use symbols or codes to denote the student’s participation in special education classes or accommodations in general education classes. Report cards may also refer to another document that more fully describes the student’s progress. DCL: Report Cards and Transcripts for Students with Disabilities (OCR 2008).

A district must use the same type of report card system for students with disabilities and students without disabilities to advise parents about their children’s progress and to ensure the provision of comparable information in this regard. See Montebello (CA) Unified Sch. Dist. 20 IDELR 388 (OCR 1993). However, a district may use different report cards and progress reports for students with disabilities if it can demonstrate the reporting system is at least as effective and as frequent, as the regular reporting system. See Saddleback Valley (CA) Unified Sch. Dist., 17 IDELR 251 (OCR 1990) (children with severe disabilities may have unique needs that make the use of report cards and progress reports used in other schools ineffective or irrelevant, allowing for the use of an alternative reporting system).

There are some special considerations a school district should bear in mind when issuing report cards to students with disabilities. IDEA requires periodic reporting of progress, including reports on the progress the student is making on IEP goals and objectives. Report cards for students with disabilities must be at least as informative and frequent as the report cards provided for students without disabilities. Shenendehowa Cent. (NY) Sch. Dist., 114 LRP 23576 (OCR 2014).

Transcripts

School districts cannot provide different or separate aid, benefits, or services to students with disabilities, unless such action is necessary to put those students on a level playing field with other students. Notations on transcripts “used exclusively to identify a student as having a disability or identify education programs for students with disabilities unnecessarily provide these students with different educational benefits or services.” Therefore, a school violates Section 504 if it includes a notation on a student’s transcript indicating the student received special education or related services or that the student has a disability. DCL: Report Cards and Transcripts for Students with Disabilities (OCR 2008) See Appendix N.

As a general rule, a school district should avoid use of any course designation that appears to be used exclusively in connection with special education programs for students with disabilities, but labels such as “basic,” “level 1,” “practical,” “independent study,” or “modified curriculum” may be acceptable. However, terms such as “homebound instruction,” “resource room,” “PE requirement waived-medical,” “peer facilitator used,” “special opportunity school,” and “learning center” may be suspect. In looking at possible designations, schools should select terms that are used to describe programs it provides for nondisabled students, or in any event, could credibly be used to describe these programs. Letter to Runkel, 25 IDELR 387 (OCR 1996).

Asterisks or other symbols or codes may be used to identify the grade of a student reflects his level of achievement in a regular education class with modified course content, but OCR advises caution in using such coding. If the only instance in which a district uses special symbols is to indicate content modification for students with disabilities, then OCR suggests Section 504 is violated. The use of a code system that covers enhanced or greater-difficulty coursework completed by gifted and talented program students as well as any remedial courses is more likely to be viewed as nondiscriminatory.

A school district cannot modify grades or make special designations on transcripts to indicate that a student with a disability has participated in general education curriculum classes with the support of accommodations, such as note-taking assistance, Braille materials, or extended time on examinations. DCL: Report Cards and Transcripts for Students with Disabilities (OCR 2008). The identification on a transcript of special education coursework completed by a student with a disability may be permissible in “limited circumstances” where the designation is based on a difference in course content, rather than the manner in which the course is taught. Ann Arbor (MI) Pub. Sch. Dist, 30 IDELR 405 (OCR 1998). In the DCL, OCR indicates the use of notations to indicate a modified or alternate curriculum is consistent with the purpose of informing postsecondary institutions and prospective employers about a student’s academic credentials and achievements. Such notations are permissible so long as they do not disclose that the student has a disability, are not used to identify programs for students with disabilities and are consistent with the purpose of a student transcript.

Honor Roll

In most school districts, placement on the honor roll is based upon objective standards of academic performance. The use of uniform standards for measuring academic achievement does not violate Section 504 as long as academic distinctions are made through application of objective criteria and on a nondiscriminatory basis. Students may be required to perform on grade level or meet certain grade requirements. Schools can establish eligibility standards that recognize levels of academic excellence that some students with disabilities will never be able to achieve  See Prince William County (VA) Sch. Div., 25 IDELR 538 (OCR 1996).

Blanket exclusion from the honor role, based on the student’s disability, rather than the content of his curriculum, violates Section 504. See Fordland (MO) R-III Sch. Dist., 353 IDELR 127 (OCR 1988). Even if honor roll selection criteria are based on objective grading of uniform academic content, the school cannot deny students with disabilities opportunities to participate in honors programs. See Fort Smith (AR) Pub. Schs., 20 IDELR 97 (OCR 1993) (district’s grading system, which prohibited recognition of academic achievement for students with disabilities if they received an ability/effort grade rather than being graded on a competitive basis was discriminatory where there was no alternative honors program for students graded on that basis); Paris (TN) Special Sch. Dist. 1219, 51 IDELR 84 (OCR 2008) (a student who received instruction in a comprehensive developmental class was entitled to the same recognition given to other students who earned A’s and B’s in their courses); Gallia County (OH) Local Schs., 59 IDELR 264 (OCR 2012) (student could not be denied eligibility for academic awards because she had a 504 plan permitting her to retake tests on which she scored less than 75 percent).

School districts may establish of a list of “core courses” that must be completed in order to be eligible for honor roll recognition. School districts may also use a weighted grading system that assigns lower grade weights to some courses, including special education courses, for honor roll purposes, without violating Section 504, so long as the lower weightings result from an assessment of actual differences in the difficulty of the courses as compared to regular education courses. Generally, weighting systems will not result in discrimination under Section 504 if:

  • The weighting system is based on objective rating criteria;
  • Each subject or course is individually analyzed and assigned a degree of difficulty factor based upon its individual contents; and
  • The system is fair and simple to understand.

Categorization of courses based solely on the disability classifications of the students enrolled in the courses could violate Section 504. Letter to Ickes, 305 IDELR 50 (OCR 1989).

Schools should review their honor roll eligibility policies to ensure requirements do not have an adverse impact on students with disabilities. In King Philip (MA) Reg'l Sch. Dist., 110 LRP 59041 (OCR 2010), the district agreed to  amend its honor roll requirement that students be taking  a full course load so it would not apply to those students taking a reduced course load pursuant to an agreed upon Section 504 plan or individualized education plan.

If a student with a disability satisfies a district’s objective criteria for academic honors, the district must treat the student as it would any other award winner. This includes invitations to celebrations, the awarding of certificates or academic letters, and public recognition of the student’s achievement.

  • Paris (TN) Special Sch. Dist. 1219, 51 IDELR 84 (OCR 2008). Districts must include students with disabilities that qualify for the honor roll in honor roll announcements. A student with a disability who received instruction in a comprehensive developmental class was entitled to all of the recognition given to other students who made the honor roll.
  • Fort Smith (AR) Pub. Schs., 20 IDELR 97 (OCR 1993). A school district’s two-track grading system, which did not employ a competitive grading system for students with disabilities, restricted their opportunity to be placed on the honor roll. Moreover, no alternative opportunity to earn honors or awards reflecting their efforts and achievements was provided to that group of students. To resolve the complaint, the school district was permitted to continue its honor roll program and agreed to establish an alternate program under which students with disabilities, whose opportunity for honor roll placement was restricted by ability/effort grading, could earn honors and awards based on their efforts and achievement.

Calculating School-Wide GPA Standings

OCR makes no legal distinction between ranking students by GPA and determining which students will be identified on a school’s honor roll. Letter to Runkel, 25 IDELR 387 (OCR 1996). Because categorical exclusion is discriminatory, letter grades earned by students with disabilities in classes outside of the general curriculum must be included in GPA standings. However, school districts have the same options to exclude or discount such grades as they do with honor roll recognition as discussed in the previous section of this chapter. Students may be graded differently if the IEP or Section 504 team determines the grading methodology and the district may use a weighted grading system, if it is based on objective criteria, to calculate GPA standings.

Hornstine v. Township of Morrestown, 263 F.Supp.2d 887 (D.N.J. 2003), involved a challenge to the school’s system for choosing its senior class valedictorian based on calculated GPA. In this case, a special education student had a condition that caused her to suffer substantial fatigue and prevented her from attending a full day on the school’s premises. Her IEP called for afternoon instruction at home. Despite her challenges, the student took many honors classes, had the highest weighted grade-point average at the end of the seventh semester, and under the school policy should have been named the senior class valedictorian.

After a number of students, parents and others expressed concerns she had an unfair advantage because of her accommodations, the school superintendent proposed a retroactive amendment to the policy, allowing the board to name multiple valedictorians and to avoid naming the student as one of them. The student sought a temporary restraining order and other relief through legal action. The District Court granted the temporary restraining order, noting the board could modify its policies prospectively, but not retroactively, and denied the defendants’ motion to dismiss the disability discrimination claims. The court concluded the board and the superintendent clearly intended to discriminate against the student on the basis of her disability with the retroactive application, noting he superintendent investigated her educational experience and performance and calculated the accuracy of her grades, but did not do so for any other students.

Rewards and Incentives

School incentive and reward programs should treat students with disabilities no differently than they treat nondisabled students to avoid Section 504 problems. Districts must provide an equal opportunity for students with disabilities to participate in school programs and activities. Students with disabilities cannot be categorically excluded from participation in incentive and reward programs. As with grading policies, incentive or reward programs based on attendance may require modification of policies for students whose disabilities render meeting the established criteria for participation impossible.

Cases on Point

Awards
  • Park Hill (MO) Sch. Dist., 68 IDELR 78 (OCR 2016) The district resolved allegations that it engaged in discrimination by creating award ceremonies and lunch tables exclusively for students with disabilities.
Honor Society
  • Windsor (MO) C-1 Sch. Dist., 63 IDELR 53 (OCR 2013). A student, through an attorney, alleged the school district excluded him from membership in the honor society because of his Asperger syndrome and ADHD. To resolve the complaint, the school district agreed to provide all students, at the beginning of each academic year, with the honor society's selection procedures, rating scale, and the specific, objective standards used to determine membership eligibility. Specifically, it agreed to explain the criteria to the student and to provide the student with accommodations, if necessary, to prepare the application.  It also agreed to thoroughly review the national honor society membership application of the student and to revise the honor society's bylaws and procedures.
Exclusion from Reward Activity
  • DeSoto Parish (LA) Sch. Bd., 61 IDELR 175 (OCR 2013), Exclusion of a student from a track meet was not evidence of retaliation for filing a Section 504 complaint where the track meet was designed to be a reward for students who had avoided disciplinary action in the previous nine weeks and the student's exclusion stemmed from an altercation with a classmate. OCR noted the district also excluded the other student involved in the altercation and 38 additional students who had received disciplinary referrals in the previous nine weeks.
Notice of Incentive Trip
  • Southern Fulton (PA) Sch. Dist., 55 IDELR 53 (OCR 2009). The parent of a student with a disability alleged the district offered an incentive trip to seniors who scored proficient or advanced on the regular statewide assessment. However, the parent claimed, the district did not offer the incentive to students with severe disabilities who took an alternate assessment. The district informed alternative assessment test-takers about the incentive trip at a different time than others because the district received the test results at different times. Therefore, OCR concluded the district had legitimate, nondiscriminatory reasons for its actions and did not violate Section 504.

Print Chapter 10-Harassment on the Basis of Disability


Section 504 Handbook

Chapter 10-Harassment on the Basis of Disability

Defining Disability-Based Harassment
Addressing Harassment
Bullying of Students with Disabilities
Did Disability-Based Harassment Occur?
Harassment & Denial of FAPE
The Standard Applied: OCR & the Courts
Constructive or Actual Knowledge
Appropriate Officials
Severity of the Conduct
Deliberate Indifference
Denial of FAPE Cases

Harassment and bullying of students with disabilities is an ongoing problem for schools. Guidance from the OCR frequently indicates students with disabilities are disproportionately affected by bullying and particularly vulnerable to bullying and harassment. Studies show that students with disabilities are two to three times more likely to be bullied than their nondisabled peers. See “Walk a Mile in Their Shoes,” abilitypath.org/walk-a-mile-in-their-shoes-report.

Defining Disability-Based Harassment

Disability-based harassment under Section 504 and Title II of the Americans with Disabilities Act is defined as “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student's participation in or receipt of benefits, services, or opportunities in the district's program.”  OCR Dear Colleague Letter on Prohibited Disability Harassment (06/25/2000). Examples of the types of behavior that might constitute disability harassment, taken from this guidance, are outlined below.

Examples of Disability-Based Harassment

  • Several students continually remark out loud to other students during class that a student with dyslexia is “retarded” or “deaf and dumb” and do not belong in the class; as a result, the harassed student has difficulty doing work in class and her grades decline.
  • A student repeatedly places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates' ability to enter the classroom.
  • A teacher subjects a student to inappropriate physical restraint because of conduct related to his disability, with the result that the student tries to avoid school through increased absences.
  • A school administrator repeatedly denies a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for required activities related to the student’s disability.
  • A professor repeatedly belittles and criticizes a student with a disability for using accommodations in class, with the result that the student is so discouraged that she has great difficulty performing in class and learning.
  • Students continually taunt or belittle a student with mental retardation by mocking and intimidating him so he does not participate in class.

Since its initial guidance on prohibited disability harassment in 2000, additional guidance documents from the Office for Civil Rights and the Office of Special Education and Rehabilitative Services have been issued. In October 2010, the Office for Civil Rights issued the first of several “Dear Colleague” letters addressing bullying. (See Appendix P). The relationship between bullying and harassment was clarified in the 2010 guidance. When bullying conduct also constitutes harassment, schools must look beyond bullying resolution procedures and ensure harassment policies and procedures are followed in resolving complaints.

Addressing Harassment

In addressing discriminatory harassment, schools must investigate and otherwise address complaints of harassment, taking steps to end the harassment, prevent the harassment from recurring, remedy the effects of the harassment and prevent retaliation. See Westfield (MA) Pub. Schs., 53 IDELR 132 (OCR 2009); Los Angeles (CA) Unified Sch. Dist., 46 IDELR 198 (OCR 2006). If efforts to address the harassment and prevent future incidents are written into a Section 504 plan, the district must also ensure the plan is implemented or run the risk of violating Section 504. See Santa Monica-Malibu (CA) Unified School District, 55 IDELR 208 (OCR 2010).

Appropriate responsive steps, according to OCR, may include:

  • Separating the accused harasser and the target;
  • Providing counseling for the target and/or harasser;
  • Taking disciplinary action against the harasser;
  • Providing training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and know how to respond;
  • Developing new policies against and procedures to allow students, parents, and employees to report allegations of harassment; and/or
  • Widely disseminating existing policies and procedures, including contact information for the district's Section 504 coordinator.

In Sevier County (TN) Sch. Sys., 115 LRP 1470 (OCR 2014), OCR suggested there were compliance issues with the school’s response to the internal complaint filed by the parents because the school did not provide written notice of its findings to the parents, even though the school adequately investigated and addressed the substantive issues of the complaint.

Bullying of Students with Disabilities

In August 2013, the Office of Special Education and Rehabilitative Services issued a Dear Colleague Letter on “Bullying of Students with Disabilities,” providing an overview of a school district’s responsibilities under IDEA to address bullying of students with disabilities. OSERS indicated the bullying of a student with a disability on any basis, disability-related or not, may result in a denial of the student’s right to a free appropriate public education. This is particularly likely if “as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide meaningful educational benefit.”  Additionally, placement of a student with a disability in a more restrictive environment to protect the student from bullying may violate the least restrictive environment requirement of IDEA.

The most recent guidance from OCR was issued on October 21, 2014. (See Appendix R). This advice builds on the OSERS letter, addressing the obligation of schools to respond to the bullying of students with disabilities, including bullying of students entitled to services under Section 504 only. The letter discusses the actions schools must take when bullying interferes with the education of a student with a disability who is bullied on any basis and provides insight into how OCR analyzes complaints involving bullying of students with disabilities.

Did Disability-Based Harassment Occur?

OCR analyzes disability-related bullying or harassment complaints by asking the following questions:

  • Was a student with a disability bullied by one or more students based on the student’s disability?
  • Was the bullying conduct sufficiently serious to create a hostile environment?
  • Did the school know or should it have known of the conduct?
  • Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects?

If the answer to all of the questions is “yes,” OCR would find a disability-based harassment violation of Section 504 occurred. However, a “no” answer to any question would result in a finding that disability-based harassment has not occurred. Presumably, OCR would ask these same questions when looking at any type of harassment, and would move to the next stage of the analysis, whether or not the bullying or harassment is disability-related harassment.

Harassment & Denial of FAPE

After determining if bullying or harassment on any grounds has occurred, OCR will consider whether the student with a disability was receiving services under IDEA or Section 504 and whether the harassment resulted in a denial of the right to a free appropriate public education under Section 504. Whenever a school knew or should have known the bullying may have affected the student’s receipt of services, under IDEA or Section 504, the school must meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs are still being met, and if not, make changes to the IEP or Section 504 plan. To meet this obligation, unless the investigation clearly shows the bullying did not affect the receipt of a free appropriate public education, OCR suggests the school should promptly convene the student’s IEP or Section 504 team to determine whether and to what extent:

  • The student’s educational needs have changed (as evidenced by indicators such as a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in absence from classes or Section 504 service sessions);
  • The bullying impacted the student’s receipt of IDEA Section 504 services;
  • Additional or different services, if any are needed.

Changes, if needed, should be made promptly and should not put the onus on the student with the disability to avoid or handle the bullying.

The Standard Applied: OCR & the Courts

In investigating complaints of harassment, OCR applies a lower standard than the courts in determining if a school will have liability for harassment. The Supreme Court, in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), established the test for peer-on-peer sexual harassment cases under Title IX. Following Davis, most courts have adapted that test for imposing liability for peer-based, disability-related harassment, requiring a plaintiff to show:

  • The student is an individual with a disability;
  • The student was harassed based on his disability;
  • The harassment “was sufficiently severe or pervasive" that it altered his education and created an abusive environment;
  • The school knew (had actual knowledge) of the harassment; and
  • The school was deliberately indifferent to the harassment. See Werth v. Board of Directors of the Public Schools of the City of Milwaukee, 472 F.Supp.2d 1113 (E.D. Wis. 2007).

The Eighth Circuit Court of Appeals follows a bad faith or gross misjudgment standard rather than one of deliberate indifference. See M.P. v. Indep. Sch. Dist. No. 721, 439 F.3d 865 (8th Cir. 2006), reh’g denied, 110 LRP 62763 (8th Cir. 2006).

Cases on Point

Harassment Based on Disability

For a violation of Section 504 or Title II of the ADA, the harassment must be because of the disability.

  • Dodson v. Cartwright Elem. Sch. Dist., 2016 WL 3437602, 67 IDELR 146 (D. Ariz. 2016). Noting that the parents of an IDEA-eligible student never connected their daughter's alleged harassment by peers to her disability, the district court held their complaints about the harassment were not protected activity under Section 504.
  • Doe v. Torrington Bd. of Educ., 179 F.Supp.3d 179 (D. Conn. 2016). A high school student with SLD could not pursue Section 504 or Title II claims because the student “did not sufficiently allege that anyone actually harassed, bullied, or assaulted him because of his disability or perceived disability, rather than some other reason, such as personal animus."
  • Dorsey ex rel. J.D. v. Pueblo Sch. Dist. 60, 140 F.Supp.3d 1102 (D. Colo. 2015). A student with hypoglycemia and asthma did not allege a connection between her disabilities and her bullying by peers, which included having her snacks stolen and being physically beaten.
  • R.S. by McClarnon v. Bedford Cmty. Sch. Dist., 109 F.Supp.3d 1060 (S.D. Iowa 2015). A high school student sufficiently linked bullying to his disability where his football teammates' alleged practice of calling him "idiot" and "moron" suggested that the harassment related to his learning disability.
  • Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F.Supp.3d 221 (E.D.N.Y. 2015). The fact that bullying occurs does not establish discriminatory animus. Parents failed to show a link between their son’s ADHD or learning disabilities and alleged harassment, which included hitting and threats to kill.
  • S. by Shihadeh v. Marple Newtown Sch. Dist., 82 F.Supp.3d 625 (E.D. Pa. 2015). Allegations that the mere presence of a particular classmate, who allegedly stared or leered, caused a 17-year-old girl to suffer significant anxiety were not enough to sustain disability harassment claims under Section 504. Parents’ failure to identify specific acts of bullying motivated by their daughter’s disability entitled the district to judgment.
  • Thomas v. Springfield School Committee, 59 F.Supp.3d 294 (D. Mass. 2014). To support a case of disability-based harassment under Section 504, the victim must be targeted because of his or her disabilities.  In the absence of evidence a student with a learning disability and cognitive impairments was sexually assaulted because of her disability, the sexual assault would not support a claim for disability-based harassment.
  • Chesapeake (VA) Pub. Schs., 113 LRP 5990 (OCR 2012). The hitting of a student was motivated by the color of the student’s clothes, not his intellectual disability.
  • Ann Arbor (MI) Pub. Schs., 56 IDELR 84 (OCR 2010). The district had no reason or evidence to link the alleged harassment of the student to the student’s autism.
  • Hemet (CA) Unified Sch. Dist., 54 IDELR 328 (OCR 2009). The fact a student and parent did not initially mention the student's disabilities or disability-based harassment when they complained of frequent name-calling on the playground did not excuse the distric’s inaction, given that it had reason to suspect the harassment was connected to the fifth-grader’s ADHD.
  • Toltec (AZ) Elem. Sch. Dist., 52 IDELR 22 (OCR 2008). Teasing incidents related to the student’s choice of clothes and language, not her disability.

Constructive or Actual Knowledge

OCR applies a “knew or should have known” standard with regard to the school’s knowledge of the harassment. Unlike this constructive knowledge standard, case law continues to require that a school employee with authority to remedy the situation have actual knowledge of the harassment.

Cases on Point

Actual Knowledge

To impose monetary damages on a school, courts require that a school employee with authority to take action have actual knowledge of the harassment.

  • Estate of Barnwell v. Watson, 880 F.3d 998 (8th Cir. 2018). A district can't be liable for disability-based harassment under Section 504 if it didn't know about it. A parent's generalized statements about the possibility of bullying are not enough to put a district on notice of disability-based harassment. Although the mother told the IEP team she was worried about bullying because of the student's past difficulties with peers, she did not describe any incidents of harassment or identify any students who were causing problems for her son. Those generalized concerns, without more, were not enough to alert the district to the student's bullying by his peers.
  • S. by Sisneros v. Oakland Unified Sch. Dist., 2015 WL 346347, 565 IDELR 234 (N.D. Cal. 2015). The parent of a student with a severe intellectual disability could pursue Section 504 claims against a school district that allegedly failed to respond to reports of bullying on the school bus. If the bus driver actually notified district officials about the bullying as the parent claimed, the district's failure to investigate the matter or take steps to protect the student could amount to disability discrimination.
  • Pantell v. Antioch Unified Sch. Dist., 2015 WL 757612, 115 LRP 7567 (N.D. Cal. 2015). Because the parent an elementary student with ED failed to show the superintendent had actual knowledge of the purported peer harassment, the district court dismissed the parent's claim of purported abuse, which included humiliation, the use of restraint, and the denial of food and bathroom privileges.
  • Visnovits v. White Pine County Sch. Dist., 2015 WL 1506299, 115 LRP 17196 (D. Nev. 2015). Absent evidence that a Nevada district knew she was being harassed on the basis of disability, a high school student with a visual impairment could not show that the district was deliberately indifferent to the alleged bullying. . Not only did the student here admit that she did not report past incidents of bullying, but she expressed doubt that her classmate knew about her disability. As such, the student could not demonstrate that the district knowingly allowed her classmate to harass her or that it failed to intervene. The U.S. District Court, District of Nevada granted the district's motion for judgment.
  • Williamston (MI) Cmty. Schs., 56 IDELR 22 (OCR 2010). The fact that a student with cognitive impairments never filed a written complaint against schoolmates who regularly called him “retard” and “moron” did not excuse a district’s failure to investigate those incidents.

Appropriate Officials

In Moore v. Chilton County Board of Education, 1 F. Supp. 3d 1281 (M.D. Ala. 2014), parents of a student with disabilities, who jumped to her death from an interstate overpass, failed to establish a claim for disability discrimination under the Americans with Disabilities Act or Section 504. The court found the evidence was insufficient to show appropriate school officials had actual knowledge of the harassment. In the absence of evidence the student’s teachers or bus driver had authority to take corrective measures in response to complaints of peer disability-related harassment, the court concluded the parents made “no cogent argument that these individuals qualify as appropriate persons.” The court noted the assistant principal, who may have possessed the requisite authority, presented affirmative evidence she had no knowledge of any bullying against the student and never received a complaint of peer-on-peer disability-based harassment or bullying from either a student, teacher, or the parents.

Severity of the Conduct

OCR also applies a lower standard in determining if the conduct rises to a level that effectively denies the student services or benefits provided by the school. The courts have generally required that the conduct be severe, persistent and objectively offensive. In the past OCR required the conduct be severe, persistent or pervasive. In its latest guidance, OCR simply refers to the conduct being “sufficiently serious.”

Although the Davis court concluded a one-time incident of severe peer harassment was not enough to support monetary damages against a district for violating a federal non-discrimination statute, OCR has suggested it is sufficient to trigger a school district’s duty to respond in an appropriate manner. In its 2010 letter, OCR indicated harassment does not have to include intent to harm, involve repeated incidents or be directed at a specific victim. See also Philadelphia (PA) Sch. Dist., 46 IDELR 169 (OCR 2006) (depending on the circumstances, one incident of harassment can create a hostile environment). But see Wright v. Carroll County Bd. of Educ., 2013 WL 4525309, 113 LRP 34730 (D. Md. 2013) (parents cannot use Section 504 or Title II to hold districts responsible for isolated incidents of bullying; although the conduct was serious, a single instance of peer harassment is not enough to show deliberate indifference); C.M. v. Pemberton Twp High Sch., 2017 WL 384274, 117 LRP 3841 (D.N.J. 2017) (allegations a New Jersey district failed to investigate two incidents of peer harassment were not enough to support the parent's Section 504 and Title II claims).

In Moore, the court also dismissed the parent’s Section 1983 substantive due process claim, finding the board had no constitutional duty to take steps to prevent a high school student’s peers from bullying her or to prevent her suicide. The court found the board’s failure to act was not enough to state a substantive due process violation, as required for a Section 1983 claim. Due process claims, based on both the special relationship and state-created danger theories, were also rejected by the court in Estate of Lance v. Lewisville Independent School Dist, 743 F.3d 982 (5th Cir. 2014). In this case, bullying and harassment were alleged as reasons a special needs student hanged himself in the school nurse’s bathroom. The court found no evidence that the school district knew the student’s suicide was imminent or that the school in any way affirmatively increased the chance of suicide.

Cases on Point

Severity of Conduct
  • M. v. Pemberton Twp High Sch., 2017 WL 384274, 117 LRP 3841 (D.N.J. 2017). Allegations that a New Jersey district failed to investigate two incidents of peer harassment against a high schooler with ADHD were not enough to support the parent's Section 504 and Title II claims. The humiliation that the student reportedly suffered after being tripped and bitten by schoolmates did not result in her exclusion. The parent’s failure to allege the student's exclusion from a district program, service, or activity barred her Section 504 claim.
  • Lewis v. Blue Springs Sch. Dist., 2017 WL 5011893, 71 IDELR 33 (W.D. Mo. 2017). Whether the district violated Section 504 will frequently turn on whether it investigated the alleged harassment in a timely manner and took appropriate steps to prevent it from recurring. When evidence suggested a district did not address persistent peer bullying that exacerbated a student's depression and led him to take his own life, the district faced charges that it prevented the student from participating in and benefitting from the district's programs and activities on the basis of disability in violation of Section 504.

Deliberate Indifference

Both Lance and Estate of Barnwell v. Watson, 44 F.Supp.3d 859 (E.D. Ark. 2014), address the school district’s response to reported incidents of student-on-student harassment of special-needs students. To avoid liability under Section 504, the school must respond reasonably to acts of known harassment, and cannot act with deliberate indifference. In Lance, the district’s investigation of altercations, punishment of student offenders, efforts to promote positive relationships between the student and other students, adoption of anti-bullying policies that met national standards, and provision of employee training on bullying and harassment overcame any claim of deliberate indifference.

Without deciding if the district had acted with deliberate indifference, the court in Barnwell denied the school district’s motion to dismiss, concluding the parents had “alleged sufficient factual matter to state a claim.” Those allegations included that the district knew the student had physical oddities including a pronounced accent relating to Asperger’s syndrome, the student had been bullied at his previous school and the student was having trouble getting to class on time due to other students blocking his passage. The student wrote his school counselor a letter stating that he wanted to leave school because he had no friends and that he couldn’t handle “being an outcast for four more years.” Despite this knowledge, the district did not develop a plan to investigate or address bullying during an IEP meeting and the student committed suicide five days later, after additional alleged harassment during those five days. The district court later granted summary judgment for the superintendent. On appeal in Estate of Barnwell v. Watson, 880 F.3d 998 (8th Cir. 2018), the court held that the bullying of the student who committed suicide did not rise to the level of actionable peer harassment and that the response by school officials was not clearly unreasonable in light of the limited information it had before the student’s death.

In Sutherlin v. Independent Sch. Dist, No. 40 of Nowata County, 960 F. Supp. 2d 1254 (N.D. Okla. 2013), the court found allegations the district disregarded more than two dozen reports of verbal and physical harassment of a student with Asperger’s syndrome, failing to investigate or take any action to prevent additional bullying, sufficiently pleaded facts outlining deliberate indifference to support a claim for disability harassment.

Cases on Point

Deliberate Indifference
  • B. v. Board of Educ. of Harford County, 819 F.3d 69 (4th Cir. 2017) The district was not indifferent to peer bullying where it investigated each reported incident and took steps to prevent future bullying.
  • Nevills ex rel. A.N. v. Mart Indep. Sch. Dist., 608 Fed. Appx. 217 (5th Cir. 2015). Evidence of a school’s efforts to investigate and prevent incidents of disability-based bullying was sufficient to defeat the parents' Section 504 and Title II claims. Here the principal documented her investigation of each reported incident of bullying, including the punishments administered. Those records, along with teacher training and schoolwide assemblies on bullying, showed the district was not deliberately indifferent to harassment.
  • M. by Marchese v. Dry Creek Joint Elem. Sch. Dist., 595 Fed. Appx. 698 (9th Cir. 2014). A school district did not violate Section 504 by failing to respond to multiple reports of disability-based peer harassment in PE. The district responded to five incidents over a six-month period with increasingly intensive measures.  The fact the measures were not fully effective did not equate to deliberate indifference.
  • Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014) The district, which investigated all reported incidents of peer harassment against a 9-year-old with disabilities and took appropriate disciplinary action against everyone involved, was not deliberately indifferent.
  • Shadie v. Hazleton Area Sch. Dist., 580 Fed. Appx. 67 (3rd 2014). Prompt investigation of reports a classroom aide mistreated a student with autism, meetings with parents and teachers, and transfer of the aide during the period of investigation defeated a claim of deliberate indifference.
  • Long v. Murray County Sch. Dist., 522 Fed. Appx. 576 (11th Cir. 2013). In a Section 504 action stemming from the suicide of an 11th-grader with Asperger syndrome who was subjected to disability-based, the parents could not establish a viable claim that the school’s response was clearly unreasonable bullying because the district swiftly addressed individual incidents of harassment and had reason to believe its remedial actions were working.
  • Doe v. Big Walnut Local Sch. Dist., 57 IDELR 74 (6th 2009). The school district did not act with deliberate indifference where it developed a safety plan to prevent further bullying of a student with cognitive impairments.
  • S. v. Eastern Kentucky University, 532 F.3d 445 (6th Cir. 2008), reh'g denied, 110 LRP 62749 (6th Cir. 2008). The fact that the school investigated all altercations between the students, conducted interviews with students, separated the offenders from the student, imposed discipline, provided training, and communicated with parents, indicated that it took affirmative steps to halt harassment, demonstrating it was not deliberately indifferent.
  • Bowe v. Eau Claire Area Sch. Dist., 2018 WL 791416, 118 LRP 5131 (W.D. Wis. 2018). The school investigated each reported incident of harassment against a teenager with Asperger syndrome and took some form of remedial action in response; therefore, it was not deliberately indifferent to peer bullying. Counseling is not an unreasonable response to peer bullying as long as the district keeps track of its effectiveness and is willing to take more serious remedial action if necessary.
  • P.T.C. by C.C. and T.C. v. Nelson County Sch. Dist., 2016 WL 3264200, 68 IDELR 19 (W.D. Ky. 2016). Noting that a Kentucky district's administrators and officials responded to each reported incident of peer harassment against a student with a mild intellectual disability, the District Court rejected allegations that the employees were deliberately indifferent to bullying.
  • W. v. Johnston County Board of Educ., 2014 WL 4771613 (E.D.N.C. 2014). A school’s response to an alleged sexual assault of a student with a disability in a restroom was not deliberately indifferent. The incident was promptly and thoroughly investigated, and the alleged perpetrator was transferred out of one class and prohibited from interaction with the alleged victim in another class in which both students were enrolled.
  • L. v. Leander Indep. Sch. Dist., 2013 WL 3822100, 62 IDELR 174 (W.D. Tex. 2013). The school’s attempts to put an end to occasional mistreatment of a legally blind child with autism belied his parents' claims that the district was aware that the student was continuously bullied, or that it neglected to take prompt remedial measures in response to ongoing harassment.
  • Sevier County (TN) Sch. Sys., 115 LRP 1470 (OCR 2014). By taking prompt action to separate a student with ADHD from his teacher after she allegedly harassed him on the basis of his disability--accusing him of using his disability as an excuse not to complete work—the school district ensured the student wouldn't be continually subjected to a hostile environment
  • Minidoka County (ID) Joint School District, 114 LRP 44541 (OCR 2014). OCR found the district dropped the ball when it failed to respond to disability-based name-calling after the parent repeatedly complained about students calling her daughter "retarded" and "idiot."
  • Los Feliz (CA) Charter Sch. for the Arts, 113 LRP 52559 (OCR 2013). Notice of harassment gives rise to a duty to investigate. Despite having notice of the harassment and the physical manifestations of an autistic student’s stress, the school failed to conduct any investigation and let each staff member respond to the allegations independently.

As with other areas of Section 504 compliance, training staff on disability-related harassment is crucial. Staff members must be able to identify potential harassment when they witness or hear about it. School employees may mistakenly believe name-calling isn’t serious enough to constitute disability harassment, but OCR takes the opposite position. While a court may not impose liability on a school for mere name-calling, OCR will investigate these claims and take enforcement action. OCR has stated that harassing conduct may take many forms, including verbal acts and name-calling, graphic and written statements; or other conduct that may be physically threatening, harmful, or humiliating. School personnel should be able to identify conduct that meets these standards, whether or not parents characterize their complaint as disability-based harassment.

Denial of FAPE Cases

Prior to the latest guidance, courts have recognized that bullying and harassment can result in a denial of the right to a free appropriate public education. See M.L. v. Federal Way School Dist., 394 F.3d 634 (9th Cir. 2005); Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194 (3rd Cir. 2004); D.A. v. Meridian Joint Sch. Dist. No. 2, 289 F.R.D. 614, 113 LRP 6930 (D. Idaho 2013). There have been a number of cases addressing the issue, with courts and hearing officers coming down on both sides of the issue.

Free Appropriate Public Education not Denied

  • S. v. District of Columbia, 2014 WL 4650885, 114 LRP 41194 (D.D.C. 2014)
  • M. v. Central Bucks School Dist., 992 F.Supp.2d 452 (E.D. Pa. 2014)
  • E. v. Boyerton Area Sch. Dist., 452 Fed. Appx. 172 (3rd Cir. 2011)
  • B. v. Waynesboro Area Sch. Dist., 2011 WL 718516, 56 IDELR 67 (M.D. Pa. 2011)
  • Corvallis Sch. Dist., 115 LRP 61 (SEA OR 2014).
  • Southmoreland Sch. Dist., 111 LRP 50995 (SEA PA 2011)
  • Harrisburg City Sch. Dist., 55 IDELR 149 (SEA PA 2010)

Free Appropriate Public Education Denied

  • Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194 (3rd 2004)
  • L. v. Federal Way School Dist., 394 F.3d 634 (9th Cir. 2005)
  • K v. New York City Department of Education, 779 F. Supp. 2d 289, 63 IDELR 256 (E.D.N.Y. 2014)
  • Marion County (FL) Pub. Schs., 67 IDELR 128 (OCR 2015)
  • Hillsborough County (FL) Public Schools, 115 LRP 57977 (OCR 2015)
  • Colton Joint Unified Sch. Dist., 117 LRP 52248 (SEA CA 2017).
  • In Re: Barnstable Pub. Schs., 111 LRP 48728 (SEA MA 2011)

In T.K v. New York City Department of Education, 779 F. Supp. 2d 289, 317 (E.D.N.Y. 2011), the court held,

A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities. The conduct does not need to be outrageous in order to be considered a deprivation of rights of a disabled student. It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.

The case returned to the court on the issue of tuition reimbursement in 2014. T.K v. New York City Department of Education, 32 F. Supp. 3d 405 (E.D.N.Y. 2014), aff’d, 810 F.3d 869 (2nd Cir. 2016). In this case, the court created affirmative obligations for school districts in developing IEP’s for children who are the targets of bullying. The court found the program offered by the school district did not provide a free appropriate public education, stating:

FIRST, where there is a legitimate concern that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law the IEP team is required to consider evidence of bullying in developing an appropriate Individual Education Program (“IEP”). The record shows that L.K.’s IEP team did not take evidence of bullying into account in developing her IEP for the 2008–09 school year. This failure prevented her parents from meaningful participation in the IEP’s development.

SECOND, where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP. No such program was developed for L.K.

THIRD, if a school district purports to address bullying in an IEP, it may not, as a matter of law, do so in abstract terms incomprehensible to lay parents, effectively preventing them from meaningful participation in developing the IEP and from comprehending that the issue was addressed. Language and explanations understandable to parents must be used in developing an anti-bullying program.

While this court’s conclusions may reflect best practice, it is questionable if other courts will require each student’s IEP or Section 504 plan to address bullying to this extent.

The Pennsylvania court in N.M. v. Central Bucks School Dist., 992 F.Supp.2d 452 (E.D. Pa. 2014), examining allegations the district’s inadequate response to bullying denied a student with PTSD and an anxiety disorder a free appropriate public education, reviewed the steps the district took to eliminate the culture of bullying and harassment in compliance with the OCR guidance in the October 2010 Dear Colleague Letter. Finding the district had been responsive to parental concerns, the court rejected the argument the school district denied a free appropriate public education in not convening the IEP team to discuss adding social, emotional or behavioral supports to the student’s program or placement. The court found the district did attempt to help the student—even though measures were not included in the IEP-—with his social problems related to bullying and that his most recent IEPs did provide emotional supports.

Simply addressing bullying in the IEP or Section 504 plan may not be sufficient. The school must also take steps to ensure those items are implemented. See Santa Monica-Malibu (CA) Unified School District, 55 IDELR 208 (OCR 2010)(although the district wrote specific items to address bullying into the student’s IEP, it failed to ensure those items were implemented until after the student was subjected to further harassment).

Physical injuries alone may be insufficient to establish bullying resulted in a denial of the right to a free appropriate public education. S.S. v. District of Columbia, 2014 WL 4650885 (D.D.C. 2014). Mere apprehension a student may face bullying is also insufficient, especially where the proposed placement has policies and procedures in place to address bullying. See J.E. ex rel J.E. v. Boyertown Area Sch. Dist., 834 F.Supp.2d 240 (E.D. Pa. 2011), aff’d, 452 Fed. Appx. 172, 2011 WL 5838479, (3rd Cir. 2011).

Resolving complaints in denial of free appropriate public education cases will likely require schools to train staff members on their obligations under Section 504. In Fort Worth (TX) Acad. of Fine Arts, 71 IDELR 108(OCR 2017), the school committed to changing how it handles reports of disability-based harassment in a resolution agreement with OCR. Under the agreement, the district promised to train staff members on their obligations to evaluate students for determining whether the effects of the bullying or harassing behavior changed the student's educational needs such that the 504 plan or IEP would require modifications.

Print Appendix A


Section 504 Handbook

Appendix A: School Compliance Coordinator

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

 

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

 

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

 

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

Print Appendix B-Forms


Section 504 Handbook

Appendix B: Forms

Notice of Student and Parent Rights under Section 504
SAMPLE Section 504 Due Process Procedures
Section 504 Referral Form
Parental Consent for Initial Evaluation
Notice of Meeting – Parental Request for Section 504 Evaluation
Section 504 Evaluation Committee Meeting Form
Section 504/ADA Student Services Plan Form
Transferring Student: 504 Evaluation Pending
Transferring Student: 504 Plan Alert
Section 504 Review of Services
SELF-EVALUATION FOR SECTION 504/ADA
Checklist for the 504 Determination of Eligibility & Services

Notice of Student and Parent Rights under Section 504

The following is a description of student and parent rights granted by federal law. The intent of the law is to keep you fully informed concerning decisions about your child and to inform you of your rights if you disagree with any of these decisions.

YOU HAVE THE RIGHT TO:

  • Have your child take part in, and receive benefits from public education programs without discrimination based on a disability.
  • Have the school advise you as to your rights under federal law.
  • Receive written notice with respect to identification, evaluation, or placement of your child.
  • Have your child receive a free appropriate public education. This includes the right to be educated with other students without disabilities to the maximum extent appropriate. It also includes the right to have the school make reasonable accommodations to allow your child an equal opportunity to participate in school and school-related activities.
  • Have your child educated in facilities and receive comparable services to those provided students without disabilities.
  • Have your child receive accommodations or services under Section 504 of the Rehabilitation Act of 1973 if he/she qualifies.
  • Have evaluation, educational, and placement decisions made based upon a variety of information sources, and by individuals who know your child, the evaluation data, and placement options.
  • Have transportation provided to a school placement setting at no greater cost to you than would be incurred if the student were placed in a program operated by the school.
  • Give your child an equal opportunity to participate in non-academic and extracurricular activities offered by the school.
  • Examine all records relating to decisions regarding your child’s identification, evaluation, educational program, and placement.
  • Obtain copies of educational records at a reasonable cost unless the fee would effectively deny you access to the records.
  • Receive a response from the school to reasonable requests for explanations and interpretations of your child’s records.
  • File a complaint with the Section 504 Compliance Coordinator, under the district complaint/grievance procedures.
  • Request mediation to settle disputes arising out of any decision about your child’s identification, evaluation, educational program or placement.
  • File a complaint with the Office for Civil Rights of the United States Department of Education.
  • Request an impartial due process hearing to settle disputes arising out of any decision about your child’s identification, evaluation, educational program or placement. You and your child may take part in the hearing and have an attorney represent you. You may appeal this decision to the board of education and to a court of competent jurisdiction.
  • Suffer no retaliation as a result of exercising your rights under these provisions.

The person at the school who is responsible for Section 504/ADA compliance is _____________________________, who may be contacted at ________________________________________________.

SAMPLE Section 504 Due Process Procedures

Parents may request an impartial due process to resolve differences involving the identification, evaluation, educational program or placement of a student with a disability under Section 504.   The proceedings will be presided over and decided by an impartial hearing officer, selected by the Board of Education.

Requests for a due process hearing must be submitted in writing to the Section 504 Compliance Coordinator,  _____________________________, who may be contacted at ________________.

Upon receipt of a request for hearing, the Section 504 Coordinator shall:

  • Secure the services of an impartial hearing officer, approved by the board.
  • Provide parents with notice of the following at least fifteen (15) days prior to the date set for the hearing:
  • A statement of the time and place where the hearing will be held.
  • A statement that relevant student records are available for examination.
  • A short and plain statement of the matters asserted.
  • A statement of the rights that will be afforded at the hearing including:
  • The right to be represented by counsel;
  • The right of the student and the parents to be present at the hearing;
  • The right to confront and cross-examine witnesses called by the school district at the hearing;
  • The right to present their own witnesses;
  • The right to have an orderly hearing; and
  • The right to a fair and impartial decision based on the evidence presented at the hearing.

The hearing officer will preside over the hearing, swear in witnesses, and determine whether the evidence presented should be admitted. The rules of evidence will not apply to these proceedings, but any evidence offered by either party should be relevant to the issues to be decided. The hearing shall be recorded. The recording of the Section 504 due process hearing shall be on file at the District office and will be available for review upon request to the parents and/or any of the involved parties.

The hearing officer’s decision will be reduced to writing and will include the date, the hearing officer’s findings of fact and conclusions of law. The decision will be delivered to the Superintendent and to the parent or guardian of the student within ten (10) days following completion of the hearing, which in no event shall be later than forty-five (45) days after receipt of the request for a hearing.

The decision of the hearing officer shall be binding on all parties concerned, subject to appeal to the board of education.

A parent dissatisfied with the result of the due process hearing may appeal the decision to the board of education. Notice of appeal, in writing, must be provided to the clerk of the board within ten (10) days after the date on the hearing officer’s decision. Within ten (10) days after receiving the notice, the board will set a time and place for the appeal hearing, which shall be held within 30 days after receipt of the notice of appeal. At the appeal hearing, the parent will be afforded the same rights as at the hearing before the impartial hearing officer. The board shall render a decision in the matter within ten (10) days after the close of the hearing. The decision of the board of education in this matter shall be final.

Section 504 Referral Form

Date:
Student:
School:
Date of Birth:
Teacher:
Phone:
Parents/Guardian:
Address:
Referred by:
Position:

1. Reason for referral:

2. Accommodations and interventions attempted (SIT plan):

3. Has the student ever been referred, evaluated and/or received services from special education?
❏ Yes ❏ No

Referral action:

Licensed Staff Member:
Date:

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Parental Consent for Initial Evaluation

School:
Date:
Student Name:
Date of Birth:
Age:
Grade:
Parent/Guardian:
Address:

Your child has been referred to the building Section 504 Coordinator for further evaluation to determine eligibility for accommodations/interventions under Section 504 of the Rehabilitation Act of 1973. The Section 504 Building team needs to evaluate your child in the following areas:

 

Your signed consent is required to complete this evaluation. The findings will be reported, recorded, filed and communicated in strict accordance with applicable district policies and state and federal law.

This assessment will be completed within thirty-five (35) school days unless an alternative timeline has been mutually agreed upon and documented. A copy of your Parent Rights under Section 504 of the Rehabilitation Act of 1973 will be provided to you.

Please Check a Line:
As a parent or guardian, I ❏ DO ❏ DO NOT (please check one) consent to this evaluation. I understand that my consent may be revoked at any time prior to the completion of this evaluation. Revocation of consent will have no impact on the parts of the evaluation which may be already completed.

Parent or Guardian
Signature(s):
Date:

Please return this form to the Central Office at the school.

Notice of Meeting – Parental Request for Section 504 Evaluation

Date:
Student Name:
School:

Dear

We received your request for a Section 504 evaluation for your child on MONTH DAY, YEAR.

The first step in considering your child’s eligibility for a Section 504 Plan is to have you meet with your child’s Student Intervention Team (SIT). At this meeting, we will review information in your child’s education records and any documents you may have that support your concerns. With your help, we will decide if we need additional evaluation information or if we can make a determination of your child’s eligibility based on the information provided by you and school personnel.

If additional information is needed, we will seek your consent for evaluation, complete the evaluation and hold another meeting to determine eligibility.

If we can determine your child is eligible based on the information considered at the meeting, the team will recommend aids, services and accommodations that will address your child’s individual needs.

The meeting is scheduled for:

Date:
Time:
Location:

Your support and participation in working with us as a team is essential for your child’s success. Please contact me to confirm your attendance at this meeting or if you have any questions.

Sincerely,
Building 504 Coordinator

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Section 504 Evaluation Committee Meeting Form

Student Name:
Date of Birth:
School:
Grade:
Parent/Guardian:
Phone:
Date:
Time:
Reason for referral:
Evaluation data and comments (Complete all that were reviewed.)
Attendance:
Academic Records:
Medical Records:
Behavior:
Teacher Input:
Parental Input:

Eligibility:
It is determined that the student listed above has a disabling condition that exists under 504 of the Rehabilitation Act of 1973 and this condition substantially limits a major life activity.
❏ Yes ❏ No

504 Disability:

The written notice of parental rights was given:
❏ Yes ❏ No

Committee Members:

Section 504/ADA Student Services Plan Form

Date:
Student:
School:
Date of Birth:
Participants:

Part 1: Justification for Services

The student has been determined to be a student with a disability under the Section 504 guidelines?
❏ Yes ❏ No

Briefly document the basis for determining the disability:

Area of Difficulty:
Accommodations:

Area of Difficulty:
Accommodations:

Area of Difficulty:
Accommodations:

Area of Difficulty:
Accommodations:

Do parents have written notice of parental rights?
❏ Yes ❏ No

Committee Members:

Transferring Student: 504 Evaluation Pending

To: 504 Coordinator at _____ School

From: 504 Coordinator at_____ School

Date:

RE: Transferring Student – 504 Evaluation Pending

This notice is to inform you that the following student, who is transferring to your school, needs to be evaluated to see if s/he is eligible for services or accommodations under Section 504:

Name of Student:
Date of Birth:
Pupil ID No.:

Evaluation is pending because:
❏ The student’s parent requested a Section 504 plan
❏ Our staff suspects the student may be eligible and has referred the student for evaluation

Evaluation has been recommended for the following reasons:

A copy of the student referral form is in the student’s cumulative file and attached to this notice. If you need information from any of our staff in completing the evaluation, please let me know.

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Transferring Student: 504 Plan Alert

To: 504 Coordinator at _____ School

From: 504 Coordinator at_____ School

Date:

RE: Transferring Student with a 504 Plan

This notice is to inform you that the following student, who is transferring to your school, has a 504 Plan:

Name of Student:
Date of Birth:
Pupil ID No.:

A copy of the 504 Plan is (check all that apply):

❏ In the student’s cumulative file.
❏ Attached to this notice.
❏ Available on-line in the password protected student database system.

Comments:

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Section 504 Review of Services

Date:
Student:

Purpose of the Meeting: It is necessary to periodically review the student’s progress under Section 504 services and make recommendations to continue, modify or terminate the program(s). (504 plan should be reviewed once each year)

Discussion of Progress

Recommendation

  • Continue present services with no changes.
  • Modify the present program (see attached).
  • Exit from program based upon the following evaluation results.

Discussion of Recommendations

The following members of the Section 504 Committee agree with the recommendations.

SELF-EVALUATION FOR SECTION 504/ADA

Besides the physical evaluation of the school district, a group of interested persons, including persons with disabilities and administration will meet periodically to ensure that the programs and policies of USD #441 do not discriminate. The group will examine the following:

A. PROCEDURAL REQUIREMENTS

Prior to the beginning of each school year does your school district advise students, parents, employees, and the general public that all educational opportunities will be offered without regard to disability?
❏ Yes ❏ No

Is this notice available to persons who are visually or hearing impaired?
❏ Yes ❏ No

Does your school district comply with the following notice requirements?

Notice must be given to applicants for:

Admission and employment, elementary and secondary school students and their parents:
❏ Yes ❏ No

Employees, sources of referrals for applicants:
❏ Yes ❏ No

The notice of the policy of nondiscrimination must appear in bulletins, catalogs, application forms and other materials for both students and employees:
❏ Yes ❏ No

Coordinator:

Has your school district designated an employee(s) to coordinate the recipient’s compliance activities and to investigate complaints alleging noncompliance with the provisions of Section 504/ADA?
❏ Yes ❏ No

Grievance Procedure

Has your school district adopted a grievance procedure for the prompt and equitable resolution of complaints of discrimination by students and employees?
❏ Yes ❏ No

Has your school district adopted a due process hearing procedure for the resolution of complaints?
❏ Yes ❏ No

Self-Evaluation

Has your school district conducted a self-evaluation of your policies and practices in consultation with persons with disabilities or organizations representing persons with disabilities to determine whether they discriminate on the basis of disability?
❏ Yes ❏ No

Continued evaluation should be performed to assure compliance.

B. COUNSELING

Are counseling materials and activities free from discrimination on the basis of disability?
❏ Yes ❏ No

Are student program selections, career and employment selections, and promotion and recruitment efforts free from discrimination on the basis of disability?
❏ Yes ❏ No

Are counseling practices free from inducing students to enroll in programs based on their disability?
❏ Yes ❏ No

Are different testing or other materials for appraising or counseling students used on the basis of a student’s disability?
❏ Yes ❏ No

Are counselors communicating effectively with students who are hearing impaired?
❏ Yes ❏ No

Are promotional materials available to the visually impaired?
❏ Yes ❏ No

C. EQUAL OPPORTUNITY

Are students with disabilities placed in general education environments to the maximum extent appropriate to the needs of the student?
❏ Yes ❏ No

Are proper evaluation and due process procedures followed before a student with a disability is provided special education or related services?
❏ Yes ❏ No

Have all students been given an equal opportunity to participate in nonacademic and extra-curricular activities offered by the school?
❏ Yes ❏ No

D. RECORDS

Are records of decisions regarding a student’s identification, evaluation, educational program and placement available to parents or guardians for examination?
❏ Yes ❏ No

Are copies of educational records available at a reasonable cost to parents or guardians?
❏ Yes ❏ No

Are responses from the school regarding requests for explanations and interpretations of the student’s records made promptly to parents or guardians?
❏ Yes ❏ No

E. EMPLOYMENT

Are all of your school’s employment practices free from discrimination against employees or applicants for employment on the basis of disability?
❏ Yes ❏ No

Are all recruitment sources notified of the school’s policy of nondiscrimination in employment on the basis of disability?
❏ Yes ❏ No

Are all persons treated equally with respect to

Processing applications for employment:
❏ Yes ❏ No

Hiring, upgrading, promotion tenure, demotion, transfer, lay-off, termination, right of returning from lay-off and rehiring:
❏ Yes ❏ No

Rates of pay or any other form of compensation:
❏ Yes ❏ No

Job assignments, job classifications, organizational structures, position description, lines of progression, and seniority lists:
❏ Yes ❏ No

Leave of absence, sick leave, or any other leave
❏ Yes ❏ No

Fringe benefits:
❏ Yes ❏ No

Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leave of absence to pursue training
❏ Yes ❏ No

Employer-sponsored activities:
❏ Yes ❏ No

Do employment tests or other selection criteria disproportionately exclude a particular class of persons on the basis of disability?
❏ Yes ❏ No

Checklist for the 504 Determination of Eligibility & Services

❏   1. Teacher/staff member becomes aware of the student’s problem.
❏   2. Teacher attempts accommodations/interventions.
❏   3. Problem continues.
❏   4. Teacher refers to the student to the SIT (Student Improvement Team).
❏   5. Team creates a plan for accommodations/interventions.
❏   6. Implementation of the SIT plan.
❏   7. SIT reviews the plan.

(If the plan is working, the process ends here)

❏   8. Team troubleshoots or writes a new plan.
❏   9. SIT reviews the 2nd plan.
❏  10. SIT refers student for evaluation.

(Process may begin here if a parent requests an evaluation)

❏  11. Parent notified of proposed evaluation.
❏  12. Evaluation meeting scheduled. Parent notified of rights. Copies of documents from parents that provide information to support the student’s eligibility requested.

❏  13. Student evaluated.
❏  14. Qualification determined.

(If it is determined that the student does not qualify for a 504 Plan the SIT team continues to work to support the student and the process ends here.)

❏  15. Placement determined and parent given notice.
❏  16. Student’s 504 Plan is implemented.

Print Appendix C Section 504 & IDEA: A Comparison


Section 504 Handbook

Appendix C Section 504 & IDEA: A Comparison

NAME OF LAW
TYPE OF LAW
PURPOSE
FUNDING
ENFORCEMENT
COVERAGE
DEFINITION OF FREE APPROPRIATE PUBLIC EDUCATION
EVALUATION
WHO INITIATES AN INITIAL EVALUATION
NOTICE TO PARENT--EVALUATION
PARENTAL CONSENT--EVALUATION
TIMELINE FOR EVALUATION
EVALUATION REQUIREMENTS
SCREENING IS NOT EVALUATION
EVALUATION REPORT
INDEPENDENT EDUCATIONAL EVALUATION
REEVALUATION
PARENTAL CONSENT REEVALUATION
ELIGIBILITY & PLACEMENT
SPECIAL RULES FOR ELIGIBILITY DETERMINATION
PARENTAL CONSENT SERVICES
THE DOCUMENT
CONTENTS OF THE DOCUMENT
WHO DEVELOPS THE PLAN
EXCUSAL FROM MEETINGS TO DEVELOP THE PLAN
COPY OF THE PLAN TO PARENT
ACCESSIBILITY OF THE PLAN TO TEACHERS AND OTHERS
PLACEMENT
WHO MAKES PLACEMENT DECISIONS
PROGRAM REVIEW
GRIEVANCE PROCEDURE
COMPLAINT PROCEDURES
PROCEDURAL SAFEGUARDS
NOTICE
MEDIATION
DUE PROCESS
EXHAUSTION OF REMEDIES
NONACADEMIC AND EXTRA-CURRICULAR SERVICES AND ACTIVITIES
COUNSELING SERVICES
PHYSICAL EDUCATION AND ATHLETICS

NAME OF LAW

Section 504

Section 504 of the Rehabilitation Act of 1973, 29 USC §794

IDEA

Individuals with Disabilities Education Act, 20 USC §1401, et seq.

TYPE OF LAW

Section 504

A civil rights, anti-discrimination law

IDEA

An education program

PURPOSE

Section 504

To eliminate discrimination against individuals on the basis of disability in programs that receive federal funds

IDEA

To ensure that a free appropriate public education and procedural protections are provided to eligible students with disabilities

FUNDING

Section 504

No funding is provided; failure to comply can result in loss of federal funding for programs

IDEA

Some federal funds are provided to help states and schools cover the excess cost of educating students with disabilities in compliance with IDEA mandates. Appropriations have never reached the authorized level of 40 percent of excess cost.

ENFORCEMENT

Section 504

Enforced by the Office for Civil Rights of the United States Department of Education

IDEA

Administered by the Offices of Special Education Programs within the Office of Special Education and Rehabilitative Services of the United States Department of Education and the Kansas State Department of Education.

COVERAGE

Section 504

Protects an individual with a disability, i.e., one with a physical or mental impairment that substantially limits a major life activity or major bodily function.

Also protects an individual with a record of being disabled or who is regarded as disabled from discrimination based on that record or perception. 34 CFR 104.3

IDEA

Eligible children with disabilities are those evaluated as falling within one of the following categories of disability: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, another health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. For children between the ages of three and nine, a child with a disability can also include a child who is experiencing developmental delays. 34 CFR 300.8

DEFINITION OF FREE APPROPRIATE PUBLIC EDUCATION

Section 504

Schools must provide a free appropriate public education to each qualified handicapped person, regardless of the nature or severity of the person’s handicap.

Appropriate education is defined as the provision of regular or special education and related aids and services that are:

  • Designed to meet individual educational needs of pupils with disabilities as adequately as the needs of nondisabled persons are met and
  • Developed in compliance with the regulations governing evaluation, academic setting and placement. 34 CFR 104.33(b)

A free education is the provision of educational and related services without cost to the student or to his or her parents, except for those fees that are imposed on non-disabled children or their parents. 34 CFR §104.33(c

IDEA

Schools must provide a free appropriate public education to any eligible student with a disability, including students who are suspended or expelled from school.

Free appropriate public education or FAPE means special education and related services that:

  • Are provided at public expense, under public supervision and direction, and without charge;
  • Meet the standards of the Kansas State Department of Education;
  • Include an appropriate preschool, elementary school, or secondary school education in the State involved; and
  • Are provided in conformity with an individualized education program (IEP). 34 CFR § 300.17

EVALUATION

Section 504

Requires evaluation prior to an initial 504 placement in regular or special education and before any subsequent significant change in placement. 34 CFR §104.35

IDEA

Requires a comprehensive, individualized evaluation in all areas of suspected disability prior to initial placement of a child in special education services. 34 CFR §300.301.

WHO INITIATES AN INITIAL EVALUATION

Section 504

Either a parent or school personnel may initiate a request for an initial evaluation to determine if the child is a child with a disability.

IDEA

Either a parent of a child or school personnel may initiate a request for an initial evaluation to determine if the child is a child with a disability

NOTICE TO PARENT--Evaluation

Section 504

The Section 504 procedural safeguards must include notice to parents with respect to actions involving the identification, evaluation, or educational placement of Section 504 students. 34 CFR §104.36

IDEA

Schools must provide notice to the parents of a child with a disability that describes any evaluation procedures the agency proposes to conduct. 34 CFR §300.503

PARENTAL CONSENT-- Evaluation

Section 504

Although there is no statutory or regulatory requirement, OCR interprets the regulations to require parental consent to initial evaluation.

IDEA

Informed parental consent to initial evaluation is required. A school may, but is not required, to seek a due process hearing if parents refuse to consent. § 300.300

TIMELINE FOR EVALUATION

Section 504

No specific timeline in the regulations. Must be completed in a reasonable time.

IDEA

Must be conducted within 60 days of receiving parental consent for the evaluation. CFR §300.301(c).

EVALUATION REQUIREMENTS

Section 504

In interpreting evaluation data a school must:

  • Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.
  • Establish procedures to ensure that information obtained from all such sources is documented and carefully considered.

Evaluation procedures must ensure tests and evaluation materials are:

  • Validated for the specific purpose for which they are used;
  • Administered by trained personnel in conformance with the instructions provided by their producer;
  • Include tests tailored to assess specific areas of educational need, not merely IQ; and
  • Selected and administered to accurately reflect the student’s aptitude or achievement level, not the effect of the impairment. 34 CFR 104.35
IDEA

In conducting the evaluation, the school must:

  • Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child.
  • Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

Each school must ensure assessments and other evaluation materials are:

  • Used for the purposes for which the assessments or measures are valid and reliable;
  • Administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer;
  • Include those tailored to assess specific areas of educational need and not merely IQ;
  • Selected and administered to accurately reflect the student’s aptitude or achievement level, not the effect of the impairment.
  • Are provided and administered in the child’s native language or other mode of communication;
  • Are selected and administered so as not to be discriminatory on a racial or cultural basis.

The child must be assessed in all areas related to the suspected disability. The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs and should not use any single measure or assessment as the sole criterion for determining eligibility or educational needs. 34 CFR 300.306

SCREENING IS NOT EVALUATION

Section 504

No provision.

IDEA

Screening for instructional purposes—i.e., to determine appropriate instructional strategies for curriculum implementation, is not evaluation for eligibility purposes. 34 CFR §300.302

EVALUATION REPORT

Section 504

No provision.

IDEA

A copy of the evaluation report and the documentation of determination of eligibility must be provided to the parent, at no cost to the parent. 34 CFR §300.306(a)(2).

INDEPENDENT EDUCATIONAL EVALUATION

Section 504

No provision.

IDEA

Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the school responsible for the education of the child in question. Upon request for an independent educational evaluation, schools must provide parents with information about where an independent educational evaluation may be obtained, and the criteria applicable for independent educational evaluations. 34 CFR 300.502.

REEVALUATION

Section 504

Requires a school to establish procedures for periodic reevaluation of students who have been provided special education or related services. A reevaluation procedure consistent with the IDEA is one means of meeting this requirement. 34 CFR 104.35(d).

Under Section 504, reevaluation is required prior to a significant change of placement. 34 CFR §104.35(a).

IDEA

Reevaluation under IDEA:

  • Must occur if the school determines that the educational or related services needs of the child warrant a reevaluation;
  • Must occur if a child’s parent or teacher requests a reevaluation.
  • May occur not more than once a year, unless the parent and the public agency agree otherwise;
  • Must occur at least once every 3 years, unless the parent and the public agency agree reevaluation is unnecessary. 34 CFR § 300.303

PARENTAL CONSENT REEVALUATION

Section 504

Although there is no statutory or regulatory requirement, OCR interprets the regulations to require parental consent.

IDEA

School must obtain informed parental consent prior to conducting any reevaluation of a child with a disability. 34 CFR § 300.300

ELIGIBILITY & PLACEMENT

Section 504

In interpreting evaluation data and in making placement decisions, the school must:

  • Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior,
  • Establish procedures to ensure that information obtained from all such sources is documented and carefully considered,
  • Ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and
  • Ensure that the placement decision is made in conformity with 34 CFR § 104.34.
IDEA

Upon completion of the administration of assessments and other evaluation measures:

  • A group of qualified professionals and the parent of the child determines whether the child is a child with a disability, . . . and the educational needs of the child;
  • In interpreting evaluation data for the purpose of determining if a child is a child with a disability and the educational needs of the child, each school district must:
    • Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and
    • Ensure that information obtained from all of these sources is documented and carefully considered.

If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child. 34 CFR §300.306(c).

SPECIAL RULES FOR ELIGIBILITY DETERMINATION

Section 504

No provision.

IDEA

A child must not be determined to be a child with a disability under this part—

(1) If the determinant factor for that determination is—

  • Lack of appropriate instruction in reading, including the essential components of reading instruction;
  • Lack of appropriate instruction in math; or
  • Limited English proficiency.

(2) If the child does not otherwise meet the eligibility criteria. 34 CFR 300.306(b).

PARENTAL CONSENT SERVICES

Section 504

Although there is no statutory or regulatory requirement, OCR interprets the regulations to require parental consent to provision of services.

IDEA

School must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. 34 CFR 300.300.

THE DOCUMENT

Section 504

Section 504 regulations do not require that accommodations, modifications aids or services be documented, but schools are well-advised to ensure the aids, services, accommodations or modifications they provide be fully documented. Section 504 regulations do not prescribe the form of a 504 plan.

IDEA

Services under IDEA must be documented in an individualized education program or IEP which is defined as “a written statement for each child with a disability that is developed, reviewed, and revised in a meeting in accordance with” IDEA procedures and that contains the required components. 34 CFR 300.320(a)

CONTENTS OF THE DOCUMENT

Section 504

Section 504 regulations do not prescribe the contents of a 504 plan.

Section 504 plans may be in any format, and be given any name, so long as they are developed through the procedures required by Section 504 regulations and parents are provided with notice of the parental rights and procedural safeguards.

IDEA

The IEP must contain:

  • A statement of the child’s present levels of academic achievement and functional performance;
  • A statement of measurable annual goals, including academic and functional goals;
  • A description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports progress will be provided;
  • A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child and a statement of the program modifications or supports for school personnel that will be provided to enable the child to advance toward attaining the goals, to make progress in the general education curriculum;
  • An explanation of the extent, if any, to which the child will not participate with peers in the regular class and activities;
  • A statement of any individual appropriate accommodations needed for State and districtwide assessments; and

The projected date for the beginning of the services and modifications, and the anticipated frequency, location, and duration of those services and modifications. 34 CFR 300.320(a)

Additional Provisions:

  • Transition services must be included beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP team. 34 CFR 300.320(b)
  • Not later than one year before the child reaches the age of majority, a statement indicating the child has been informed of the child’s rights under Part B that will transfer to the child on reaching the age of majority. 34 CFR §300.320 (c).

WHO DEVELOPS THE PLAN

Section 504

In interpreting evaluation data and in making eligibility or placement decisions under Section 504, schools must “ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” 34 CFR §104.35(c).

IDEA

The IEP Team for each child with a disability must include:

  • The parents of the child;
  • Not less than one regular education teacher of the child;
  • Not less than one special education teacher or provider of the child;
  • A representative of the school who is qualified to provide or supervise special education and is knowledgeable about the general education curriculum and the availability of resources of the school;
  • An individual who can interpret the instructional implications of evaluation results;
  • At the discretion of the parent or the agency, other individuals who have knowledge or special expertise (as determined by the party inviting the individual) regarding the child, including related services personnel as appropriate; and
  • Whenever appropriate, the child with a disability. 34 CFR 300.321(a)
  • Representatives of transition agencies and the student must be invited to the IEP meeting when the purpose is to discuss transition services. 34 CFR 300.321(b). For students previously served under Part C, a representative of the Part C agency must be included in the initial IEP meeting. 34 CFR §300.321(f).

EXCUSAL FROM MEETINGS TO DEVELOP THE PLAN

Section 504

No provision.

IDEA

If the parent and school agree, in writing, members of the IEP team may be excused from attending some IEP meetings, in whole or in part. Proper procedures for excusal must be followed. 34 CFR §300.321(e).

COPY OF THE PLAN TO PARENT

Section 504

No provision, but it may be prudent to provide a copy of the Section 504 plan to the parent.

IDEA

The school must give the parent a copy of the child’s IEP at no cost to the parent. 34 CFR §300.322(f).

ACCESSIBILITY OF THE PLAN TO TEACHERS AND OTHERS

Section 504

No provision, but OCR has found school districts violated Section 504 by failing to inform or train service providers of the required accommodations, aids, services or modifications under a Section 504 plan. Responsibilities under a Section 504 plan should be clearly communicated to those responsible for implementation.

IDEA

Each school district must ensure:

  • The child’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and
  • Each teacher and provider is informed of his or her specific responsibilities related to implementing the child’s IEP and the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP. 34 CFR 300.323(d).

PLACEMENT

Section 504

A school district shall educate, or shall provide for the education of, each student with a disability in its jurisdiction with nondisabled students to the maximum extent appropriate to the needs of the student with a disability. Schools must place a student with a disability in the regular educational environment unless it is demonstrated by the school that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient places a person in a setting other than the regular educational environment, it must take into account the proximity of the alternate setting to the person's home 34 CFR §104.34.

IDEA

Each public agency must ensure:

  • To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
  • Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR 300.114

WHO MAKES PLACEMENT DECISIONS

Section 504

In making placement decisions under Section 504, schools must “ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” 34 CFR §104.35(c).

IDEA

Consistent with §300.501(c), each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child. 34 CFR § 300.327

PROGRAM REVIEW

Section 504

No annual review requirement.

IDEA

IEPs must be reviewed annually, or more frequently if appropriate. The review should determine whether the annual goals for the child are being achieved. The IEP should be revised to address :

  • Any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate;
  • The results of any reevaluation;
  • Information about the child provided to, or by, the parents;
  • The child’s anticipated needs; or
  • Other matters. 34 CFR § 300.324(b)

GRIEVANCE PROCEDURE

Section 504

A school that employs fifteen or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part. 34 CFR §104.7(b).

IDEA

Not required by IDEA

COMPLAINT PROCEDURES

Section 504

Complaints of discrimination can be filed with the Office for Civil Rights of the U.S. Department of Education.

IDEA

Complaints can be filed with the Kansas State Department of Education. 34 CFR §300.151 – §300.153

PROCEDURAL SAFEGUARDS

Section 504

A school district shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of a disability, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement. 34 CFR §104.36.

IDEA

A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents:

  • Upon initial referral or parent request for evaluation;
  • Upon receipt of the first State complaint or the first due process complaint under in a school year;
  • In accordance with the discipline procedures;
  • Upon request by a parent. 34 CFR §300.504(a)

The procedural safeguards notice must include a full explanation of all of the procedural safeguards relating to:

  • Independent educational evaluations;
  • Prior written notice;
  • Parental consent;
  • Access to education records;
  • Opportunity to present and resolve complaints through the due process complaint and State complaint procedures;
  • The availability of mediation;
  • The child’s placement during the pendency of any due process complaint;
  • Procedures for students who are subject to placement in an interim alternative educational setting;
  • Requirements for unilateral placement by parents of children in private schools at public expense;
  • Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;
  • State-level appeals;
  • Civil actions, including the time period in which to file those actions; and
  • Attorneys’ 34 CFR §300.504(c)

NOTICE

Section 504

A school district shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of a disability, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, 34 CFR §104.36

Parents should be given written notice of the school’s request to evaluate the child, the meeting to determine the child’s eligibility, and of the meeting to determine the child’s placement, including the services, aids, accommodations or modifications that will be provided for the child.

Parents should also be given notice of their rights under Section 504 on an annual basis.

IDEA

Written notice must be given to the parents of a child with a disability a reasonable time before the public agency:

  • Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
  • Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. 34 CFR 300.503(a)

The notice must include:

  • A description of the action proposed or refused by the agency;
  • An explanation of why the agency proposes or refuses to take the action;
  • A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
  • A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
  • Sources for parents to contact to obtain assistance in understanding the provisions of this part;
  • A description of other options that the IEP Team considered and the reasons why those options were rejected; and
  • A description of other factors relevant to the agency’s proposal or refusal. 34 CFR §300.503(b)

The notice must be in a language or mode of communication the parent understands unless it is clearly not feasible to do so. 34 CFR §300.503(c)

MEDIATION

Section 504

Not required by law; can be voluntarily used by the parties.

IDEA

Each school district must ensure that procedures are established and implemented to allow parties to disputes to resolve disputes through a mediation process. The process must be voluntary and cannot delay the right to due process. KSDE maintains a list of qualified mediators, and bears the cost of mediation. If a dispute is resolved through mediation, the agreement must be reduced to writing. Mediation discussions are confidential and cannot be used against a party in litigation. 34 CFR §300.506

DUE PROCESS

Section 504

A school district shall establish and implement,  . . . , a system of procedural safeguards that includes  . . . , an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement. 34 CFR §104.36.

IDEA

A parent or a public agency may file a due process complaint relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child. The due process complaint must allege a violation that occurred not more than two years before the date the filer of the complaint knew or should have known about the alleged action that forms the basis of the due process complaint. Either party must provide a copy of the complaint to the other party. The filer of the complaint must provide a copy of the complaint to KSDE as well. 34 CFR § 300.507(a)

The due process complaint must include—

  • The name of the child;
  • The address of the residence of the child;
  • The name of the school the child is attending;
  • A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and
  • A proposed resolution of the problem to the extent known and available to the party at the time.

Additional information is required if the student is homeless. 34 CFR §300.507(b)

The sufficiency of the complaint may be challenged. The hearing officer determines the validity of the challenge. Amendments to the complaint, prior to the beginning of the hearing, are allowed in some circumstances. 34 CFR §300.507 (d)

The party receiving a due process complaint must, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint. §300.507(f)

EXHAUSTION OF REMEDIES

Section 504

The filing of an OCR complaint or a grievance under the school’s internal grievance procedures is not a prerequisite to bringing a lawsuit in court under Section 504.

Courts have required exhaustion of IDEA remedies for education-related matters, but have not required exhaustion for non-educational matters.

Courts have applied the same exceptions to administrative exhaustion recognized under IDEA for education-related matters under Section 504.

IDEA

Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under IDEA due process and appeal procedures must be exhausted to the same extent as would be required had the action been brought under section 615 of the Act. 34 CFR §300.516(e)

Exhaustion is generally required unless:

  • Use of IDEA’s administrative procedures cannot redress the injury and would be futile;
  • The case involves widespread, systemic violations of IDEA;
  • The hearing officer does not have the authority to award the requested relief;
  • Immediate access to the courts is necessary to avoid serious injury and irreparable harm;
  • The issue is one of law with no factual dispute;
  • Enforcement of a settlement agreement.

NONACADEMIC AND EXTRA-CURRICULAR SERVICES AND ACTIVITIES

Section 504

Schools shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford students with disabilities an equal opportunity for participation in such services and activities.

Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment. 34 CFR 104.37(a).

IDEA

Each school district must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities equal opportunity for participation in those services and activities.

Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available. 34 CFR §300.107

COUNSELING SERVICES

Section 504

Schools that provide personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services without discrimination on the basis of disability. The recipient shall ensure qualified students with disabilities are not counseled toward more restrictive career objectives than are nondisabled students with similar interests and abilities. 34 CFR 104.37(b).

IDEA

Nonacademic and extracurricular services and activities may include counseling services. 34 CFR §300.107

PHYSICAL EDUCATION AND ATHLETICS

Section 504

In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a school district may not discriminate on the basis of disability. A school that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified students with disabilities an equal opportunity for participation. A school district may offer to students with disabilities physical education and athletic activities that are separate or different from those offered to nondisabled students only if separation or differentiation is consistent with the requirements of § 104.34 and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different. 34 CFR 104.37(c).

IDEA

Physical education services, specially designed if necessary, must be made available to every child with a disability receiving FAPE, unless the school district enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless:

  • The child is enrolled full time in a separate facility; or
  • The child needs specially designed physical education, as prescribed in the child’s IEP.

If specially designed physical education is prescribed in a child’s IEP, the school must provide the services directly or make arrangements for those services to be provided through other public or private programs.

If the child is enrolled in a separate facility, the school district must ensure that the child receives appropriate physical education services. 34 CFR §300.108

Print Appendix D The Laws


Section 504 Handbook

Appendix D The Laws

SUBCHAPTER V - RIGHTS AND ADVOCACY

Sec. 794. Nondiscrimination under Federal grants and programs

(a)   Promulgation of rules and regulations

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

(b) “Program or activity” defined

For the purposes of this section, the term "program or activity” means all of the operations of

        (2)

(A) a college, university, or other postsecondary institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 7801 of title 20), system of vocational education, or other school system;

* * * * *

(d) Standards used in determining violation of section

The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111, et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment.

The following definitions in the Rehabilitation Act of 1973 apply to Section 504 of that Act, which is codified at 29 USC Section 794, contained in Subchapter V of the law:

29 USC Sec. 705. Definitions

For the purposes of this chapter:

(9) Disability

The term “disability” means:

(A) Except as otherwise provided in subparagraph (B), a physical or mental impairment that constitutes or results in a substantial impediment to employment; or

(B) For purposes of sections 701, 711, and 712 of this title, and subchapters II, IV, V, and VII of this chapter, the meaning given it in section 12102 of title 42. [The Americans with Disabilities Amendments Act]

(10) Drug and illegal use of drugs

(A) Drug

The term “drug” means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

(B) Illegal use of drugs

The term “illegal use of drugs” means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

(20) Individual with a disability

(A) In general

Except as otherwise provided in subparagraph (B), the term “individual with a disability” means any individual who—

(i) has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and

(ii) can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to subchapter I, III, or VI of this chapter.

(B)  Certain programs; limitations on major life activities

Subject to subparagraphs (C), (D), (E), and (F), the term “individual with a disability” means, for purposes of sections 701, 711, and 712 of this title, and subchapters II, IV, V, and VII of this chapter, any person who has a disability as defined in section12102 of title 42.

(C)  Rights and advocacy provisions

(i) In general; exclusion of individuals engaging in drug use For purposes of subchapter V of this chapter, the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.

(ii) Exception for individuals no longer engaging in drug use nothing in clause (i) shall be construed to exclude as an individual with a disability an individual who:

(I) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(II) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(III) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in subclause (I) or (II) is no longer engaging in the illegal use of drugs.

(iii) Exclusion for certain services notwithstanding clause (i), for purposes of programs and activities providing health services and services provided under subchapters I, II, and III of this chapter, an individual shall not be excluded from the benefits of such programs or activities on the basis of his or her current illegal use of drugs if he or she is otherwise entitled to such services.

(iv) Disciplinary action for purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34, Code of Federal Regulations (or any corresponding similar regulation or ruling) shall not apply to such disciplinary actions.

(v) Employment; exclusion of alcoholics for purposes of sections 793 and 794 of this title as such sections relate to employment, the term “individual with a disability” does not include any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others.

(D)  Employment; exclusion of individuals with certain diseases or infections

For the purposes of sections 793 and 794 of this title, as such sections relate to employment, such term does not include an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job.

(E) Rights provisions; exclusion of individuals on basis of homosexuality or bisexuality

               For the purposes of sections 791, 793, and 794 of this title:

(i) For purposes of the application of subparagraph (B) to such sections, the term “impairment” does not include homosexuality or bisexuality; and

(ii) Therefore the term “individual with a disability” does not include an individual on the basis of homosexuality or bisexuality.

(F) Rights provisions; exclusion of individuals on basis of certain disorders

For the purposes of sections 791, 793, and 794 of this title, the term “individual with a disability” does not include an individual on the basis of:

(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current illegal use of drugs.

(G) Individuals with disabilities

The term “individuals with disabilities” means more than one individual with a disability.

ALL LINKS IN THIS APPENDIX WILL TAKE YOU TO THE U.S. DEPARTMENT OF EDUCATION WEBSITE


Section 504 Handbook

Appendix E Regulations 

From: www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html

Title 34 Education
Subtitle B Regulations of The Offices of The Department Of Education
Chapter I -- Office for Civil Rights, Department of Education
Part 104 -- Nondiscrimination on The Basis of Handicap In Programs or Activities Receiving Federal Financial Assistance

Subpart A General Provisions

Sec.
104.1 Purpose.
104.2 Application.
104.3 Definitions.
104.4 Discrimination prohibited.
104.5 Assurances required.
104.6 Remedial action, voluntary action, and self‑evaluation.
104.7 Designation of responsible employee and adoption of grievance procedures.
104.8 Notice.
104.9 Administrative requirements for small recipients.
104.10 Effect of state or local law or other requirements and effect of employment opportunities.

Subpart B Employment Practices

104.11 Discrimination prohibited.
104.12 Reasonable accommodation.
104.13 Employment criteria.
104.14 Preemployment inquiries.

Subpart C Accessibility

104.21 Discrimination prohibited.
104.22 Existing facilities.
104.23 New construction.

Subpart D Preschool, Elementary, and Secondary Education

104.31 Application of this subpart.
104.32 Location and notification.
104.33 Free appropriate public education.
104.34 Educational setting.
104.35 Evaluation and placement.
104.36 Procedural safeguards.
104.37 Nonacademic services.
104.38 Preschool and adult education.
104.39 Private education.

Subpart E Postsecondary Education

104.41 Application of this subpart.
104.42 Admissions and recruitment.
104.43 Treatment of students; general.
104.44 Academic adjustments.
104.45 Housing.
104.46 Financial and employment assistance to students.
104.47 Nonacademic services.

ALL LINKS IN THIS APPENDIX WILL TAKE YOU TO THE U.S. DEPARTMENT OF EDUCATION WEBSITE


Section 504 Handbook

Appendixs F & G

Frequently Asked Questions About Section 504 and the Education of Children with Disabilities
ed.gov/about/offices/list/ocr/504faq.html

Introduction
Interrelationship of IDEA and Section 504
Protected Students
Evaluation
Placement
Procedural Safeguards
Terminology

Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools
ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html

ALL LINKS IN THIS APPENDIX WILL TAKE YOU TO THE U.S. DEPARTMENT OF EDUCATION WEBSITE


Section 504 Handbook

Appendices H-R
Guidance from U.S. Department of Education

Appendix H:

Guidance on Free Appropriate Public Education for Students with Disabilities: Requirements Under Section 504 of the Rehabilitation Act of 1973

Appendix I

Guidance on Hidden Disabilities

Appendix J

Guidance on Access by Students with Disabilities to Accelerated Programs (December 26, 2007)

"Dear Colleague" letter from Assistant Secretary for Civil Rights Stephanie Monroe addressing the rights of students with disabilities to participate in schools’ and school districts’ accelerated programs, such as Advanced Placement and International Baccalaureate classes or programs.

Appendix K

Guidance on Helping Students with Diabetes (April 14, 2005)

Joint "Dear Colleague" letter to Chief State School Officers concerning the document "Helping the Student with Diabetes Succeed: A Guide for School Personnel," co-authored by the Office for Civil Rights and published in 2003 under the auspices of the National Institutes for Health and the Centers for Disease Control.

Appendix L

Guidance on Students with Disabilities and Transitioning to Postsecondary Education

“Dear Colleague” letter and “Dear Parent” letter from Assistant Secretary for Civil Rights Stephanie Monroe, providing information about the legal rights and responsibilities of students with disabilities as they transition from high school to institutions of postsecondary education.

  • "Dear Colleague" letter HTML OR PDF
  • "Dear Parent" letter HTML OR PDF

Appendix M

Placement of School Children with Acquired Immune Deficiency Syndrome (AIDS) (July 1991)

Describes the requirements of Section 504 of the Rehabilitation Act of 1973, as amended, with respect to elementary and secondary school policies involving the placement of children with Acquired Immune Deficiency Syndrome or AIDS.

Appendix N

Guidance on Disclosure of Report Cards and Transcripts for Students with Disabilities (October 17, 2008)

"Dear Colleague" letter from Assistant Secretary for Civil Rights Stephanie Monroe providing recipients with information regarding disclosure of disability on report cards and transcripts for students with disabilities attending public elementary and secondary schools. The purpose of this guidance is to clarify how federal laws apply to statements on report cards and transcripts when these statements identify students as students with disabilities.

  • "Dear Colleague" letter HTML OR PDF

Appendix O

Guidance on Schools' Obligation to Provide Equal Opportunity to Students with Disabilities to Participate in Extracurricular Athletics (January 25, 2013)

"Dear Colleague" letter from Acting Assistant Secretary for Civil Rights Seth Galanter, addressing equal access to extracurricular athletics for students with disabilities. The "Dear Colleague" letter provides an overview of the obligations of public elementary and secondary schools under Section 504 of the Rehabilitation Act (Section 504), and the Department’s Section 504 regulations; cautions against making decisions based on presumptions and stereotypes; details the specific Section 504 regulations that require students with disabilities to have an equal opportunity for participation in nonacademic and extracurricular services and activities; and discusses the provision of separate or different athletic opportunities.

  • Press Release HTML
  • "Dear Colleague" letter HTML OR PDF
  • 'Fast Facts' about "Dear Colleague" letter HTML OR PDF
  • Fast Facts about “Dear Collegue” Letter En español (Spanish) HTML OR PDF

Appendix P

Guidance on Schools’ Obligations to Protect Students from Student-on-Student Harassment on the Basis of Sex; Race, Color and National Origin; and Disability (October 26, 2010)

“Dear Colleague” letter from Assistant Secretary for Civil Rights, Russlynn Ali, concerning recipients' obligations to protect students from student-on-student harassment on the basis of sex; race, color and national origin; and disability. The letter clarifies the relationship between bullying and discriminatory harassment, provides examples of harassment, and illustrates how a school should respond in each case.

Appendix Q

Guidance on Retaliation

“Dear Colleague” letter from Acting Assistant Secretary for Civil Rights Seth Galanter, concerning the prohibition against retaliation under Federal civil rights laws. The letter clarifies the basic principles of retaliation law and describes OCR’s methods of enforcement.

  • “Dear Colleague” letter HTML OR PDF
  • Carta a los Estimados Colegas HTML OR PDF
  • Eliminating Retaliation for Exercising Civil Rights (Race and National Discrimination) PDF
  • Eliminating Retaliation for Exercising Civil Rights (Sex Discrimination) PDF
  • Eliminating Retaliation for Exercising Civil Rights (Disability Discrimination) PDF

Appendix R

Guidance on Bullying of Students with Disabilities

"Dear Colleague" letter from Assistant Secretary for Civil Rights Catherine E. Lhamon, concerning the obligation of elementary and secondary schools to respond to the bullying of students with disabilities, including those students who are not eligible for services under the Individuals with Disabilities Education Act but are entitled to services under Section 504 of the Rehabilitation Act. The guidance discusses the actions schools must take when bullying interferes with the education of a student with a disability who is bullied on any basis, and provides insight into how OCR analyzes complaints involving bullying of students with disabilities.

Print Chapter 5-Evaluation & Eligibility


Section 504 Handbook

Chapter 5 Preschool, Elementary & Secondary Programs
Evaluation & Eligibility

Evaluation
Section 504 Evaluation Triggers
Parental Notice & Consent
Conducting the Evaluation
Information to Consider
Formal Testing
Medical Diagnosis
Evaluation Timeline
Independent Evaluation
Reevaluation
Evaluation Considerations
Eligibility for Section 504 Services
Physical or Mental Impairment
Major Life Activities
Substantial Limitation
Mitigating Measures
Episodic Impairments or Those in Remission
Individualized Health Plans
Temporary Impairments
Excluded from Protection
Determining Eligibility
Technically Eligible Students
Ending Section 504 Services

Evaluation

Section 504 requires preschools, elementary and secondary schools to evaluate individuals who may need accommodations or services before services are provided. If a teacher, administrator or other individual suspects that a student has a disability, that individual may refer the student for evaluation. A parent may also request that a student be evaluated.  School districts should develop policies and procedures regarding referral for evaluation to meet their Section 504 obligations.

Many times when a student is not progressing as expected, the student is first referred to a Student Intervention Team for general education interventions. However, if that team suspects the concern is disability related, or determines general education interventions are not working as anticipated, a referral for a Section 504 or Special Education evaluation should be made. Because the eligibility standards under Section 504 are broader than the eligibility standards under the IDEA, a student may be eligible for accommodations through a 504 plan despite his ineligibility for an IEP. North Kingstown (RI) Sch. Dist., 64 IDELR 54 (OCR 2013). While courts have generally held that an offer of services under IDEA serves to meet Section 504 FAPE requirements, recent cases call into question whether this remains true.  See Lamkin v. Lone Jack C-6 Sch. Dist., 2012 WL 8969061, 58 IDELR 197 (W.D. Mo. 2012) (a student with multiple disabilities lost her right to Section 504 accommodations once her parents revoked consent for IDEA services).  But see D.F. v. Leon County Sch. Bd., 2014 WL 28798, 62 IDELR 167 (N.D. Fla. 2014) (parent's rejection of IDEA services did not waive the student's right to any services that might be available under the other statutes, including assistive technology under Section 504 and Title II).

Under Section 504 or IDEA regulations, districts must conduct an initial evaluation when a student, because of his disability, “needs or is believed to need special education or related services.” If a school thinks a student has a physical or mental impairment that is substantially limiting a major life activity and believes the student needs supplementary or related services, accommodations or modifications in the regular education environment beyond services provided for any student, a 504 referral should be made. The school has an obligation to refer and evaluate a student under Section 504 whether or not it is requested by a parent. West Contra Costa (CA) Unified School District, 42 IDELR 121 (OCR 2004). Any policy or practice that limits Section 504 evaluations solely to instances where parents expressly request them is unlawful. Oxnard (CA) Elem. Sch. Dist., 56 IDELR 274 (OCR 2011).

When the need for special education is suspected, the evaluation should, in all respects, comply with IDEA requirements. Compliance with IDEA evaluation requirements suffices to meet Section 504 requirements, and the school need not conduct separate evaluations under IDEA and Section 504.

When a parent requests a Section 504 evaluation, school personnel should either conduct an evaluation, if they believe the child does have a disability that may qualify him for Section 504 services or notify parents of the school’s refusal to evaluate and of their parental rights under Section 504, including the right to request a due process hearing. See Pine Forest (AZ) Charter Sch., 116 LRP 19095 (OCR 2016).

Section 504 coverage is broader than the subset of students who qualify for special education and related services under IDEA. Not all Section 504 students fall under one of the IDEA categories of disability or need specially designed instruction or related services. Section 504 applies to students who, because of a disability, may need modifications to policies and practices or accommodations in order to be on equal footing with other students in the regular education environment.

While there is no specific formula for determining when a Section 504 referral is implicated, the evaluation triggers below provide examples of times when Section 504 evaluation might be considered. Recent OCR opinions also suggest that 504 coverage should be considered if a student has an active individualized health plan. If there is a likelihood the student has a disability recognized under IDEA and will need special education, IDEA procedures should be followed.

Evaluation Triggers

  • When a parent frequently expresses a concern about the student’s performance.
  • When suspension or expulsion is being considered for any student.
  • When retention is being considered.
  • When a student shows a pattern of not benefiting from teacher instruction.
  • When a student has a serious illness or injury.
  • When a student is referred to the Student Intervention Team.
  • When a student is evaluated under IDEA and does not qualify for special education.
  • When a student is released from IDEA services.
  • When a student exhibits a chronic health condition.
  • When a student has been identified as having attention deficit disorder (ADD) or deficit hyperactivity disorder (ADHD) and educational performance is affected.
  • When a student is identified as “at-risk” or exhibits potential to drop out of school.
  • When substance abuse is an issue, if the individual has stopped using and is either in rehabilitation or has gone through the rehabilitation process.
  • When a disability of any kind is known or suspected.
  • Adapted from “Section 504 ADA Guidelines for Educators,” KSDE (200

Cases on Point

Evaluation Triggers
  • M. by Miller v. South Callaway R-II Sch. Dist., 732 F.3d 882 (8th Cir. 2013). Under some circumstances, knowledge of a disability coupled with delaying accommodations can show bad faith or gross misjudgment. The court found the delay in this case needed to be considered in the context of the district’s numerous and continuous attempts to assist the child and fell short of meeting the bad faith or gross misjudgment level.
  • Arapahoe (NC) Charter Sch., 116 LRP 35859 (OCR 2016). A student's ongoing behavioral challenges and indications that the student might have a disability triggered the school's obligation to evaluate.
  • Oran (MO) R-III Sch. Dist., 114 LRP 41265 (OCR 2014) OCR resolved a potential compliance concern by requiring the district to evaluate each student who had an Individual Health Plan (IHP) for Section 504 eligibility.
  • Sparta Area (WI) Sch. , 64 IDELR 116 (OCR 2013). A teenage student’s frequent absences from school and her disclosure to a guidance counselor that she did not like to leave her mother or home should have prompted a Wisconsin district to evaluate her for Section 504 eligibility. The district advised the parent to seek outside help from medical and behavioral professionals and to have the student visit the counselor "whenever she felt overwhelmed at school," rather than evaluating her for services under Section 504
  • Acalanes (CA) Union High Sch. Dist., 64 IDELR 86 (OCR 2013). Although the district had medical documentation of the student’s head trauma, migraines, and excessive absences during her freshman year, it failed to evaluate her or convene a meeting to discuss possible accommodations until the end of her sophomore year, and only when prompted by her physician.
  • Downey (CA) Unified Sch. Dist., 54 IDELR 176 (OCR 2009). Evidence supported a parent’s allegation that the district denied a free appropriate education to an eighth-grader with asthma by failing to identify and assess him for Section 504 services in a timely fashion. OCR concluded the student’s attendance record, failing grades, and evidence of a possible disability that appeared to impact his education was enough to trigger the district’s duty to evaluate him for 504 eligibility.
  • Bristol-Warren (RI) Reg'l Sch. Dist., 56 IDELR 303 (OCR 2010). A district that offered an RTI plan to a second-grader with ADHD and anxiety disorder instead of referring her for an evaluation violated Section 504. OCR determined the district should have determined whether she qualified for a 504 plan because the RTI plan did not address the student’s communication and social interaction needs.

Parental Notice & Consent

Once it is determined evaluation is needed, a school administrator, or other person designated to coordinate Section 504 compliance, should determine how and when the evaluation will be completed. Written notice of the desire to evaluate the student should be provided to the parent, and, according to OCR rulings, parental consent to the evaluation should be secured prior to the commencement of the evaluation. Consent should be obtained even if the district believes the evaluation will consist solely of reviewing information that is currently available.

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.

If parents refuse to consent, the school may seek resolution through the school’s Section 504 due process procedures. However, the school is not required to request due process. A parent who refuses to consent to proposed evaluation cannot later assert the student’s rights under IDEA or Section 504 were violated.

Conducting the Evaluation

A Section 504 evaluation should be conducted by a group of persons who are knowledgeable about the student and the student’s disability. This group should also understand the meaning of evaluation data and placement options. Unlike and IEP team under IDEA, the number of persons in the “group of knowledgeable persons” and their titles or qualifications are not defined in law. The composition of the team for each student will vary, depending on the nature of the disability and the needs of the student. All areas of suspected disability should be considered.  See Prince William County (VA) Pub. Schs., 64 IDELR 153 (OCR 2014) (school district violated Section 504 when it failed to consider a child's severe allergies during her evaluation).

The Section 504 evaluation team typically includes some of the following individuals:

  • Teachers
  • Counselors
  • School nurse
  • Principal or assistant administrator
  • School psychologist
  • Social workers
  • Other related service providers or specialists
  • Members of the Student Intervention Team, if the student has been involved in the SIT process

While not mandated, parental participation in the process is recommended. Parents can provide valuable information about their child’s health needs, behavioral challenges, and services, accommodations or interventions that have been tried at school or at home in the past. To the extent possible, the meeting to discuss evaluation and eligibility should be scheduled at a time when the parent can attend.

Information to Consider

Unlike IDEA, evaluation under Section 504 does not always mean testing. It does mean gathering information from a variety of sources, but formal testing is not required under Section 504. The evaluation should be tailored to the needs of the student and designed to help the evaluation team understand how the disability limits the student’s abilities to participate in school programs and activities. Typically, Section 504 teams consider information like:

  • Report cards, including the student’s grades;
  • Attendance records;
  • Teacher observations, reports or recommendations;
  • Information provided by the parent;
  • The student’s social or cultural background;
  • The student’s home language survey or other language testing;
  • Information concerning general education interventions that have been tried and the results obtained;
  • Standardized testing scores, including aptitude and achievement tests, state assessments and/or local assessments;
  • Information provided on referral forms;
  • Disciplinary records;
  • Health information, including the student’s current physical condition and any existing individualized health plan or emergency action plan;
  • Prior Section 504 or Special Education evaluations or services; and/or
  • Private evaluation reports, including information provided by physicians.

Formal Testing

While formal testing is not required as part of a Section 504 evaluation, if formal testing is administered as part of the process, any tests or other evaluation materials used to determine eligibility must be:

  • Validated for the specific purpose for which they are used;
  • Administered by trained personnel in conformity with the instructions provided by the test producer; and
  • Tailored to assess specific areas of educational need.
  • Tests must also be selected and administered to ensure the results accurately reflect whatever the test is designed to measure, not the effect of the disability.

Whatever evaluation tools used or data considered, the focus of the evaluation should be on identifying the nature of the student’s disability, the limitations it places on the student’s ability to function in various school settings, and the services necessary to meet the student’s needs. The amount of data or information required to make these decisions is determined by the group of individuals charged with evaluation.  Detroit (MI) Public Schools, 110 LRP 66005 (OCR 2010). This group also determines the weight that will be given to any of the data it considers.

Medical Diagnosis

Section 504 does not require a medical diagnosis of a condition. Bethlehem (NY) Central Sch. Dist., 52 IDELR 169 (OCR 2009). In Prince William County (VA) Pub. Schs., 63 IDELR 139 (OCR 2013), the school denied eligibility because the student did not have a medical diagnosis of ADHD. OCR explained the determination of whether a student has a disability is not based solely on a medical diagnosis, but instead on an assessment of whether the student is substantially limited in a major life activity, which the team never considered.

In determining Section 504 eligibility, a medical diagnosis is required only if a 504 team believes it is necessary. If the team can determine the student has an impairment from other sources, no medical diagnosis is required. Further, if the school believes a medical diagnosis is warranted, the school must pay for the evaluation. It cannot condition evaluation and eligibility on the parent securing or providing existing medical data to the school at the parent’s expense. Letter to Veir, 20 IDELR 864 (OCR 1993). See also Alabaster City (AL) Sch. Dist., 114 LRP 45081 (OCR 2014)(school violated Section 504 when it required all students to submit a physician's note before finding them eligible for homebound placement); Dysart (AZ) Unified Sch. Dist., 114 LRP 51789 (OCR 2014) (district was obligated to reimburse parents for the costs of the medical assessments where it required they obtain them).

Additionally, a medical diagnosis, standing alone, is not a sufficient evaluation. Eligibility under Section 504 can never be based on a single piece of evaluation data, including a note or letter from a physician diagnosing a condition or advocating for a Section 504 plan for the student. The regulations require the school to “draw upon information from a variety of sources,” document and carefully consider the information from all sources. While a medical diagnosis does not qualify a student for Section 504 protections, it should result in further inquiry, and may trigger a Section 504 referral for evaluation. By looking at information from a variety of sources, the possibility of error in classification is minimized.

(For additional information, see Appendix F, Questions 23-24.)

Evaluation Timeline

Section 504 does not establish a timeframe for completion of an initial evaluation. OCR had indicated that evaluation must be completed within a reasonable time. OCR has looked to state guidelines in evaluating reasonableness. See Pickens County (GA) Sch. Dist., 114 LRP 15875 (OCR 2013); Beach Park (IL) Cmty. Consol. Sch. Dist. #3, 62 IDELR 155 (OCR 2013); Walled Lake (MI) Consol. Schs., 52 IDELR 81 (OCR 2008).

The school must have notice of a suspected disability before the timeline begins to run. See Sarasota County (FL) Schs., 55 IDELR 296 (OCR 2010)(where there was no indication parents raised the issue of suspected disabilities, disclosed the student had ADHD, or requested an evaluation during prior discussions with school officials, OCR concluded that the school district provided a timely evaluation when the principal initiated the student intervention team process within days of receiving the parents’ request for an evaluation) and Westport (CT) Pub. Schs., 54 IDELR 329 (OCR 2009)(parent failed to establish the information available to the district about the student’s conditions was sufficient to prompt a Section 504 evaluation where nothing suggested the student’s absences or visits to the school nurse’s office were related to his asthma or mold allergy).

If the district spends time ruling out eligibility under IDEA, the Section 504 timeline should be shorter than in cases where only Section 504 services are being considered. Delay in evaluation has resulted in a finding the district violated Section 504, as suggested in the cases outlined below.

After receiving information from a variety of sources, the IEP team must review the evaluation data and determine whether the student is eligible for services or accommodations under Section 504. The eligibility decision is discussed more fully in the next part of this chapter. When the 504 team cannot agree on eligibility, the parent can request a due process hearing to resolve the issue.

Cases on Point

Timeliness of Evaluation
  • Berkley (MI) Sch. Dist., 114 LRP 45140 (OCR 2014). Failure to refer the student for an evaluation for three months after the doctor diagnosed the student with ADHD constituted an unreasonable delay in evaluation.
  • Chesterfield County (SC) Pub. Schs., 54 IDELR 299 (OCR 2009). Because the district received an independent psychological assessment from the parent strongly indicating the student might have a disability, it was required to promptly determine whether the student needed to be evaluated and could not wait eight months to consider whether a student with social, communication and behavioral issues should be evaluated for a 504 plan.
  • Penn Yan (NY) Cent. Sch. Dist., 60 IDELR 170 (OCR 2012). Failure to evaluate a student with epilepsy for six months after it had reason to believe the student needed special education or related aids and services due to a disability violated Section 504.
  • Indian River County (FL) Sch. Dist., 58 IDELR 52 (OCR 2011). A delay of four months before beginning an evaluation was unreasonable. A district’s receipt of supporting medical documentation or use of the response to interventions process should not obstruct the timeliness of Section 504 eligibility evaluations.
  • Oxnard (CA) Elem. Sch. Dist., 56 IDELR 274 (OCR 2011). The school district discriminated against a first-grader with ADHD and a mood disorder not only by delaying his IDEA evaluation, but also by failing to evaluate his eligibility for Section 504 services.

Independent Evaluation

Section 504 regulations do not include the parental right to an independent evaluation at public expense found in IDEA. Because there is no funding attached to Section 504, however, school districts are often grateful when parents willingly provide medical or other types of evaluations they have already obtained to inform the 504 team’s decisions. Any information provided by the parent should be considered, but the weight given to the information is a team decision.

Even if private evaluations identifying a student as having a disability are available, Section 504 regulations permit a district the opportunity to conduct its own evaluations before providing the child with services. Cobb County (GA) Sch. Dist., 59 IDELR 266 (OCR 2012).

(For additional information, see Appendix F, Question 25.)

Reevaluation

Section 504 regulations require that reevaluations be conducted “periodically,” but sets no particular timetable for reevaluation. OCR has indicated meeting IDEA reevaluation requirements—reevaluation at three-year intervals, or more frequently if conditions warrant—satisfies, but is not mandated by, Section 504. Reevaluation should also be considered if it is requested by a parent or teacher, or if the need for additional evaluation is apparent when reviewing current data about the student at the annual review of the Section 504 plan.

Again, while not mandated, reevaluation, or a thorough review of current data to determine reevaluation is unnecessary, is advisable when a student is transitioning from elementary to middle or junior high and then again to high school. Not only will it help familiarize new staff with the student’s limitations and needs, it will also allow the team to consider obstacles or challenges which may present themselves at the new level.

Section 504, unlike IDEA, requires reevaluation prior to a significant change in placement. Because suspension of 10 days or more constitutes a “change in placement,” a reevaluation that meets Section 504 criteria is required prior to expelling a student or suspending a student for 10 days or more. A reevaluation should also be conducted prior to graduation from high school.

(For additional information, see Appendix F, Questions 28-29. And the Section 504 regulation on Evaluation and Placement, 34 CFR 104.35, is in Appendix E.)

Cases on Point

Reevaluation
  • Fulton County (GA) Sch. Dist.,115 LRP 55129 (OCR 2015) A district's failure to reevaluate a student after he sustained severe neck and back injuries in an automobile accident raised Section 504 and Title II compliance concerns.
  • West Gilbert (AZ) Charter Elem. Sch., Inc., 115 LRP 52095(OCR 2015) A charter school could not properly address a student's allergies until it reevaluated him following the arrival of a service dog to school.
  • Huntington Beach City (CA) Sch. Dist., 115 LRP 17622(OCR 2015) The district should have reevaluated the student to determine whether the bullying he experienced affected his ability to learn.
  • Battle Creek (MI) Pub. Schs., 114 LRP 36329 (OCR 2014). An expulsion or out-of-school suspension of more than 10 consecutive school days in the same school year constitutes a significant change in placement, which triggers the duty to reevaluate the student, including determining whether the conduct was a manifestation of a disability.
  • Wilson County (NC) Schs., 114 LRP 45134 (OCR 2014). A student's transfer to a new school or program may trigger the need for a reevaluation.
  • Dysart (AZ) Unified Sch. Dist., 114 LRP 51789 (OCR 2014) A district should have reevaluated a student with mental health issues before discontinuing her 504 plan.
  • Denair (CA) Unified Sch. Dist., 53 IDELR 98 (OCR 2009) (concluding that a district should have reevaluated the student because his disruptive behaviors gradually increased in frequency and severity over an extended period)
  • Capistrano Connections Acad. Charter Sch. (CA), 114 LRP 53379 (OCR 2014) (finding that a district had a duty to reevaluate a student whose academic performance suffered due to recent health problems related to her disability); and
  • Charlotte-Mecklenburg (NC) Schs., 114 LRP 36318 (OCR 2014) (determining that a district violated Section 504 when it terminated the homebound services of two students without reevaluating their needs).
  • Anacortes (WA) Sch. Dist. No. 103, 53 IDELR 241(OCR 2009) A district violated Section 504 where it did not conduct a reevaluation to consider the student's extensive absences, the new information it had received from the student's medical providers, or the parent's request for additional services for the student.
  • De Soto (KS) Unified Sch. Dist. No. 232, 52 IDELR 20 (OCR 2008) A Kansas district likely failed to comply with Section 504 when it exited students with disabilities from a reading program without first reevaluating them.

Evaluation Considerations

If the school suspects that a student has a disability or if a parent requests an evaluation, parents are provided notice of the desire to evaluate the child. Once parental consent is received an individual evaluation is conducted. The following are some considerations for meeting 504 evaluation requirements.

  • The school administrator should make determination of who will conduct the evaluation. The evaluation team must be knowledgeable about the student, disability, and be familiar with the evaluation data and placement options.
  • Each evaluation should be tailored to the specific needs of the student.
  • The parents need to be notified before the evaluation is conducted. Consent to evaluation is required.
  • Tests and other evaluation materials should be validated for the specific purpose for which they are used and administered by trained personnel in conformance with the instructions provided by their producer.
  • Tests and other evaluation materials include those tailored to assess specific areas of educational need.
  • Tests should be selected to ensure that when a test is administered to a student with impaired sensory, manual, or speaking skills, the results accurately reflect whatever the test is designed to measure.
  • In interpreting evaluation data and in making placement or accommodation decisions, a school should draw upon information from a variety of sources, including aptitude and achievement tests, interest inventories, teacher recommendations, and other factors such as the child’s physical condition, social or cultural background, and adaptive behaviors.
  • A reevaluation should be conducted before making a significant change in placement.
  • The school may refuse to conduct an evaluation but has the obligation to inform the parents of the reason(s) for the refusal. The parent should also be informed of their procedural safeguards, including the right to request a due process hearing.
  • An evaluation or reevaluation under the provisions of the Individuals with Disabilities Education Act meets Section 504 requirements. However, the determination a student does not need special education or related services under IDEA does not end the inquiry under Section 504.

Eligibility for Section 504 Services

Students who meet the definition of a person with a disability are those who:

  • Have a physical or mental impairment which substantially limits one or more major life activities;
  • Have a record of such an impairment; or
  • Are regarded as having such impairment.

To be eligible for Section 504 services, a student must be evaluated and determined to have a physical or mental impairment that substantially limits one or more major life activities. Not all impairments result in a substantial limitation, as illustrated below.

Students with a record of impairment or who are regarded as having an impairment are protected from discrimination on that basis, but do not need special accommodations or services because they do not have an impairment that is causing any substantial limitation on major life activities.

Physical or Mental Impairment

Physical or mental impairment is defined in the Section 504 regulations 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, genitourinary, hemic and lymphatic, skin or endocrine; or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

Major Life Activities

To qualify for services or accommodations under Section 504, the physical or mental impairment must substantially limit one or more major life activities. Major life activities were originally defined as those functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.” When Congress passed the Americans with Disabilities Amendments Act of 2008, it significantly broadened the definitions under the ADA.

Added by ADAAA
  • Eating
  • Sleeping
  • Standing
  • Lifting
  • Bending
  • Learning
  • Reading
  • Concentrating
  • Thinking
  • Communicating
  • The operation of a major bodily function, including functions of the following organs or systems:
  • Immune system
  • Normal cell growth
  • Digestive
  • Bowel
  • Bladder
  • Neurological
  • Brain
  • Respiratory
  • Circulatory
  • Endocrine
  • Reproductive
Added in ADAAA Employment Regulations
  • Sitting
  • Reaching
  • Interacting with others
  • The operation of a major bodily function, including functions of the following organs or systems:
  • Special sense organs and skin
  • Genitourinary
  • Cardiovascular
  • Hemic
  • Lymphatic
  • Musculoskeletal
  • The operation of a major bodily system includes the operation of an individual organ within a body system.

(For additional information see Appendix G, Question 6.)

The ADAAA not only amended the ADA, but also included a conforming amendment to the Rehabilitation Act of 1973 that applies the new definitions under the ADA to Section 504 as well. While the ADAAA did not alter a school district’s obligations to provide a free appropriate public education or the required procedures, it did significantly broaden the number of students that may qualify for Section 504 protection.

Cases on Point

Major Life Activities
  • P. v. Compton Unified Sch. Dist., 135 F. supp.3d 1098 (C.D. Cal. 2015). The court rejected the notion that exposure to traumatizing events is a disability in its own right but noted that the physical or mental effects of such trauma could amount to a substantial limitation on a major life activity for purposes of Section 504 eligibility.
  • Hamilton County (FL) Sch. Dist., 59 IDELR 111 (OCR 2012). A school district erred in considering only two major life activities—learning and controlling behavior—in considering whether a student’s ADHD substantially limited a major life activity. Further it did not consider whether the student’s other confirmed impairments, autism and separation anxiety substantially limited other major life activities.
  • Oxnard (CA) Union High Sch. Dist., 55 IDELR 21 (OCR 2009). A California district created Section 504 compliance concerns when it improperly concluded that a high school student with a gastrointestinal disorder was not a student with a disability under Section 504. The student was absent due to illness for 28 days in ninth grade and 35 days in 10th grade. The student’s physician wrote a letter to school officials stating that due to recurrent vomiting, nausea and abdominal pain, the student was likely to have tardiness and a high number of absences. Despite this documentation, the district determined that the student was ineligible under Section 504 because the student received good grades his condition did not substantially limit his ability to learn, but offered the student bathroom privileges, excused his tardiness, and offered a reasonable make-up period for missed assignments. OCR noted an individual has a disability under Section 504 if he has a physical impairment that substantially limits one or more major bodily functions such as digestive and bowel functions. Because the district failed to consider the impact the student’s symptoms had on these bodily functions, the eligibility standard it applied to the student did not comply with Section 504.
  • Palo Verde (CA) Unified Sch. Dist., 56 IDELR 177 (OCR 2010). OCR found the school district erred in limiting its review to whether the student’s impairments substantially limited his ability to learn. In light of the student’s distracted behavior, inability to concentrate, and susceptibility to seizures, the district should have considered the effect of his impairments on other life activities.
  • Miller County (GA) Sch. Dist., 56 IDELR 53 (OCR 2010). The fact that a student with Tourette syndrome and obsessive compulsive disorder was achieving good grades in honors classes did not mean that he was ineligible for a Section 504 plan. After the student was repeatedly sent to the office for his behavior and missed instructional time, the school should have considered the student's ability to interact with others, control his behavior, attend school, and participate in the educational program in addition to learning.
  • Lakeview (MI) Pub. Schs., 64 IDELR 52 (OCR 2013). A student’s teachers reported that he was frequently inattentive, required increased directions and specific instructions to start a task, took more than an average amount of time to follow directions, and processed information slowly. The district was aware the student had pervasive developmental disorder, ADD, autism, and other medical conditions.  The district should have considered evaluating the student under Section 504, even though his IDEA evaluation concluded he did not require special education or related services to meet his needs.
  • Torrance (CA) Unified Sch. Dist., 59 IDELR 16 (OCR 2012). The district determined the student with ADHD was not eligible for Section 504 services because his good grades and standardized test scores indicated his ADHD did not impact his ability to learn. OCR suggested the district should have considered whether the student’s disability impacted other major life activities like thinking, concentrating, neurological functioning, brain function, and executive functioning.  OCR noted a student’s substantial efforts and use of outside resources can result in academic achievement that masks deficits in major life activities, which would otherwise qualify the student for Section 504 benefits.

In addition to expanding the definition of major life activities, the major changes contained in the ADAAA are explained in the Office for Civil Rights Q&A found in Appendix G. Each of the changes referenced are discussed in more detail below.

Substantial Limitation

The 504 regulations do not contain a definition of “substantially limits” and OCR has specifically declined to define the term, concluding it should be defined by local school districts. Letter to McKethan, 23 IDELR 504 (OCR 1994). The legislative history of the Americans with Disabilities Act of 1990 suggests a major life activity is substantially limited when “the individual’s important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people,” but the term was not defined in the law or regulations.

The ADAAA amendments failed to provide a definition but did provide guidance on how the definition of disability should be interpreted. These amendments specify:

  • An impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting.
  • The term “substantially limits” must be interpreted without regard to the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses.

An impairment that is episodic in nature or in remission is a disability if it would substantially limit a major life activity when in its active phase.

  • The EEOC regulations governing employment provide additional guidance:
  • The primary focus should be on whether discrimination occurred, not coverage.
  • The decision as to whether one qualifies as an individual with a disability should not require extensive analysis. It usually will not require scientific, medical or statistical analysis.
  • The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard. It is a lower standard than the standard applied by regulations and court decisions prior to the ADAAA.
  • An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. The inquiry is an individualized assessment.
  • An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
  • Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”
  • Limitation on one major life activity is sufficient.

Some impairments will almost always meet the criteria.  The EEOC regulations indicate “it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated:

  • Deafness substantially limits hearing;
  • Blindness substantially limits seeing;
  • An intellectual disability substantially limits brain function;
  • Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
  • Autism substantially limits brain function;
  • Cancer substantially limits normal cell growth;
  • Cerebral palsy substantially limits brain function;
  • Diabetes substantially limits endocrine function;
  • Epilepsy substantially limits neurological function;
  • Human Immunodeficiency Virus (HIV) infection substantially limits immune function;
  • Multiple sclerosis substantially limits neurological function;
  • Muscular dystrophy substantially limits neurological function; and
  • Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain

The EEOC regulations further suggest it may be useful in some cases to consider the condition under which and the manner in which the individual performs the major life activity. Additionally, the duration of time it takes the individual to perform the major life activity or the amount of time for which the individual can perform the major life activity may be considered. Comparisons must be to how other people in the general population perform the function.

Other factors to consider may include:

  • The difficulty, effort, or time required to perform a major life activity;
  • The pain experienced when performing a major life activity;
  • The length of time a major life activity can be performed; or
  • The way the impairment affects the operation of a major bodily function.

The question of substantial limitation is an individualized inquiry that must be made on a case-by-case basis. The team must consider how the student performs or engages in major life activities compared to the average student in the district who does not have a disability. Information from a variety of sources should be considered. The focus must be on any major life activity that is limited, not just academic considerations like learning, reading, thinking or concentrating.

When evaluating if a student is substantially limited in learning, teams must be careful to look at more than a student’s grades. If a student, because of a disability, must give substantially more time, energy or effort to achieve a high-performance level when compared with students in the general population, learning may be substantially limited even though the student earns excellent grades.

While both OCR and EEOC have suggested the existence of an impairment does not result in automatic Section 504 coverage, each agency has suggested eligibility is easy to determine in some cases. In Dear Colleague Letter, 58 IDELR 79 (OCR 2012), OCR indicated that while there are no per se disabilities under Section 504, the nature of many impairments is such that in virtually every case a determination in favor of disability will be made: extensive analysis is unnecessary to determine a child with bipolar disorder, diabetes, epilepsy or autism has a disability. EEOC suggests the analysis should be similarly uncomplicated in several cases.

(For more information see Appendix F, Questions 21-22.)

Mitigating Measures

Americans with Disabilities Amendments Act, 42 U.S.C. 12102(4)(E)(i): The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as:

  1. 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, or oxygen therapy equipment and supplies;
  2. use of assistive technology;
  3. reasonable accommodations or auxiliary aids or services; or
  4. learned behavioral or adaptive neurological modifications.

Mitigating measures are not defined in Section 504 regulations. The Americans with Disabilities Amendments Act did not define the term but provided a list of the types of things or interventions that may help to ameliorate the effects of a disability. In general, mitigating measures are anything that helps to eliminate or reduce the symptoms of an impairment. Mitigating measures can include the medication a student takes for ADHD; the health care protocols in place for addressing a student’s allergies, diabetes, or other health conditions; the hearing aid that helps a student with a hearing impairment listen; or accommodations that allow a student with irritable bowel syndrome quick access to bathroom facilities.

Cases on Point

Mitigating Measures
  • Hamilton County (FL) Sch. Dist., 59 IDELR 111 (OCR 2012). Students with disabilities may be eligible for Section 504 plans if they are found to be substantially limited in any major life activity, without regard to the ameliorative effects of mitigating measures other than ordinary eyeglasses or contact lenses. The district’s eligibility determination was faulty where there was evidence the evaluation team considered the effects of the student’s ADHD medication in determining if the student had a Section 504 disability.
  • Palo Verde (CA) Unified Sch. Dist., 56 IDELR 177 (OCR 2010). Where the district admitted the student’s continued participation in his general education program required his continued use of prescription medication the district inappropriately considered the ameliorative effects of mitigating measures.
  • Memphis (MI) Community Schools, 54 IDELR 61 (OCR 2009). An individualized health plan is considered a mitigating measure for a student with a health impairment, and its ameliorative effects cannot be considered in determining if the student is an individual with a disability.  These effects can be considered in determining if the student needs Section 504 services, documented in a Section 504 plan.

With the advent of response to intervention and the focus on positive behavior interventions and supports, there is considerable debate over whether these interventions are mitigating measures. Tier II and Tier III interventions will most likely be considered mitigating measures. Tier I interventions may or may not be mitigating measures. If they are generally used with all students and not individualized for a particular student, it is easier to argue they are not mitigating measures.

Side effects caused by mitigating measures, such as fatigue or nausea caused by chemotherapy for a student with cancer, should be taken into account in making eligibility determinations.

When determining if an individual has an impairment that substantially limits a major life activity, the positive effects of mitigating measures cannot be considered. But, the negative side effects of medication or burdens associated with following a particular treatment regimen may be considered when determining whether an individual's impairment substantially limits a major life activity.

For instance, when evaluating a student with ADHD who takes medication, the team should consider how the student functioned without the medication. The evaluation in this case may include information from medical professionals about the behavior that led to prescribing the medication; information from the parents about the child’s behavior prior to taking the medication; school records, including discipline records, and teacher observations from past school years; conversations with teachers and others from a student’s former school if the student has transferred into the district or transitioned from elementary or middle school to the next level.

(For more information see Appendix F, Questions 20.)

When considering whether a student needs services of accommodations in order to be on equal footing with other students, the effects of mitigating measures may be considered. If the mitigating measure is effective in reducing or eliminating the substantially limiting effect of the impairment, Section 504 accommodations should not be required. Thus, a student with ADHD who is not substantially limited in learning, concentrating, thinking or reading when taking his medication may be eligible for Section 504 protection, but may not need a Section 504 Accommodation Plan. See the section of this chapter entitled “Technically Eligible Students,” for information about these students’ rights.

A school generally cannot require a student to use a mitigating measure such as medication. Whether a child will take medication for a condition is a decision that must be made by a parent in consultation with the student’s physician. Schools cannot require students be medicated in order to attend school.

Episodic Impairments or Those in Remission

If the impairment substantially limits a major life activity when it is active, then the student is eligible under Section 504. When evaluating these conditions, the team must consider how the student would be affected if the allergy were active or the cancer were not in remission.

(For more information see Appendix F, Questions 34.)

Individualized Health Plans

Schools have been providing assistance to students with health needs for many years, often documenting these services in Emergency Action Plans (EAP) or Individualized Health Care Plans (IHCP), sometimes shortened to Individualized Health Plan (IHP) developed by the school nurse in conjunction with parents. Increasingly, schools get requests for accommodations from students with food allergies, chemical sensitivities, asthma, diabetes, seasonal allergies, asthma, cancer, and other medical conditions. Since the amendments to the ADA, questions concerning whether these students should be evaluated under Section 504 have arisen with increasing frequency.

In 2013, the Florida Department of Education provided guidance for schools on this issue. Guiding Principles for Section 504 Committees on Students with Individual Health Care Plans (Florida Department of Education 2013). The guidance acknowledges that not all students with IHCPs will need to be referred for Section 504 evaluation but cautions that students on IHCPs should not be excluded from Section 504 referral or evaluation simply because they have an IHCP that is meeting their needs.

In determining whether a student with an IHCP should be referred for Section 504 evaluation, the guidance suggests looking at the following factors:

  • The intensity of the required health plan services

Does the student who self-administers medication occasionally consult with or seek assistance from the school nurse or is the nurse frequently involved with monitoring the student’s condition?

  • The frequency health plan services are provided

Are services provided intermittently or on a daily or weekly basis?
Will the services continue over an extended period of time?

  • The complexity of health plan services

Are services required across environments?
Does the provision of services require collaboration among staff members?
Is training for staff required?

  • The health or safety risks if the services are not provided or are provided incorrectly

Could serious injury or death occur if the services are not provided?

  • The student’s need for other services or accommodations.

Does the student need accommodations or services to address academic, social, emotional, physical or behavioral needs?

The administration of medication by a school nurse or health aide is generally considered by OCR to be a related school health service. Students with IHCPs who receive assistance with medication administration over an extended period of time should be referred for Section 504 evaluation. Additionally, students with IHCPs who need educational accommodations or services to address academic, social, emotional, physical or behavioral needs are prime candidates for Section 504 evaluation.

OCR opinions classify IHCPs as mitigating measures that cannot be considered in determining if a student is eligible for Section 504 protection. North Royalton (OH) Sch. Dist, 52 IDELR 203 (OCR 2009); Memphis (MI) Community Schs., 54 IDELR 61 (OCR 2009). Further, evaluation under Section 504 should not be delayed based on the existence of an IHCP. Opelika City (AL) Sch. Dist., 111 LRP 47376 (OCR 2011).

Once evaluation under Section 504 has occurred, the same factors may be considered in determining if Section 504 services are necessary. OCR has indicated in most cases an IHCP is not the equivalent of a 504 plan, even though the components may be substantively similar, because procedurally it does not meet Section 504 requirements. If the IHCP is not developed by a properly constituted team of individuals and lacks the procedural safeguards afforded parents under Section 504, it does not meet Section 504 mandates, even though it may be meeting the student’s needs. See Roselle Park (NJ) Sch. Dist., 59 IDELR 17 (OCR 2012); Springer (NM) Mun. Schs., 111 LRP 65450 (OCR 2011).

To avoid potential claims in this area, schools should review existing health care plans to determine if there are children on IHCPs who should be referred for Section 504 evaluation. While the substance of the IHCP will probably not change significantly, the services and accommodations should be determined through Section 504 process and procedures and parents should be apprised of their procedural safeguards. Schools should also ensure that all staff members are appropriately trained on their responsibilities.

(For more information see Appendix G, Question 12.)

Cases on Point

Students on Individual Health Plans
  • Torrington (CT) Bd. of Educ., 60 IDELR 261(OCR 2012). The school district believed it addressed the needs of a student with an allergy to shellfish by placing her on a health plan that provided for administration of epinephrine should she be exposed to shellfish and provided her with a shellfish-free table. The school did not consider whether she was 504-eligible, as was the district’s normal practice for students with allergies. OCR noted that the district knew at least as early as fall 2011 that the student's allergies had the potential to threaten her life. In response to the district’s statement it would never have evaluated the student had the parent not requested it OCR stated, "It is essential that eligibility determinations for students suspected of having disabilities are made within the context of Section 504 so that districts are required to adhere to the procedural requirements of the statute's regulations, including making parents or guardians aware of their due process rights at required junctures. “
  • Canyons (UT) School District, 116 LRP 1183 (OCR 2015). A policy of automatically denying IHPs to students with certain medical conditions may violate Section 504. Instead of denying an eighth-grader with migraines and irritable bowel syndrome an IHP because schoolmates with similar conditions did not "normally" receive IHPs, the district should have conducted an evaluation to determine whether the student's medically related absences and tardiness could be reduced with accommodations under an IHP.
  • Roselle Park (NJ) Sch. Dist., 59 IDELR 17 (OCR 2012). The provision of an individualized health plan (IHP) to help a 10th-grader during his 10-week recovery from foot surgery did not satisfy Section 504 requirements. OCR noted the provision of an IHP could have sufficed under Section 504 if it was developed through 504 procedures, i.e., it drew upon information from a variety of sources; was based on careful consideration of that information; was finalized by a group of persons knowledgeable about the student, the meaning of the evaluation data, and the placement options; and otherwise complied with Section 504 regulations. Although a team comprised of a school nurse, guidance counselor, and the principal reviewed the student's medical documentation and consulted with his mother before finalizing the IHP, the developmental process was still procedurally lacking because the district failed to notify the mother of her right to request a due process hearing if she disagreed with the contents of the IHP. The district's simple failure to provide the mother notice of procedural safeguards made what may have been an otherwise appropriate action plan for the student, inadequate.
  • Forest Hills (OH) Local Sch. Dist., 58 IDELR 114 (OCR 2011). An Ohio district violated Section 504 in failing to identify and evaluate students with diabetes. The district had a practice of addressing the needs of students with diabetes strictly through health plans and conducting Section 504 evaluations only when parents specifically requested them. OCR noted that Section 504 regulations do not require a written plan for providing students with services or that any plan be called a Section 504 plan, but the regulations do set requirements for evaluation and placement of students with disabilities. OCR concluded the district’s blanket policy of not evaluating students with diabetes before providing them with health plans contravened Section 504 regulations.
  • Clarksville-Montgomery County (TN) Sch. Dist., 60 IDELR 203 (OCR 2012). OCR received a complaint that the district discriminated against students with food allergies, diabetes, asthma, and other health impairments who had Individual Health Care Plans in failing to evaluate and identify them as students with disabilities under Section 504. While a student’s medical diagnosis alone is not necessarily sufficient to trigger a district’s obligation to evaluate the child’s need for special education or related services, districts must evaluate students who, because of a disability, need or are believed to need special instruction or related services. After reviewing district records, OCR identified 235 students with IHCPs that should have been, but were not, referred for evaluation. The district offered to resolve the complaint by overhauling its evaluation policies and providing intensive training for staff members on their Section 504 and Title II responsibilities.
  • Memphis (TN) City Sch. Dist., 112 LRP 28755 (OCR 2012). Compliance review data showed that 9,284 students had health care plans. With few exceptions, most of these students were not identified as students with disabilities under IDEA or Section 504. OCR concluded the district failed to even screen and evaluate most students with health care plans for Section 504 services and further violated Section 504 by not providing procedural safeguards to parents.
  • Washington (NC) Montessori Pub. Charter Sch., 60 IDELR 79 (OCR 2012). In this case a student with severe allergies was not evaluated for Section 504 eligibility. The district’s Section 504 coordinator indicated students with allergies and other health conditions, such as diabetes, were not evaluated to determine their eligibilities for Section 504 benefits. OCR noted this violated Section 504 and suggested a plan that meets the needs of students with severe allergies should take into account procedures that limit or prevent their risk of exposure to allergens in all school activities or programs. This means taking protective measures in classrooms, common areas, gyms, cafeterias, hallways, playgrounds, and extracurricular and field trip venues. The district resolved the complaint by offering to evaluate enrollees with health conditions and allergies and to train personnel on their Section 504 obligations.
  • Norton (MA) Pub. Schs., 114 LRP 489440 (OCR 2014). OCR determined the district’s failure to adequately evaluate a student with food allergies may have violated Section 504 and Title II. The student’s parent asserted the district discriminated against her son by allowing him to be exposed to allergens in the classroom, on the bus, and during athletic activities. In resolving the complaint, the district agreed during the next school year to identify each student with a food allergy, contact that student’s parents regarding its Section 504 obligations as they pertain to food allergies, and once the parents provide consent, convene 504 teams to review that student’s medical documentation, health plans, if applicable, and any other documentation concerning the student's condition.
  • Prince William County (VA) Pub. Schs., 64 IDELR 153 (OCR 2014). A school district’s failure to properly evaluate a 5-year-old with severe allergies to wheat and nuts resulted in a Section 504 and Title II violation. Although the district was aware of the student’s severe allergies and reviewed his medical records and health treatment plan during IDEA eligibility meetings, the district never considered whether the student was eligible for a Section 504 plan. OCR found the district had enough information to determine that, while the student did not need services under the IDEA, he may have needed related services for his allergies under Section 504.
  • Union County (NC) Pub. Schs., 64 IDELR 25 (OCR 2014). “[P]ublic school districts [must] take those steps necessary to ensure that the school environment for students with disabilities is as safe as the environment for students without disabilities.” Although the district provided services to a student with food allergies pursuant to an IHP, it did not evaluate her to determine eligibility for Section 504 services. OCR indicated the district’s IHP provisions did not provide the same level of protection as Section 504 affords. OCR found the IHP procedures contained no provisions requiring decisions be made by a group of people knowledgeable about the student and the data being considered, required no commitment by the District that it would provide the aids or services contained in the IHP, which was prepared by the school nurse, and no hearing, appeal, or other due process procedures or rights.

Temporary Impairments

Section 504 does not expressly limit eligibility to permanent disabilities. A temporary disability can constitute a physical impairment if it substantially limits a major life activity such that 504 services might be required. See, e.g., Ventura (CA) Unified School District, 17 EHLR 854 (OCR 1991). The proper inquiry is not whether the impairment is temporary or permanent, but rather whether the impairment substantially limits one or more major life activities, generally over an extended period of time. Letter to Rahall, 21 IDELR 575 (OCR 1994). The determination must be made on a case-by-case basis, considering the nature, severity, duration or expected duration and the permanent or long-term impact resulting from the impairment.

Schools only need to refer and evaluate those children who are suspected of needing Section 504 services due to a physical or mental impairment that substantially limits one or more major life activities. If a child breaks his right wrist, and he is left-handed, the school may legitimately not suspect that 504 services will be necessary. However, if the child breaks the right wrist, accommodations may be necessary. The referral question must be taken up on a case-by-case basis, depending on the physical impairment, whether it substantially limits a major life activity, which may depend on the type of classes or activities the child is involved in at school, and whether it needs to be addressed with 504 services or accommodations of some kind. See Cobb County (GA) Sch. Dist., 51 IDELR 54 (OCR 2008) (services required for a student with mononucleosis who could not attend school for the remainder of the semester).

(For more information see Appendix F, Question 33.)

Excluded from Protection

Any student currently engaging in the illegal use of drugs is excluded from the definition of a student with a disability when a school acts against the student based on that use. The ADA defines current use as “illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use if current or that continuing use is a real and ongoing problem.” 28 CFR 35.104. The definition does not exclude current users of alcohol, but OCR has indicated schools may take disciplinary action against a current alcohol user on that basis in the same manner it would take action against any student using alcohol in violation of school policies.

(For more information see Appendix F, Questions 15-16.)

Determining Eligibility

After considering the evaluation material, the school district may make the following determinations:

  • The student has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions and needs Section 504 services or accommodations;
  • The student has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions, but does not need Section 504 services or accommodations; or
  • The student does not have a physical or mental impairment that substantially limits one or more major life activities or major bodily functions.

Whenever an eligibility decision is made, the school district should provide parents with written notice of the decision and the reason for it, along with a copy of the parents’ procedural safeguards, including their right to request a due process hearing under Section 504.

(For more information, see Appendix G, Question 10.)

Technically Eligible Students

As indicated in the previous sections, a student may fit the definition of an individual with a disability and be eligible for Section 504 protection without needing any special education, related services or other Section 504 accommodations or modifications. In a 2012 Dear Colleague Letter, 58 IDELR 79, OCR provided examples of students who meet eligibility requirements, but do not need services. The list included students with an impairment that is in remission, students whose needs are met with mitigating measures they control, or students who need no services or accommodations despite their substantial limitation.

Schools cannot forget about technically eligible students. Even if a student does not need Section 504 services or accommodations, the eligible student is still entitled to other Section 504 protections, including:

  • Periodic reevaluation;
  • An equal opportunity to participate in extracurricular activities and nonacademic services;
  • A manifestation determination prior to a suspension or expulsion that results in a change of placement (generally, for more than 10 days); and
  • The right to procedural protections, including the right to request an impartial hearing under Section 504.

(For more information, see Appendix G, Question 11.)

Ending Section 504 Services

Once a student no longer meets the Section 504 eligibility requirements, he or she should be dismissed from Section 504 protection. The decision a student no longer has a physical or mental impairment that substantially limits a major life activity should be made by the Section 504 team, following reevaluation. Once dismissed, as a person with a record of a disability, the student is protected from discrimination on that basis, but meetings or accommodations are no longer required.

(For more information, see Appendix F, Questions 14 and 31.)

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Section 504 Handbook

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The Section 504 Handbook is a publication of the Kansas Association of School Boards, 1420 SW Arrowhead Road, Topeka, KS 66604, 785-273-3600. Copyright 2018 by the Kansas Association of School Boards. All Rights Reserved. Last Update: December 2018.

This publication is not intended to provide legal advice. Please consult your school attorney or KASB Legal Assistance for guidance on specific questions.

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Section 504 Handbook

Chapter 1-Overview

Purpose
Laws Governing Individuals with Disabilities
Americans with Disabilities Act (ADA) 1990
Section 504 of the Rehabilitation Act of 1973
Individuals with Disabilities Education Act (IDEA)
Section 504 Regulations: Subpart A—General Provisions
Purpose
Application
Responsible employee
Grievance procedures
Notice
Assurances
Remedial action
Types of Discrimination Prohibited
Voluntary Action
Self-evaluation
Definitions
Enforcement
Retaliation
Remedies

Overview

Section 504 of the Rehabilitation Act of 1973 is a civil rights law that prohibits discrimination against individuals on the basis of disability. It provides:

“No otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . .” 29 U.S.C. 794(a).

The law defines “program or activity” to mean “all of the operations” of a public school district. 29 U.S.C. 794(b)(2)(B). Therefore, if a school receives federal funding for any of its programs, the entire school must comply with Section 504’s nondiscrimination mandate.

Section 504 is an anti-discrimination statute like Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin, and Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex. All of these statutes prohibit discrimination by educational institutions that receive federal monies. None of these laws provides funding to schools; on the contrary, they threaten the loss of federal funding in the absence of compliance with the nondiscrimination mandate.

Purpose

The purpose of Section 504 is to prohibit discrimination and to assure that disabled students have educational opportunities and benefits equal to or as adequate as those provided to students who do not have disabilities. Section 504 requires more than making programs physically accessible to individuals with disabilities. Section 504’s “equal access” includes providing individuals with disabilities the supports or accommodations they need to participate effectively in academic programs, non-academic services and extracurricular activities. Section 504 has helped erode stereotypical notions of disability, allowing focus on abilities rather than limitations caused by disabilities.

Laws Governing Individuals with Disabilities

Several federal and state laws apply to individuals with disabilities. Understanding these statutes and how they interact with one another will assist in securing appropriate services for individuals with disabilities and avoiding liability for the school.

Americans with Disabilities Act (ADA) 1990

The ADA is the federal law that prohibits discrimination against persons with disabilities in the areas of employment, public services, public accommodations, transportation, and communication. The ADA is “commerce clause legislation,” and covers the widest array of individuals with disabilities. School employees are protected from discrimination on the basis of disability under Title I of the law; students and others are protected from discrimination under Title II, which applies to all public services, including public school districts. Title III of the act applies to public accommodations, including many private businesses.

Section 504 of the Rehabilitation Act of 1973

This federal civil rights law also prohibits discrimination against individuals with disabilities, but only applies to recipients of federal funding. Section 504 is “spending clause legislation” in which Congress establishes rules for recipients of federal funds. Under Section 504, as a condition of receiving federal funding for any program (e.g., special education, school lunch, Title I, etc.), a school must certify it will not allow discrimination on the basis of disability. Like ADA, the focus of the law is on prohibiting discrimination.

Individuals with Disabilities Education Act (IDEA)

IDEA, last significantly amended in 2004, is a federal education program that provides funding to states and local school districts for special education programs. To receive federal funding, states must ensure that schools provide a free, appropriate public education to students who are eligible for services under IDEA. Eligible students are those between the ages of three and 21 (in Kansas, students age birth to two are served in programs through the Kansas Department of Health and Environment, not the Department of Education) who have a disability that fits within one of thirteen designated categories of disability eligible for services under IDEA and as a result, need special education and/or related services.

The Office for Civil Rights of the U.S. Department of Education is the agency responsible for enforcement of Section 504 in educational institutions. It has promulgated regulations of particular interest to educational institutions in the following areas:

Subpart A—General Provisions
Subpart B—Employment Practices
Subpart C—Program Accessibility
Subpart D—Preschool, Elementary, and Secondary Education
Subpart E—Postsecondary Education

Subparts C and D will be discussed in the ensuing chapters.

Section 504 Regulations: Subpart A—General Provisions

Purpose 34 CFR 104.1

The purpose of Section 504 is to eliminate discrimination on the basis of disability in programs that receive federal dollars.

Application 34 CFR 104.2

Section 504 applies to any program or activity that receives federal financial assistance. If a school receives any federal funding, all of their programs and activities are subject to Section 504 requirements.

Responsible employee 34 CFR 104.7(a)

Each school must designate at least one person to coordinate its compliance with Section 504. Although not required, larger districts may have additional 504 coordinators at the building level. While Section 504 efforts may utilize the expertise of special education personnel, compliance with Section 504 is a regular education responsibility.

Grievance procedures 34 CFR 104.7(b)

A school must adopt grievance procedures that incorporate appropriate due process standards and provide for the prompt and equitable resolution of complaints about discrimination on the basis of disability. Grievance procedures need not apply to complaints from:

  • Applicants for employment; or
  • Applicants for admission to postsecondary institutions.

Notice 34 CFR 104.8

Schools must take continuing steps to notify students, parents, patrons, applicants and employees, unions, and others that the school does not discriminate on the basis of disability in violation of Section 504. The notification, where appropriate, should state that the school does not discriminate in admission or access to, or treatment or employment in its programs or activities. The notification should include identification of the Section 504 compliance coordinator. Methods of notification may include the posting of notices, publication in newsletters or newspapers, publication in policy manuals, employee handbooks and student handbooks, or distribution of other written communication.  Notification should be included in any recruitment materials.

Assurances 34 CFR 104.5

As a condition of receiving federal funding for any program, schools are required to provide written assurance to the Department of Education that they will comply with Section 504 requirements as long as the school receives federal funding.

Remedial Action 34 CFR 104.6(a)

If a school violates Section 504, the U.S. Department of Education (through the Office for Civil Rights) can require the school take any remedial action it deems necessary to overcome the effects of the discrimination against an individual with a disability. This can include remedial actions with respect to persons who are no longer participating in the school’s programs and persons who never participated, but would have been participants if the discrimination had not occurred.

Types of Discrimination Prohibited 34 CFR 104.4(b)

A school cannot:

  • Deny a qualified individual with a disability the opportunity to participate in or benefit from any aid, benefit or service offered by the school;
  • Afford a qualified individual with a disability an opportunity to participate or benefit that is not equal to the opportunity provided to others;
  • Provide a qualified individual with a disability an aid, benefit or service that is not as effective as that provided to others;
  • To be equally effective, services are not required to produce the identical result or level of achievement, but individuals with disabilities must be afforded an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the person’s needs.
  • Provide different or separate aid, benefits or services to qualified individuals with disabilities, unless it is necessary to provide aid, benefits or services that are effective as those provided to others;
  • Despite the existence of separate or different programs, a school cannot deny an individual with a disability the opportunity to participate in programs or activities that are not separate.
  • Perpetuate discrimination by providing assistance to an agency, organization or person who discriminates on the basis of disability;
  • Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards; or
  • Limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving an aid, benefit or service.
  • Choose a location for a facility that will have the effect of excluding a person with disabilities or the purpose of effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to individuals with disabilities.

Voluntary Action 34 CFR 104.6(b)

Schools may take action in addition to any ordered remedial action to overcome the effects of discrimination on the basis of disability.

Self-Evaluation 34 CFR 104.6(c)

Within one year from the effective date of the 504 regulations (sometime in the early 1980s), schools, with the assistance of interested persons, were required to complete a written self-evaluation of their policies and practices to ensure they did not conflict with or violate Section 504 requirements. Schools were required to modify any policies or practices that violated Section 504 and to take remedial steps to eliminate the effects of any discrimination that may have occurred as a result of any discriminatory policies or practices.

Many districts have received requests for copies of their 504 evaluations in recent years. If the school can locate a copy of the self-evaluation, it is a school record that should be provided to a requestor. However, the regulations required that the evaluation be maintained on file for only three years, so many districts will not be able to find their 504 self-evaluation.

A similar self-evaluation was required under the regulations for the Americans with Disabilities Act of 1990 (see 28 CFR 35.105). That regulation also required that the self-evaluation be maintained for only three years.

Definitions 34 CFR 104.3

Individual with a Disability - The current Section 504 regulations define a “handicapped person” as one whom:

  • Has a physical or mental impairment which substantially limits one or more major life activities;
  • Has a record of such impairment; or
  • Is regarded as having such impairment.

Although the regulations have not been amended to reflect use of the term “disability” instead of “handicap,” cases under Section 504 generally use the term “disability,” as used in the Americans with Disabilities Act of 1990. The Americans with Disabilities Amendments Act of 2008 defines the term “disability” and requires that the same definition apply to Section 504 of the Rehabilitation Act of 1973. These amendments define “disability” as:

  • A physical or mental impairment that substantially limits one or more major life activities of such individual;
  • A record of such an impairment; or
  • Being regarded as having such impairment.

Physical or Mental Impairment - Section 504 regulations define a physical or mental impairment as:

  • Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito‑urinary; hemic and lymphatic; skin; and endocrine; or
  • Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Record of Impairment - Section 504 regulations indicate this means the individual:

  • Has a history of having such an impairment, or
  • Has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

Perceived as Having an Impairment - Section 504 regulations indicate this means the individual:

  • Has a physical or mental impairment that does not substantially limit major life activities but that is treated by the school as being substantially limiting;
  • Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
  • Has no physical or mental impairment, but is treated by a recipient as having such an impairment.

The ADAAA amendments further clarify the definition for both the ADA and Section 504. An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to discrimination prohibited by the ADA or Section 504 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.

Major Life Activity

Current Section 504 regulations define “major life activities” as functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The definition of disability under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) adds to the list, as indicated below.

Added by ADAAA

  • Eating
  • Sleeping
  • Standing
  • Lifting
  • Bending
  • Learning
  • Reading
  • Concentrating
  • Thinking
  • Communicating
    • The operation of a major bodily function, including functions of the following organs or systems:
    • Immune system
    • Normal cell growth
    • Digestive
    • Bowel
    • Bladder
    • Neurological
    • Brain
    • Respiratory
    • Circulatory
    • Endocrine
    • Reproductive

Added in ADAAA Employment Regulations

  • Sitting
  • Reaching
  • Interacting with others
  • The operation of a major bodily function, including functions of the following organs or systems:
    • Special sense organs and skin
    • Genitourinary
    • Cardiovascular
    • Hemic
    • Lymphatic
    • Musculoskeletal
    • The operation of a major bodily system includes the operation of an individual organ within a body system.

For additional information see Appendix G, Question 6.

The examples of major life activities in the Section 504 regulatory provisions, at 34 C.F.R. § 104.3(j)(2)(ii), predate the Amendments Act, and are not exhaustive. Because the definition of disability in the ADA applies to Section 504, all the examples of major life activities listed in the Amendments Act also constitute major life activities under Section 504.

Enforcement

In school districts, Section 504 is enforced by the Office for Civil Rights (OCR) of the United States Department of Education. OCR investigates complaints, conducts periodic compliance reviews in selected districts and provides technical assistance to those requesting assistance. There are twelve regional offices located throughout the nation. Kansas is part of Region VII, with offices located in Kansas City, Missouri. The OCR Case Processing Manual is available on-line at www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.

A complaint to OCR must be filed, in writing, within 180 days following the alleged violation. The manual defines a complaint as “a written or electronic statement to the Department alleging that the rights of one or more persons have been violated and requesting that the Department take action.” OCR does not investigate all complaints. Sometimes it seeks to resolve complaints through an early resolution mediation process.

In most cases, after OCR initially attempts to bring the school district into voluntary compliance through negotiation of a corrective action agreement. If complaints cannot be resolved in this manner, OCR may initiate administrative proceedings to terminate Department of Education financial assistance or refer the case to the Department of Justice for judicial proceedings.

In addition, an individual may file a private lawsuit, alleging discrimination, against a school district under Section 504. The Section 504 regulations do not require exhaustion of OCR administrative complaint procedures before filing a private lawsuit. However, exhaustion of administrative remedies may be required under IDEA. (See Appendix F, Question 1 and Question 5)

Retaliation

Acts of retaliation against an individual for exercising rights or filing a complaint under Section 504 are strictly prohibited. A school district cannot intimidate, threaten, coerce, or discriminate against any individual or interfere with their exercise of any right or privilege secured by Section 504. Retaliation is also prohibited by school district policies.

In April 2013 the Office for Civil Rights issued a “Dear Colleague” letter addressing the issue of retaliation. The letter clarifies the basic principles of retaliation law and describes OCR’s methods of enforcement. A copy of the letter is included in Appendix Q.

Remedies

Ultimate consequences for violation of Section 504 rights may include payment of compensatory damages, tuition reimbursement, compensatory education, payment of attorney fees, and/or loss of federal funds. Monetary damages are generally not available for violations of the right to a free appropriate public education under IDEA, but may be available under Section 504, if the standard for providing a free appropriate public education under Section 504 is violated. Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008); A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3d Cir. 2007) (holding that money damages are available under Section 504); Sellers v. School Bd. of the City of Manassas, 141 F.3d 524 (4th Cir. 1998). Additionally, monetary damages are available in discrimination and harassment actions brought under Section 504.

+ Chapter 2-Program Accessibility

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Section 504 Handbook

Chapter 2
Program Accessibility

Section 504: Subpart C—Program Accessibility
Discrimination Prohibited 34 CFR 104.21
Existing Facilities 34 CFR 104.22
New Construction 34 CFR 104.23
Accessibility Standards

Section 504 requires that all programs and activities of the school district be accessible to individuals with disabilities. This includes not only students and staff, but also members of the community, parents and others who come to school or school activities for plays, concerts, conferences, sporting events and a variety of other purposes. The requirement applies not only to classrooms but media centers, computer labs, parking lots, walkways, playgrounds, rest room facilities, auditoriums, cafeterias, gymnasiums, swimming pools, and water fountains. However, it is the program, not a specific room which must be accessible. See Lee County (VA) Pub. Schs., 68 IDELR 26 (OCR 2016).

A district is not required to make structural changes to an existing building if accessibility can be achieved in other ways. The ADA mandates, however, that any new construction as well as alterations to existing facilities must be designed and constructed as to be “readily accessible and useable.” Again, the intent of the law is to ensure that individuals with disabilities are able to access school services, regardless of their disability.

Unless it is related to a denial of FAPE, exhaustion of the IDEA's procedures is not required for a Section 504 or ADA accessibility claim. Fry v. Napoleon Community Schools, 580 U.S., ___, 137 S.Ct. 743 (2017). Exhaustion of the IDEA administrative procedures is unnecessary where the essence of the plaintiff's suit is "something other than the denial of the IDEA's core guarantee of a FAPE."

Courts have reached conflicting conclusions on the issue of whether there is a private right of action exists to challenge facility design defects under Section 504 or the ADA. In Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016), the court noted there is a distinction between facilities and a public service, program or activities. The court concluded facilities are not a service within the meaning of the ADA, and an employee could not bring a private cause of action based on facility design defects. The 5th Circuit reached an opposite result in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011), holding a private right of action exists to enforce Title II and the Rehabilitation Act to the extent they would require a city to make reasonable modifications to newly built and altered sidewalks.

Section 504: Subpart C—Program Accessibility

Discrimination Prohibited 34 CFR 104.21

A person with a disability cannot be excluded from participation or subjected to discrimination because a school district’s facilities or programs are inaccessible or unusable by individuals with disabilities.

Existing Facilities 34 CFR 104.22

Facilities which were in existence at the time Section 504 regulations were finalized did not need to be made accessible, but the overall programs and activities of the district must be accessible and usable by individuals with disabilities. This can be achieved through redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, and methods which fall short of remodeling old facilities to make them totally accessible to individuals with disabilities. The methods chosen should serve persons with disabilities in the most integrated setting appropriate.

Schools are required to make structural changes in existing facilities only if other methods do not effectively allow access for individuals with disabilities.

At the time the Section 504 regulations were finalized, and again when the ADA regulations were finalized, schools were required to develop transition plans to ensure accessibility.

New Construction 34 CFR 104.23

New construction must be designed and constructed, in compliance with federal accessibility standards, to be readily accessible and usable by individuals with disabilities. When altering existing facilities through remodeling or additions, to the maximum extent feasible, schools must try to ensure the altered portion of the facility is accessible. This may include making parking lots, sidewalks, doors, hallways and other areas leading to the altered area accessible.

For additional information, see the FAQ about Disability Discrimination on the US Department of Education website at ed.gov/about/offices/list/ocr/frontpage/faq/disability.html#disaccsvc1

Accessibility Standards

A facility renovated before March 15, 2012, must comply with the UFAS, 1991 ADA Standards or 2010 ADA Standards. Renovations that occur on or after March 15, 2012, must comply with the 2010 ADA Standards.

For existing facilities—i.e., those built before June 3, 1977 when the Section 504 regulations for new construction went into effect—a district may use several options to ensure program accessibility, including:

  • Reassigning classes, activities or other services to accessible facilities;
  • Acquiring or redesigning equipment to make a facility accessible;
  • Assigning an aide; or
  • Remodeling facilities so they meet current accessibility standards.

In addition to program accessibility, districts should be aware of and address compliance concerns the accessibility of:

  • Common interior areas such as restrooms, cafeterias and gymnasiums;
  • Exterior playgrounds, parking lots, sidewalks, pathways and ramps;
  • Entrances and interior doors;
  • Alarms; and
  • Elevators or other lifts.

Finally, the school must provide notice of accommodations that are available. A school that has made its facilities totally accessible may be out of compliance with Section 504 simply because it lacks signage regarding the availability of such features.

Cases on Point

New Construction must comply with accessibility guidelines for new construction.
  • Constellation (OH) Community Schools, 48 IDELR 166 (OCR 2007). An Ohio district believed it was complying with federal accessibility guidelines when it installed an elevator in a three-story charter school, but that did not allow it to avoid liability for violating Section 504. OCR concluded that the new elevator failed to meet compliance standards because it was too small for students using wheelchairs and had doors that had to be operated manually. OCR explained that the elevator, installed in the summer of 2001, failed to meet either the UFAS or ADAAG guidelines for new construction.
  • Spieler v. Mt. Diablo Unified School District, 2007 WL 1795701, 48 IDELR 188 (N.D. Cal. 2007). The district was required to replace an engineered wood fiber surfacing with rubberized surfacing on its renovated playground.
All Programs and Services must be accessible.
  • Monticello (KY) Independent Schools District, 48 IDELR 225 (OCR 2006). Although an elementary school’s parking lots, entrances and classroom doors complied with federal accessibility guidelines, OCR concluded that a Kentucky district violated Section 504 by failing to provide accessible elevators and restrooms.
Notice may be required; post signs to give notice of accessible seating, entrances, etc.
  • Scott County (KS) U.S.D. No. 466, 47 IDELR 16 (OCR 2006). The district installed a ramp at one entrance to an elementary school’s cafeteria, designated handicapped parking spaces, and installed a wheelchair lift in its administration building, it violated Section 504 by failing to post signage notifying patrons of the availability of these options and failed to provide instructions for their use.
  • Water Valley (MS) School District, 48 IDELR 291 (OCR 2007). Although a Mississippi district offered an acceptable alternative to bleacher seating by allowing students with mobility impairments to watch events from a gymnasium’ stage, it violated Section 504 and the ADA when it failed to post signs regarding the availability of alternative seating.
  • Welch (OK) Public Schools, 46 IDELR 261 (OCR 2006). Although the district’s gymnasium had the minimum number of aisle seats without fixed armrests required by the ADA accessibility guidelines, the district violated Section 504 by failing to post notice about the availability of those seats at the ticket booth and to identify the seats with appropriate signage.
Alterations to existing facilities are not required if an adequate alternative is available.
  • Knox County (TN) School District, 62 IDELR 153 (OCR 2013), a district's reassignment of a student's classes and other activities to an accessible floor in the school building or assigning an aide or providing accommodations to help the student access classes and activities resolved OCR's accessibility concerns.
  • Beaumont (TX) Independent School District, 57 IDELR 142 (OCR 2011). The district made classrooms with rounded door knobs accessible through a policy which required classroom doors to be kept open during passing periods between classes.
  • North Kansas City (MO) School District, 52 IDELR 271 (OCR 2009). Although the district could not make seating in a gymnasium built in 1949 accessible for wheelchair seating, it achieved compliance with Section 504 by holding its basketball games in a facility with wheelchair seating.
  • Malone (NY) Central School District, 48 IDELR 196 (OCR 2006). The fact that a high school’s track and field facility was not accessible from the school’s main building did not make a New York district liable for violating Section 504 where the district offered an adequate alternative for students with mobility impairments by providing bus service to the track and field facility.
  • Pemberton (NJ) Twp. School District, 46 IDELR 197 (OCR 2006). The district resolved its Section 504 compliance issue by relocating a student’s band and music classes to the first floor of the school rather than the third floor.
Restrooms-At least some restrooms must be readily accessible and usable by individuals with disabilities.
  • Kirtland (OH) Local Schools, 52 IDELR 299 (OCR 2009. Where the access lift to the “accessible” bathroom on the lower floor was often blocked, the bathroom was not readily accessible for students with disabilities.
  • Monticello (KY) Independent Schools District, 48 IDELR 225 (OCR 2006). Renovated restrooms failed to meet accessibility standards because grab bars were too low, the force required to open the stall doors was too much, and uninsulated drain pipes posed a risk of injury. See also, Hartland (CT) Public School District, 51 IDELR 53 (OCR 2008)(improper placement of toilets, grab bars, mirrors, sinks, and soap dispensers);
  • Pleasant Township (IN) School Corporation, 49 IDELR 262 (OCR 2007)(sink pipes uninsulated; grab bars, mirrors, and stalls failed to meet the applicable standards for height, width, and placement).
Entrances and Interior Doors including doors on elevators or lifts, should have accessible handles and cannot require excessive force to open. Alternative options must provide equal access.
  • Charlotte Valley (NY) Central School District, 67 IDELR 160 (OCR 2015), OCR determined that because a school's entrance was locked at all times and did not have a curb ramp, the school was inaccessible in violation of Section 504 and Title II. The district agreed to make structural changes to address OCR's concerns.
  • Buffalo (NY) City School District, 46 IDELR 111 (OCR 2006). Equal access was not provided where the main entrance allowed visitors to be buzzed in within seconds of communicating with office staff, but the accessible entrance required visitors to ring a doorbell and wait for an employee to open the door.
Elevators and Lifts-Accessibility complaints involving elevators and lifts suggest that districts should pay close attention to the internal dimensions of the elevator or lift, the ease of use of the controls, and the availability of the elevator or lift when needed.
  • Champion (OH) Local Schools, (OCR 2014), the lack of wheelchair lifts in a century-old school building denied students with disabilities access to their educational programs. OCR concluded that the district would need to construct at least three chair lifts throughout the school and implement transition plans to accommodate students with mobility impairments.
  • Ringwood (NJ) Public School District, 114 LRP 41429 (OCR 2014). The school could not establish a two-story elementary school was fully accessible to children with mobility impairments merely by alleging that it had a wheelchair lift. The lift did not fully address accessibility because children were unable to enter, operate, or exit the lift without assistance. In a resolution agreement, the district agreed to make the school accessible through alternative means or structural modifications.
  • Mahopac (NY) Central School District, 57 IDELR 112 (OCR 2011), The interior doors leading to each of the three lifts in a New York high school required excessive force to open. See also, Faquier County (VA) Public Schools, 53 IDELR 29 (OCR 2008).
  • Lenawee Intermediate School District,63 IDELR 300(SEA MI 2014). A school district’s failure to transport a student with a damaged wheelchair on a wheelchair lift did not violate the student’s rights. While school districts have a duty to implement all provisions of a student's IEP, they also must comply with state and local transportation safety policies. Parents were responsible for the wheelchair's maintenance, repairs, and safe operation.
Assembly Areas-Accessibility complaints about gymnasiums, stadiums, and other assembly areas involve access routes or the lack of wheelchair seating.
  • In New York City (NY) Department of Education, 115 LRP 6299 (OCR 2014), OCR determined that a school auditorium was inaccessible to individuals with disabilities due to the absence of an entrance ramp. Because the building was constructed prior to June 3, 1977, OCR opined that the district could make school events and assemblies accessible by redesigning the auditorium's equipment or by reassigning programs and services to accessible locations.
  • Martin County (FL) School District, 56 IDELR 241 (OCR 2010). A Florida district made an elementary school cafeteria accessible to children in wheelchairs with the installation of new tables.
  • Wolfe City (TX) Independent School District, 52 IDELR 234 (OCR 2009). The cafeteria entrance could only be accessed by stairs.
  • Pearl River (NY) School District, 51 IDELR 168 (OCR 2008). The district discriminated against individuals with mobility impairments by requiring them to access a gymnasium constructed in 1966 using an uncovered outdoor pathway.
Playgrounds-The type of play equipment, the amount of play equipment provided, the path to the playground and the type of ground covering are common issues in complaints about the accessibility of playgrounds.
  • Bladen County (NC) Schs., 68 IDELR 53 (OCR 2016). The school district had a legitimate, nondiscriminatory reason for ensuring an accessible swing it purchased was safe and would not interfere with the student's PT goals before allowing the student to use the equipment.
  • In Clover (SC) School District, 66 IDELR 291 (OCR 2015), OCR found that a playground, which lacked woodchips on its floor and had an elevated play area, was inaccessible according to the ADA accessibility standards. The district agreed to evaluate all play areas and ensure that these areas are made complaint with Section 504 and Title II.
  • East Clinton (OH) Local Schs., 66 IDELR 146 (OCR 2015) A school playground did not comply with applicable accessibility standards because students with mobility impairments had a difficult time traversing areas which contained pea gravel.
  • Cartwright (AZ) Elem. Sch. Dist., 51 NDLR 34 (OCR 2014) District failed to make its playgrounds, baseball fields, soccer fields, and outdoor seating areas accessible to students with mobility impairments.
  • El Paso (TX) Indep. Sch. Dist., 114 LRP 31026 (OCR 2014). The 2010 ADA Standards for Accessible Design clarify that a "play area" meets the definition of "facility" under the Section 504 and Title II regulations. The 2010 ADA Standards for Accessible Design define a “play area” as "a portion of a site containing play components designed and constructed for children." A "play component" is defined as “an element intended to generate specific opportunities for play, socialization, or learning. Play components are manufactured or natural; and are stand-alone or part of a composite play structure." The applicable requirements for play areas and play components are found in Section 1008 of the 2010 ADA Standards for Accessible Design.
  • Shelby County (TN) School District, 57 IDELR 263 (OCR 2011). A Tennessee district brought a playground into compliance with ADA Guidelines by replacing a shredded rubber surface with a smooth, poured-in-place surface and adding six new play stations to accommodate students with mobility impairments.
  • Sheepscot Valley (ME) Regional School Unit #12, 56 IDELR 144 (OCR 2010). While some of the playground was accessible, because the swings were in a hilly area with a steep incline and the dirt and pea gravel surfaces under the swings were not firm or slip-resistant, OCR found that the ground-level components were not readily accessible to children with mobility impairments.
  • Atlanta (GA) City School District, 53 IDELR 202 (OCR 2009). Even though many playground components were accessible, none of the swings on an elementary school playground were accessible to students with mobility impairments.
Parking lots generate complaints about the number of accessible spaces, the location of the spaces and their availability when needed.
  • Landry Parish (LA) Schools, 67 IDELR 129 (OCR 2015). OCR concluded a district needed to restripe and resurface two high school parking lots to make them accessible to students with disabilities. School districts still had a choice between the UFAS and the ADAAG for new construction, even though the ADAAG was updated in 2004.
  • Charlotte Valley (NY) Central Sch. Dist, 67 IDELR 160 (OCR NY 2015). The district’s parking lot that was restriped in 2014 and the playground that was installed in 2000-01, were subject to the "new construction" standards. OCR noted the following deficiencies: 1) lack of pole signage; 2) lack of aisles for accessible spaces; 3) lack of spaces that were van accessible; and 4) lack of a continuous route to the playground equipment.
  • School District of Upper Moreland Township (PA), 50 NDLR 169 (OCR 2014). A district may open itself up to liability for disability discrimination if it allows regular vehicles to park in accessible parking spaces.
  • Richmond (MI) Community Schools, 52 IDELR 168 (OCR 2009). A renovated middle school parking lot had too few accessible spaces and relocation of the accessible spaces greatly increased their distance from the school’s front entrance.
  • Cypress-Fairbanks (TX) Independent School District, 45 IDELR 284 (OCR 2005). The elementary school had a sufficient number of accessible parking spaces whose dimensions and slopes conformed to the ADA Guidelines. The district also promptly responded to complaints about illegal parking in accessible spaces.
Sidewalks, ramps and other travel pathways should be unobstructed, meet accessibility guidelines and provide equal access.
  • School Union 49 (ME), 51 IDELR 113 (OCR 2008). By adopting an "across the day" (rather than morning only) snow removal policy, the district ensured that the student could travel between classroom buildings.
  • Union County (GA) Schools, 51 IDELR 226 (OCR 2008). A sixth-grader with a mobility impairment did not have equal access to school buildings where the school’s access ramps failed to meet the federal accessibility guidelines and the accessible pathway exposed the student to the elements.
  • Clark County (NV) School District, 51 IDELR 258 (OCR 2008). The bumps and breaks in a middle school’s concrete pathways made those pathways inaccessible to individuals with mobility impairments
  • Bowie (TX) Independent School District, 46 IDELR 289 (OCR 2006). The district needed to construct an accessible route that connected all of its new softball field’s entrances with all other buildings, facilities, elements, and spaces located on the same site. OCR also required accessible disabled parking, sidewalks, concession stands, and restrooms.
Alarm Systems-Consider the needs of students with visual and hearing impairments when installing alarm systems.
  • Detroit (MI) Public Schools, 54 IDELR 234 (OCR 2009). Lack of a visual warning system raised compliance concerns. The school’s system of informing deaf students of emergencies was inadequate because it did not address situations in which students were alone outside the classroom, or situations in which they were accompanied by staffers who did not know sign language.
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Chapter 3
Preschool, Elementary & Secondary Programs:
A School District’s Responsibilities

School District Responsibilities
Child Find
104.32 Location and notification
Students in Private Schools
Compliance Coordinator Responsibilities

The intent of Section 504 is to provide students with disabilities equal access to educational programs, services, and activities. Students with disabilities may not be denied participation in school programs or activities simply because they have a disability. To ensure discrimination does not occur, Section 504 requires school districts to assume certain responsibilities, including appointing a coordinator in the district to oversee compliance with Section 504 obligations. The responsibilities of the school and this coordinator, along with other key players are discussed below.

School District Responsibilities

The Section 504 regulations require the school district to:

  • Attempt to identify and locate all children with disabilities on an annual basis;
  • Provide a “free and appropriate public education” to all students with disabilities;
  • Ensure that students with disabilities are educated with non-disabled students to the maximum extent appropriate;
  • Establish nondiscriminatory evaluation and placement procedures;
  • Establish procedural safeguards, including notice of proposed actions and the right to request a due process hearing; and
  • Ensure students with disabilities the equal opportunity to participate in nonacademic and extracurricular services and activities.

In addition, the district must designate an employee who will be responsible for ensuring compliance with Section 504 regulations. This person is usually known as the Section 504 Compliance Coordinator. The district’s annual notice to parents should provide the name and telephone number of the Section 504 Coordinator. The district must also develop complaint policies and procedures for parents, students, and employees.

For larger school districts, or districts with multiple buildings, it is probably best to designate a building coordinator at each school building. For convenience, Appendix A provides a form for keeping a list of the current compliance coordinators and their contact information.

Child Find

“Child find” refers to the requirement that districts annually identify and locate all children with disabilities between the ages of 3 and 22 who are residents of the school district. “Child find” is an ongoing process and includes those children attending private, parochial, and home schools. Many districts provide notice to parents of the district’s obligation to serve disabled children with their back-to-school packet mailed home at the start of each new school year. There are other methods districts should consider:

  • Post announcements in public locations
  • Use the news media; announce in the local newspapers
  • Distribute announcements and referral forms to local day care providers, public and private preschools, and private and parochial schools
  • Send letters to local health care providers requesting their assistance
  • Send announcements and referral forms to community agencies
  • Train school staff in the district’s Section 504 and special education referral process.

104.32 Location and notification

A recipient that operates a public elementary or secondary education program or activity shall annually:

  • Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and
  • Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient’s duty under this subpart.

Students in Private Schools

A school district must provide a free, appropriate public education, as defined by Section 504, to all students with disabilities protected by Section 504. As long as the school district has offered a free, appropriate public education in its public facilities, it is not obligated to provide Section 504 services or accommodations to students whose parents choose to enroll them in private schools.

Parents of a student enrolled in a private school may request a Section 504 evaluation by a public school district. The district of the student’s residence, not the district in which the private school is located, has the duty to evaluate if such evaluation is requested. West Seneca (NY) Sch. Dist., 53 IDELR 237 (OCR 2009).

Compliance Coordinator Responsibilities

The school district must appoint an individual to serve as the district’s Section 504 Compliance Coordinator. Larger school districts may also appoint compliance coordinators in each school. Additionally, within the school, one employee will probably be named the case manager for an individual student. The responsibilities of each of these individuals are outlined below.

School District Section 504 Compliance Coordinator should:

  • Understand the requirements and intent of Section 504 regulations;
  • Address system-wide issues for 504 compliance;
  • Establish and monitor Section 504 referral, identification, and review process and procedures, including annual notice;
  • Establish protocols with building coordinators for identifying students who may be eligible under Section 504;
  • Assist with transition of Section 504 students to new schools;
  • Provide technical assistance to building personnel;
  • Maintain data and prepare annual compliance reports;
  • Develop awareness materials and workshops for school staff and families;
  • Implement the Section 504 complaint procedures and impartial hearing procedures;
  • Conduct self-reviews of policies, practices and procedures for Section 504 compliance;
  • In conjunction with the school attorney, serve as the district liaison to the Office of Civil Rights.

School Section 504 Compliance Coordinators should:

  • Participate in district-wide training on Section 504 to ensure understanding of the requirements of the law and application of district-wide policies and procedures;
  • Act as a contact person for parents, staff and students when questions about Section 504 arise;
  • Participate on or be in communication with the building SIT committee, the school nurse or other school personnel to help identify students who may need to be evaluated under Section 504;
  • Ensure staff are using current 504 forms and following established procedures for notice to parents, evaluation, identification, placement and review;
  • Provide data, as requested, to the District Section 504 Compliance Coordinator;
  • Ensure information about Section 504 students is accurately recorded in school district databases and check this information for students transferring into the school;
  • Coordinate transition of 504 student transferring into and out of the school;
  • Act as or ensure a case manager is designated for each student referred for evaluation or identified as eligible under Section 504.

A Case Manager may, among other things:

  • Send notices and schedule meetings regarding evaluation, placement or review of services;
  • Gather data and other relevant information for Section 504 meetings;
  • Ensure 504 documents are written and that copies are provided to parents and all relevant staff members;
  • Ensure documents are placed and status is appropriately recorded in any electronic student information system;
  • Provides information and/or training on 504 plan requirements to all teachers or staff responsible for implementation of the plan;
  • Monitor implementation of the 504 plan and addresses issues or concerns that arise;
  • Schedule periodic review of the plan on at least an annual basis.
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Chapter 4 Preschool, Elementary & Secondary Programs
Parental Rights & Procedural Safeguards

Parental Rights
Notice of Parental Rights
Procedural Safeguards
Notice
Examining Records
Impartial Hearing
Review Procedure

Parental Rights

Section 504 provides certain parental rights. Under Section 504, parents have the right to:

  • Have their child take part in, and receive benefits from public education programs without discrimination based on a disability;
  • Have the school advise them of their rights under federal law;
  • Receive written notice with respect to identification, evaluation, or placement of their child;
  • Have their child receive a free appropriate public education, including the right to be educated with other students without disabilities to the maximum extent appropriate and the right to have an equal opportunity to participate in school and school-related activities;
  • Have their child educated in facilities and receive comparable services to those provided students without disabilities;
  • Have their child receive accommodations under Section 504 of the Rehabilitation Act of 1973 if s/he qualifies;
  • Have evaluation, educational, and placement decisions made based upon a variety of information sources, and by individuals who know their child, the evaluation data, and placement options;
  • Have transportation provided to a school placement setting at no greater cost than would be incurred if the student were placed in a program operated by the school;
  • Give their child an equal opportunity to participate in non-academic and extracurricular activities offered by the school;
  • Examine all records relating to decisions regarding their child’s identification, evaluation, educational program, and placement;
  • Obtain copies of educational records at a reasonable cost unless the fee would effectively deny them access to the records;
  • Receive a response from the school to reasonable requests for explanations and interpretations of their child’s records;
  • File a complaint with the Section 504 Compliance Coordinator, under the district’s complaint or grievance procedures;
  • Request mediation to settle disputes arising out of any decision about your child’s identification, evaluation, educational program or placement;
  • File a complaint with the Office for Civil Rights of the United States Department of Education; and
  • Request an impartial due process hearing to settle disputes arising out of any decision about their child’s identification, evaluation, educational program or placement. Parents and their child may take part in the hearing and have an attorney represent them in the process.

Notice of Parental Rights

It is advisable to publish the Notice of Parent Rights document in a student or parent handbook or other document that is distributed annually to students and parents at enrollment. Notices may also be published on the school district website.

A sample of a Notice of Parental Rights document is included in the forms in Appendix B of this handbook. It is recommended that this document be provided to any parent who requests a Section 504 evaluation. The document should also be provided to parents when the annual meeting to review Section 504 services is held.

Procedural Safeguards 104.36

A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.

A school district must design and implement a system of procedural safeguards that apply any time a district takes any action regarding the identification, evaluation, or educational placement, including services and accommodations provided, of a student protected by Section 504.  The procedural safeguards must include:

  • Notice;
  • The opportunity of the parent to examine relevant education records;
  • The opportunity for an impartial hearing, including parent participation and representation by counsel, if desired; and
  • A review procedure.

The procedural safeguard requirements under Section 504 are not as extensive as those required under IDEA. For students protected by both IDEA and Section 504, compliance with the procedural safeguard provisions of IDEA constitutes compliance with Section 504 requirements.

Notice

While the regulations do not specifically require written notice under section 504, OCR has generally required that written notice of parent rights be provided in writing. Additionally notice of any district proposed actions regarding the identification, evaluation, or educational placement, including services and accommodations provided, of a student protected by Section 504, should be provided to the parents in writing.

Examining Records

The right to examine records under Section 504 may be broader than the rights of parents under the Family Educational Rights and Privacy Act. The FERPA requirement that parent have access to educational records of their student applies to “educational records,” while the Section 504 language references “relevant records.” In Indian Prairie (IL) School Dist., 51 IDELR 53 (OCR 2011), OCR concluded the district violated Section 504 by taking several months to provide the parent with an acoustical evaluation of the child’s classroom. This type of report would most likely not be considered an educational record.

Impartial Hearing

When the parents and the school cannot agree about the identification, evaluation, educational program or placement of a student with a disability under Section 504, parents are entitled to a due process hearing to resolve the issues.

The regulation requires only the right of the parents to be present and the right to representation. OCR has indicated a due process hearing procedure does not have to allow for cross-examination of witnesses or recording by a court reporter. Houston (TX) Independent School District, 25 IDELR 163 (OCR 1996). The school can allow for cross-examination of witnesses and provide additional rights if it chooses to do so. The school should use procedures that allow for a full and fair hearing of the issues.

Section 504 does not specify who will conduct the hearing or how the hearing officer will be chosen. OCR has indicated the hearing officer should not be an employee of the district. Additionally, school board members may not serve as the impartial hearing officer. Mathews County (VA) Pub. Schs., 114 LRP 42768 (OCR 2014). Many districts provide that the hearing will be before an impartial hearing officer selected by the board of education. A state trained due process hearing officer may be willing to serve in this capacity.

Ensure your documents indicate how requests for a due process hearing should be submitted in writing to the school district. Generally, these requests should be directed to the District Compliance Coordinator. If a parent submits a request for a due process hearing to a principal or building coordinator, that person should forward the request to the District Coordinator.

Upon receipt of a request for hearing, the Section 504 Coordinator secures the services of an impartial hearing officer, approved by the board. Your local procedures should identify the timeline for holding the hearing and notifying parents of the time and place for the hearing.

Once a hearing officer is hired, the coordinator should provide parents with notice of the following prior to the date set for the hearing:

  • A statement of the time and place where the hearing will be held.
  • A statement that relevant student records are available for examination.
  • A short and plain statement of the matters asserted.
  • A statement of the rights that will be afforded at the hearing:
  • The right to be represented by counsel; and
  • The right of the student and the parents to be present at the hearing;

The following are rights typically afforded to students in suspension or expulsion hearings. You may provide these rights in Section 504 hearings, but you are not required to do so.

  • The right to confront and cross-examine witnesses called by the school district at the hearing;
  • The right to present their own witnesses;
  • The right to have an orderly hearing; and
  • The right to a fair and impar­tial decision based on the evidence presented at the hearing.

The hearing officer presides over the hearing, swearing in witnesses, and determining whether the evidence presented should be admitted. The rules of evidence do not apply to these proceedings, but any evidence offered by either party should be relevant to the issues to be decided.

Because the proceeding may result in an appeal, it is best practice to record the hearing. If appealed, the recording may be provided to the board, or ultimately a court.

The hearing officer’s decision should be reduced to writing and include the date, findings of fact and conclusions of law. The decision should be provided to the parents and to the school district representative within an established time frame. The decision of the hearing officer is binding on all parties concerned, subject to the review procedure established by the school district.

Review Procedure

Many school districts allow a parent dissatisfied with the result of the due process hearing to appeal the decision to the board of education or to another appointed appeal officer. The district’s procedures should establish to whom a written notice of appeal should be provided and in what time frame. Procedures should also define the timeline for holding the appeal hearing and the rights that will be afforded at the hearing. Generally, the board or the appeal officer should issue a written opinion in within a short time frame after the hearing concludes. The decision of the board or review officer in this matter is final but is subject to appeal to a Kansas district court pursuant to K.S.A. 60-2101(d), which allows for appeal from the decision of a school board.

(For additional information, see Appendix F, Questions 42-47)

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Chapter 6
Preschool, Elementary & Secondary Programs
Free Appropriate Public Education & Placement

Free Appropriate Public Education
Related Services
Aids
Accommodations
Accommodations in Accelerated Courses
Modifications
Writing a 504 Plan
Violating the Right to a Free Appropriate Public Education
Placement—Implementing the Section 504 Plan
Accommodation Examples for Specific Disabilities

Free Appropriate Public Education

Section 504 requires school districts to provide eligible students with a “free appropriate public education.” Under the Section 504 regulations, “appropriate education” is defined as “the provision of regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met” and are developed in compliance with Section 504 procedural requirements.

“Free” means that the services are provided without cost to the parent. However, parents can be required to pay the same fees any other parent pays for participating in the service. If a school district charges $25 for participation in it’s after school program, it can charge the parents of the student with a disability the fee. It cannot require the parent to pay for the nurse who is present to monitor the student’s health needs.

When elementary and secondary education services are at issue, Section 504 is not limited by a reasonable accommodation requirement. OCR Staff Memorandum, 16 IDELR 712 (OCR 1990). In order to ensure the needs of a student with a disability are met as adequately as the needs of students who do not have a disability, schools may need to provide:

  • Special education and related services;
  • A related service even though special education is not necessary;
  • Accommodations and classroom modifications;
  • Aids;
  • Modifications to district policies and procedures;
  • Other services or modifications that put the student on equal footing with nondisabled peers.

Whenever a student needs or is believed to need special education, IDEA procedures should be followed. Compliance with IDEA meets Section 504 requirements. No student should have both an IEP and a Section 504 plan. Any services, accommodations or modifications a special education student needs should be considered in the development of the student’s IEP.

Related Services

“Related services” is a term that is not specifically defined in the Section 504 regulations, although it is defined in the Individuals with Disabilities Education Act. The term is used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic and evaluation services and transportation. School health services, such as administration of medication or other services provided by a school nurse or trained health aide, could also be considered an eligible related service, depending on the student’s needs. Students who need this type of service to be on equal footing with other students, whether or not they need special education, may qualify for a related service under Section 504. When provided under Section 504, the service is funded out of the general fund, not special education funds.

(For more information, see Appendix G, Question 8.)

Aids

Again, “aids” are not defined in Section 504, but recent OCR opinions use the term. IDEA speaks of supplementary aids and services, which include any type of aid, support or service, provided in the regular classroom or other learning environment, which allows a student to be educated in the least restrictive environment to the maximum extent appropriate. The Americans with Disabilities act requires public entities to provide “auxiliary aids and services.” Some examples of such services are contained in the box on the next page.

Examples of Auxiliary Aids and Services

  • Qualified interpreters on-site or through video remote interpreting (VRI) services;
  • Notetakers;
  • Real-time computer-aided transcription services;
  • Written materials;
  • Exchange of written notes;
  • Assistive listening devices or systems;
  • Open and closed captioning, including real-time captioning;
  • Videotext displays;
  • Accessible electronic and information technology; Qualified readers;
  • Taped texts;
  • Audio recordings;
  • Brailed materials and displays;
  • Screen reader software;
  • Magnification software;
  • Optical readers;
  • Secondary auditory programs (SAP);
  • Large print materials;
  • Other effective methods of making aurally or visually delivered materials available to individuals with hearing or vision impairments.

Accommodations

Accommodations are program adjustments made to remove disability-related barriers to a student’s full participation in school, including nonacademic and extracurricular activities, such as field trips, athletics, and assemblies. Accommodations are made in order to provide a student equal access to learning and equal opportunity to demonstrate what he or she knows. Accommodations should not alter or lower the standards of the coursework or standards required for participation in extracurricular activities. It is important that accommodations be:

  • Disability specific;
  • Necessary, not merely helpful;
  • Individualized;
  • Documented;
  • Communicated to all individuals involved.

Types of Accommodations

Accommodations typically fall within the following categories:

  • Environmental strategies;
  • Organizational strategies;
  • Behavioral strategies;
  • Presentation strategies; and
  • Evaluation methods.

The following examples of accommodations are intended to serve as a starting place for 504 teams designing accommodation plans that meet a student’s specific needs. The best 504 plans incorporate teacher expertise and available regular education resources. The Student Support Team or General Education Intervention process helps schools identify the resources available to support various student needs. Obviously, the kinds of accommodations schools can provide will vary based on school, level, and other considerations. In each case, the 504 evaluation team must decide the accommodations that will best support a particular student, based on that student’s individual needs.

Sample Accommodations

Environmental Accommodations
  • Physical arrangements of room
  • Preferential seating
  • Lighting adjustments
  • Use of an air purifier
  • Alter location of supplies and materials for easier access
  • Provide a structured learning environment
  • Separate "space" for different types of tasks
  • Possible adapting of non-academic times such as lunch, recess, and physical education
  • Change student seating
  • Utilize a study carrel
  • Alter location or personal or classroom supplies for easier access or to minimize distraction
Behavior Accommodations
  • Provide a behavior plan
  • Provide nonverbal cues
  • Provide frequent feedback
  • Ignore identified inappropriate behaviors
  • Monitor and redirect behaviors
  • Use behavioral management techniques consistently within a classroom and across classes
  • Implement behavioral/academic contracts
  • Utilize positive verbal and/or nonverbal reinforcements
  • Utilize logical consequences
  • Confer with the student’s parents (and student as appropriate)
  • Establish a home/school system for behavior monitoring
  • Post rules and consequences for classroom behavior
  • Put student on daily/weekly progress report/contract
  • Reinforce self-monitoring and self-recording of behaviors
Materials Accommodations
  • Provide alternate formats
  • Use highlighted or underlined reading materials
  • Use a variety of materials including, films, tapes, manipulatives
  • Use technology
Assignment/Organizational Accommodations
  • Break assignments into smaller units
  • Grade for correct answers
  • Allow extra time for completion
  • Use an assignment sheet
  • Model and reinforce organizational systems (i.e. color-coding)
  • Write out homework assignments, check student's recording of assignments
  • Tailor homework assignments toward student strengths
  • Set time expectations for assignments
  • Provide clues like clock faces indicating beginning and ending times
Teaching Strategy Accommodations
  • Use individual or small group instruction
  • Be aware of student’s preferred learning style and provide matching materials
  • Provide frequent breaks
  • Assign a peer tutor or note taker
  • Tape lessons so the student can listen to them again; allow students to tape lessons
  • Use computer-aided instruction and other audiovisual equipment
  • Select alternative textbooks, workbooks, or provide books on tape
  • Highlight main ideas and supporting details in the book
  • Provide copied material for extra practice (i.e. outlines, study guides)
  • Prioritize drill and practice activities for saliency
  • Vary the method of lesson presentation using multi-sensory techniques:
    • lecture plus overhead/board demonstration support;
    • small groups required to produce a written product;
    • large groups required to demonstrate a process;
    • audio-visual (i.e. filmstrips, study prints) methods;
    • peer tutors or cross-age tutors;
    • demonstrations, simulations;
    • experiments;
    • games
  • 1-to-1 instruction with other available adults
  • Ask student to repeat/paraphrase context to check understanding
  • Have a mentor to work with student in an interest area or area of greatest strength
  • Simplify and repeat instructions about in-class and homework assignments;
  • Accompany oral directions with written steps
  • Vary instructional pace
  • Reinforce the use of compensatory strategies, i.e. pencil grip, mnemonic devices
  • Vary kind of instructional materials used
  • Assess whether student has the necessary prerequisite skills.
  • Determine if materials are appropriate to the student’s current functioning levels.
  • Reinforce study skill strategies (survey, read, recite, review)
  • Introduce definition of new vocabulary and review to check for understanding
Testing Accommodations
  • Adjust the length of the test
  • Orally administer the test
  • Provide take-home tests
  • Provide a sample or practice test
  • Provide alternate formats
  • Administer frequent quizzes rather than exams
  • Change the location where the test is administered
  • Limit amount of material presented on a single page
  • Provide tests in segments
  • Provide personal copy of test tools and allow for color-coding/ highlighting
Health Accommodations
  • Administer medication per protocol
  • Modified physical education
  • Allow for absences
  • Ensure privacy
  • Monitor condition
Other Accommodations
  • Group or individual counseling
  • Other agency involvement
  • Disability awareness training for staff and students
  • Disability-specific staff training

Examples of disability-specific accommodations which may or may not be appropriate for all students with the disability are included at the end of the chapter. Again, these examples are intended to be used as a starting place only. Most students will need only some, not all of the suggested accommodations. The Section 504 team must consider how the disability limits the student’s ability to perform a major life activity and individualize accommodations based on the student’s need. Providing too much accommodation can be dangerous, depriving a student of the right to receive an education as much as providing no accommodation.

Accommodations in Accelerated Courses

OCR has rejected the notion that accommodations are not possible in accelerated courses. In its Dear Colleague Letter: Access by Students with Disabilities to Accelerated Programs (OCR 2007)(See Appendix J), OCR recognizes there may be limits to accommodations in this area, but it falls short of providing clear guidance for schools faced with demands to water down the curriculum.

Cases in this area generally involve two issues:

  • Blanket prohibitions on participation of students with disabilities in accelerated programs; and
  • Policies which require students to give up services and accommodations as a condition of enrollment in accelerated courses.

Concluding that accelerated classes are part of a free appropriate public education, OCR has found the practice of allowing 504 accommodations for regular classes, but disallowing them for honors classes, violates Section 504. See Wilson County (TN) Sch. Dist., 50 IDELR 230 (OCR 2008). If a student needs accommodations or related aids and services like texts in Braille, extended time for taking tests or completing homework, a computer for note taking, etc., these accommodations cannot be denied for an accelerated program. However, the DCL does not suggest a student should get additional accommodations for accelerated classes.

In GBL v. Bellevue School Dist. No. 405, 2013 WL 594289, 60 IDELR 186 (W.D. Wash 2013), a student with ADHD and a hearing loss was accepted into a program for highly gifted students. His IEP included 48 accommodations that were applied, but the student asked for additional accommodations when he could not keep up with the rigorous workload. The court indicated the school is not required to make fundamental or substantial modifications to programs or standards, only reasonable accommodations. After the student met his burden of showing the existence of accommodations that would enable him to meet the requirements, the court shifted the burden to the school to show:

  • The requested accommodation would require a fundamental or substantial modification of its program or standards or
  • The requested accommodation, regardless of its reasonableness, would not enable the student to meet the academic standards.

After examining the evidence, the court agreed with the district that a two-hour per night limit on homework would alter the program curricular standards, grading standards and performance expectations. The court agreed that completing homework was essential to the program. The court also found additional time for completing assignments was unnecessary because all of the teachers in the program gave the student full credit, even if an assignment was not handed in in a timely manner.

Modifications

While many modifications may also be classified as accommodations, the most frequent modification requested by Section 504 students is modifications to policies, like attendance policies, where adherence to the policy would penalize the student because of his or her disability.

Cases on Point: Accommodations

District Choice
  • Rylan M. v. Dover Area Sch. Dist., 2017 WL 1862337, 70 IDELR 15 (M.D. Pa. 2017). Districts may choose which accommodations to include in a student's educational program as long as those accommodations provide FAPE. Although parents wanted a medically trained aide after their child with Ehlers-Danlos syndrome fainted in school and had a concussion, the district opted to prevent future incidents by improving the student’s medical protocols and training staff. The student’s physicians did not believe the required an aide.
  • Swanson v. Yuba City School District, 2015 WL 2358629, 68 IDELR 215 (E.D. Cal. 2016), demonstrated that the nurse it chose to provide services to a medically fragile student was qualified and the nurse the parent wanted possessed no unique ability to communicate with or treat the student, the district could select the service provider.
Testing Accommodations
  • Research Triangle(NC) High School, 117 LRP 29315 (OCR 2017). OCR determined that a North Carolina charter school violated Section 504 and Title II when it failed to consider whether a 10th-grader with a degenerating visual condition could have been provided with paper booklets for her state exams.
Lack of Funding
  • Washington State School for the Deaf, 22 IDELR 987 (OCR 1995). Lack of funding does not excuse the failure to provide a free appropriate public education under Section 504.
Categorical Denial of Services for Honors Courses
  • West Windsor-Plainsboro (NJ) Reg’l Sch. Dist., 112 LRP 50373 (OCR 2012). The practice of categorically denying or refusing to consider a particular related aid or service in a particular class violates Section 504. In this case, the district denied students with IEPs in-class support in world language and honors or advanced courses without evaluating them individually.  The district voluntarily resolved the complaint, agreeing to make individual determinations into the need for such services in language or honors courses.
Behavior Intervention Plans
  • Morgan v. Chris L., 106 F.3d 401 (6th 1997). Section 504 requires a district to accommodate a student’s behavioral challenges by developing a Behavior Intervention Plan.  See also Elk Grove (CA) Unified Sch. Dist., 25 IDELR 759 (OCR 1996).

Writing a 504 Plan

Components of the Section 504 Plan

Districts are not required to document agreed upon aids, services and accommodations in a written document, but written documentation is highly recommended. In the absence of documentation, it will be extremely difficult to show OCR that the district is meeting its obligations with regard to Section 504 eligible students.

A 504 plan is a written document detailing the services and accommodations to be provided. The plan generally will include:

  • A description of the disability;
  • A description of how the disability limits one or more major life activities;
  • The basis for determining the disability and its educational impact;
  • Necessary accommodations, aids, services or modifications;
  • A description of the student’s placement [least restrictive environment required];
  • A review or re-evaluation date; and
  • 504 Team members’ names and/or signatures.

Since there are no forms mandated for use, these are just recommended elements that help implementers understand why the plan has been developed and what it strives to address. The written document should help implementers understand the need for the aids, services, accommodations or modifications.

If the district has a form it has developed for an Individualized Health Plan, this may suffice as the Section 504 Plan document, but only if the student has been evaluated in compliance with Section 504 requirements.  Additionally, parents must be given notice of the procedural safeguards under Section 504. See Anaheim City (CA) Sch. Dist., 115 LRP 19319 (OCR 2014) (district provided a student with FAPE by developing an IHP for him after conducting an appropriate Section 504 evaluation); and Union County (NC) Pub. Schs., 64 IDELR 25 (OCR 2014) (although the district provided services to the student pursuant to an IHP, its failure to evaluate her to determine whether she was eligible for services as a student with a disability under Section 504 denied her FAPE).

It is important that teachers be involved in developing the 504 plan. They should provide input regarding the curriculum rigor and requirements and suggest necessary accommodations. It is equally important that the 504 plan be easily implemented and communicated to all school staff involved with the student. Training of staff on Section 504 requirements and their duty to implement accommodations required by the plan may be equally important.

Violating the Right to a Free Appropriate Public Education

When faced with allegations a student is being denied a free appropriate public education under Section 504, OCR looks at the following questions:

  • Was the student evaluated in compliance with Section 504 regulations?
  • Were the student’s needs determined on an individualized basis?
  • Were related aids and services, accommodations or modifications necessary to meet the student’s needs being provided?

As under IDEA, the first two questions address procedure, indicating that failure to follow procedure can be risky. Even when a district is providing necessary accommodations, it may be ordered to take corrective action based on procedural errors. One court has suggested parents need only to allege how a school district denied a student FAPE, as defined by Section 504, and do not need to identify specific regulations they believe the district violated, in asserting a violation of FAPE claim. See Bonsall Unified Sch. Dist. v. Richard C., 2018 WL 628233, 56 NDLR 135 (S.D. Cal. 2018).

A denial of FAPE can occur in many circumstances. In Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities, 69 IDELR 80 (OCR 2016), OCR indicated restraint could deny a student FAPE if it has a traumatic impact or results in the student not receiving needed services. The most serious concerns, however, are raised when the district fails to implement substantive provisions of the Section 504 plan

Placement-Implementing the Section 504 Plan

For students covered by IDEA, compliance with IDEA placement procedures constitutes compliance with Section 504. For students covered only by Section 504, Section 504 requires placement in the least restrictive environment. Placement will most generally be in general education classrooms with the services and accommodations outlined in the 504 plan. However, in some cases, placement in a more restrictive environment may be necessary.  See, e.g., S.P. v. Fairview Sch. Dist., 2014 WL 4924885, 64 IDELR 99 (W.D. Pa. 2014) (the student's frequent absences, coupled with his documented need to remain in a quiet, dark room for 12 to 16 hours when he had a migraine, showed the restrictive placement was necessary to meet the student's unique needs).

(For more information see Appendix F, Questions 4 and 35-37.)

Once a Section 504 plan is written, it must be implemented with fidelity. The cases below provide an overview of the types of mistakes districts frequently make with Section 504 plans.

Cases on Point

Implementation
  • Monroe County (AL) Sch. Dist., 117 LRP 46418 (OCR 2017). A student's IEP called for 275 minutes per week of work on a computer-based program to remediate his deficit in reading and math to be broken up into four sessions each week. OCR's investigation showed usage entries of five days with a cumulative total under 100 minutes. Therefore, the school's implementation of the IEP was inconsistent with the document's terms, amounting to a FAPE denial under Section 504.
  • Arlington (VA) Pub. Schs., 117 LRP 43809 (OCR 2017). A student's service providers were not assisting the staff interventionist or teacher in implementing a modified curriculum for the student as required by the IEP,
  • Shelby County (TN) Schs., 69 IDELR 109 (OCR 2016). The failure to provide testing accommodations required by a middle schooler's IEP during state standardized tests denied the student FAPE.
  • Canyons (UT) School District, 116 LRP 1183 (OCR 2015). If a student is entitled to receive FAPE under Section 504, the failure to properly implement the student's IHP may result in a Section 504 violation, regardless of whether the student has a separate 504 plan or not.
  • Yakima (WA) Sch. Dist. No. 7, 64 IDELR 53 (OCR 2014). Noting that a Washington district failed to properly implement the Section 504 and individual health plan of a high schooler with epilepsy during summer band camp, OCR concluded that the district violated Section 504 and Title II.
  • Durant (IA) Community Sch. Dist., 61 IDELR 145 (OCR 2013). Failure to inform staff of a student’s accommodations.
  • Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012). Inconsistent implementation of approved accommodations.
  • Temecula Valley (CA) Unified Sch. Dist., 54 IDELR 235 (OCR 2009). The teacher responsible for implementing the plan did not have a copy of the plan, was not aware of accommodations under the plan, and had no training on the plan.
  • Buncombe County (NC) Schs., 54 IDELR 235 (OCR 2009). Failure to implement a Section 504 plan.
  • Inglewood (CA) Unified Sch. Dist., 51 IDELR 21 (OCR 2008). Failed to clearly describe the services the student would receive.
  • Laramie County (WY) Sch. Dist., 51 IDELR 169 (OCR 2008). Developed a generic plan rather than a plan based on the student’s unique needs.

Teachers and staff must comply with the Section 504 plan, which is developed to provide those accommodations the student with a disability needs in order to access the curriculum and other school activities. Although often unintentional, failure to implement the agreed upon plan may result in the parent filing a discrimination complaint. In Doe v. Withers, 20 IDELR 422 (W. Va. 1993), the court awarded compensatory damages of $5000 and punitive damages of $10,000 against a teacher, in his individual capacity, after he willfully refused to implement agreed to accommodations.

(For more information see Appendix F, Questions 40-41.)

Accommodation Examples for Specific Disabilities

Here are some examples of accommodations and services that might be considered for specific disability profiles. Please keep in mind that these examples are not intended to be all-inclusive or mandatory. Do not use these examples as a “checklist” as accommodations MUST be made on a case-by-case basis specific to individual need. Please also remember that the mere presence of these conditions does not automatically qualify a student for a Section 504 plan. The disability must significantly limit one or more major life activities or bodily functions before a 504 plan is to be considered. Additionally, the disability must impact the student so that he or she is not afforded access and benefit of programs and services equal to that of non-disabled students.

Allergies

EXAMPLE: The student has severe allergic reactions to certain pollens and foods. For purposes of this example the condition substantially limits the major life activity of breathing and may interfere with the student’s ability to get to school or participate once there.

Possible Accommodations and Services
  • Avoid allergy-causing substances: soap, weeds, pollen, food
  • Provide training for necessary persons: dietary people, peers, coaches, laundry service people, etc.
  • Allow time for shots/clinic appointments
  • Use air purifiers
  • Adapt physical education curriculum during high pollen time
  • Improve room ventilation (i.e. when remodeling has occurred and materials may cause an allergy)
  • Develop health care and/or emergency plans
  • Address pets/animals in the classroom
  • Involve school health consultant in school related health issues
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects

Arthritis

EXAMPLE: A student with severe arthritis may have persistent pain, tenderness or swelling in one or more joints. A student experiencing arthritic pain may require a modified physical education program. For purposes of this example, the condition substantially limits the major life activity of performing manual tasks.

Possible Accommodations and Services
  • Provide a rest period during the day
  • Accommodate for absences for doctors’ appointments
  • Provide assistive devices for writing (e.g. pencil grips, non-skid surface, typewriter/computer, etc.)
  • Adapt physical education curriculum
  • Administer medication following medication administration protocols
  • Train student for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Arrange for assistance with carrying books, lunch tray, etc.
  • Provide book caddie
  • Implement movement plan to avoid stiffness
  • Provide seating accommodations
  • Allow extra time between classes
  • Provide locker assistance
  • Provide modified eating utensils
  • Develop health care plan and emergency plan
  • Provide for accommodations for writing tasks; a note taker, a computer or tape recorder for note-taking
  • Make available access to wheelchair/ramps and school van for transportation
  • Provide more time for massage or exercises
  • Adjust recess time
  • Provide peer support groups
  • Arrange for instructional aide support
  • Install handle style door knobs (openers)
  • Record lectures/presentations
  • Have teachers provide outlines of presentations
  • Issue Velcro fasteners for bags
  • Obtain padded chairs
  • Provide a more comfortable style of desk
  • Adjust attendance policy, if needed
  • Provide a shorter school day
  • Furnish a warmer room and sit student close to the heat
  • Adapt curriculum for lab classes
  • Supply an extra set of books for home use and keep a set at school
  • Let student give reports orally rather than in writing
  • Provide an awareness program for staff and students
  • Monitor any special dietary considerations
  • Involve school health consultants in school health related issues

Asthma

EXAMPLE: A student has been diagnosed as having severe asthma. The doctor has advised the student not to participate in physical activity outdoors. For purposes of this example, the disability limits the major life activity of breathing.

Possible Accommodations and Services
  • Adapt activity level for recess, physical education, etc.
  • Provide inhalant therapy assistance
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Remove allergens (e.g. hair spray, lotions, perfumes, paint, latex)
  • Make field trips that might aggravate the condition non-mandatory and supplement with videos, audiotapes, movies, etc.
  • Accommodate medical absence by providing makeup work, etc.
  • Adjust for administration of medications
  • Provide access to water, gum, etc.
  • Adapt curriculum expectations when needed (i.e. science class, physical education, etc.)
  • Develop health care and emergency plans
  • Have peers available to carry materials to and from classes (e.g. lunch tray, books)
  • Provide rest periods
  • Make health care needs known to appropriate staff
  • Provide indoor space for before and after school activities
  • Have a locker location which is centralized and free of atmosphere changes
  • Adapt attendance policies, school day duration, or 180-day requirement, if needed
  • Place student in most easily controlled environment

Attention Deficit Disorder (ADD) and Attention Deficit Hyperactive Disorder (ADHD)

EXAMPLE: The student does not meet eligibility requirements under IDEA as emotionally disturbed, learning disabled or other health impaired. A doctor regards the student as having ADD, and for purposes of this example, the disability limits the major life activity of learning. The student, because of his disability, is unable to participate in the school’s programs to the same degree as students without disabilities and therefore is substantially limited by the disability.

Possible Accommodations and Services 
  • Seat the student away from distractions and in close proximity to the teacher
  • State classroom rules, post in an obvious location and enforce consistently
  • Use simple, concise instructions with concrete steps
  • Provide seating options
  • Tolerate (understand the need) excessive movement
  • Provide a peer tutor/helper
  • Teach compensatory strategies
  • Train for proper dispensing of medications; monitor for side effects
  • Monitor for stress and fatigue; adjust activities
  • Adjust assignments to match attention span, etc.
  • Vary instructional pace
  • Vary instructional activities frequently
  • Provide supervision during transitions, disruptions, field trips
  • Model the use of study guides, organizing tools
  • Accommodate testing procedures
  • Provide counseling and prompt feedback
  • Initiate frequent parent communication
  • Establish a school/home behavior management program
  • Provide training for staff
  • Have the student use an organizer; train in organizational skills
  • Establish a nonverbal cue between teacher and student for behavior monitoring
  • Assign chores/duties around room/school
  • Adapt environment to avoid distractions
  • Reinforce appropriate behavior
  • Have child work alone or in a study carrel during high stress times
  • Highlight required or important information/directions
  • Provide a checklist for student, parents, or teacher to record assignments of completed tasks
  • Use a timer to assist student to focus on given task or number of problems in time allotted. Stress that problems need to be done correctly.
  • Have student restate or write directions/instructions
  • Allow student to respond in variety of different modes
  • Give student opportunity to stand/move while working
  • Provide additional supervision to and from school
  • Adapt student’s work area to help screen out distracting stimuli
  • Grade for content integrity, and not just neatness/presentation
  • Schedule subjects which require greater concentration early in the day
  • Supply small rewards to promote behavior change
  • Avoid withholding physical activity as a negative reinforcer
  • Allow for periodic, frequent physical activity, exercise, etc.
  • Determine trigger points and prevent action leading to trigger points
  • Provide for socialization opportunities, such as circle of friends

Bipolar Disorder

EXAMPLE: The student was diagnosed as having a bipolar disorder, however the severity (frequency, intensity, duration considerations) of the condition did not qualify the student for IDEA. A properly convened 504 committee determined that the condition did significantly impair the major life activity of learning and fashioned a 504 plan for the student. Here are some possible accommodations for this scenario.

Possible Accommodations and Services
  • Break down assignments into manageable parts with clear and simple directions, given one at a time
  • Plan advanced preparation for transitions
  • Monitor clarity of understanding and alertness
  • Allow most difficult subjects at times when student is most alert
  • Provide extra time on tests, class work, and homework if needed
  • Strategies in place for unpredictable mood swings
  • Provide appropriate staff with training on bipolar disorder
  • Create awareness by staff of potential victimization from other students
  • Implement a crisis intervention plan for extreme cases where student gets out of control and may do something impulsive or dangerous
  • Provide positive praise and redirection
  • Report any suicidal comments to counselor/psychologist immediately
  • Consider home instruction for times when the student’s mood disorder makes it impossible for him to attend school for an extended period

Cancer

EXAMPLE: A student with a long-term medical problem may require special accommodations. Such a condition as cancer may substantially limit the major life activities of learning and caring for oneself. For example, a student with cancer may need a class schedule that allows for rest and recuperation following chemotherapy.

Possible Accommodations and Services
  • Adjust attendance policies
  • Limit numbers of classes taken; accommodate scheduling needs (breaks, etc.)
  • Send teacher/tutor to hospital, as appropriate
  • Take whatever steps are necessary to accommodate student’s involvement in extra-curricular activities if they are otherwise qualified
  • Adjust activity level and expectations in classes based on physical limitations; don’t require activities that are too physically taxing
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Provide appropriate assistive technology
  • Provide dietary accommodations
  • Provide a private area in which to rest
  • Shorten school day
  • Arrange for home tutoring following treatment
  • Send additional set of texts and assignments to hospital schools
  • Tape lessons. Accept the fact that the lessons and content-area tests may not be appropriate; the student is learning many life lessons through this experience.
  • Adjust schedule to include rest breaks
  • Provide counseling; establish peer group support
  • Adapt physical education
  • Provide access to school health services
  • Provide awareness training to appropriate staff and students
  • Develop health care emergency plan to deal with getting sick at school
  • Offer counseling for death and dying to peers/teachers/staff
  • Furnish a peer tutor
  • Provide student with a student buddy for participation in sports
  • Initiate a free pass system from the classroom
  • Provide lessons using mastery learning techniques
  • Provide individual school counseling
  • Begin friendship groups for the student
  • Provide teachers with counseling, emphasizing positive attitudes
  • Have a health plan for care of mediport/any other intravenous lines and medical needs
  • Plan ongoing communication about school events
  • Notify parents of communicable diseases in school
  • Designate a person in school to function as liaison with parents as a means of updating changing health status

Cerebral Palsy

EXAMPLE: The student has serious difficulties with fine and gross motor skills. A wheelchair is used for mobility. For purposes of this example, the condition substantially limits the major life activity of walking. Cognitive skills are intact.

Possible Accommodations and Services
  • Provide assistive technology devices
  • Arrange for use of ramps and elevators
  • Allow for extra time between classes
  • Assist with carrying books, lunch trays, etc.
  • Adapt physical education curriculum
  • Provide for physical therapy as appropriate. Such therapy needs to relate directly to “life skills.”
  • Train for proper dispensing of medications; monitor and/or distributed medications; monitor for side effects
  • Adapt eating utensils
  • Initiate a health care plan that also addresses emergency situations
  • Train paraprofessionals in the case of this student (i.e. feeding, diapering, transporting to and from the wheelchair)
  • Adapt assignments
  • Educate peers/staff with parent/student permission
  • Ensure that programs conducted in the basement or on second or third floor levels are accessible
  • Ensure that bathroom facilities, sinks and water fountains are readily accessible.

Chronic Infectious Diseases (i.e. Acquired Immune Deficiency Syndrome (AIDS)

EXAMPLE: The student frequently misses school and does not have the strength to attend a full day. For purposes of this example, the student has a record of a disability, which substantially limits the major life activities of learning and working.

Possible Accommodations and Services
  • Provide training for staff and students about the disease, how it is transmitted and how it is treated. (Consult appropriate District policies)
  • Apply universal precautions
  • Administer medications following medication administration protocols, train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Adjust attendance policies
  • Adjust schedule or shorten day
  • Provide rest periods
  • Adapt physical education curriculum
  • Establish routine communication with health professionals, area nurse, and home
  • Develop health-care and emergency plan
  • Consult with doctor, parents, teachers, area nurse and administrators
  • Train appropriate teachers on medical/emergency procedures
  • Provide two-way audio/video link between home and classroom via computer, etc.
  • Arrange for an adult tutor at school or home
  • Adapt assignments and tests
  • Provide an extra set of textbooks for home
  • Provide staff training on confidentiality
  • Provide education and support for peers regarding issues of death and dying
  • Provide transportation to and from school if needed as a related service
  • Tape books or provide a personal reader
  • Arrange to communicate with a home computer with e-mail
  • Notify parents of communicable disease in the classroom
  • Arrange for participation in a support group
  • Provide for post-secondary employment transitions for secondary students
  • Foster supportive community attitudes regarding the District’s need to provide education to HIV positive/AIDS students
  • Develop and promote a nondiscriminatory classroom climate and supportive student attitudes
  • Promote the most supportive, least restrictive educational program
  • Initiate a "Kids on the Block" AIDS program
  • Videotape classroom teaching
  • Provide a peer support group to encourage communication
  • Involve school health consultant in school-related health issues

Cystic Fibrosis

EXAMPLE: This student is a new enrollee at your school and has an extensive medical history. He has significant difficulty breathing and will often be absent due to respiratory infection. While medical needs can be easily documented on a health plan, his educational needs also need to be accommodated. For purposes of this example, learning is the major life activity that is substantially impaired.

Possible Accommodations and Services
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Create a health care plan for management of acute and chronic phases
  • Promote good communication between parents, hospital, home and school on school assignments
  • Shorten the school day
  • Adapt physical education activities
  • Apply universal precautions, correct disposal of fluids
  • Recognize need for privacy for “good coughing”
  • Educate staff and peers

Deaf/Hearing Impairment

EXAMPLE: A student was diagnosed with a substantial hearing impairment at a very early age. He has both a hearing loss and a mild speech impediment. He compensates through both lip reading and sign language. Academic abilities test in the average range.

Possible Accommodations and Services
  • Allow for written direction/instructions in addition to oral presentation
  • Ensure delivery of instruction facing the student to allow lip reading
  • Provide visual information as primary mode of instruction
  • Allow for provision of interpreter services
  • Install acoustical tile, carpeting
  • Seat in a location with minimal background noise
  • Provide paper and pencil/pen to write/draw requests when needed
  • Facilitate acquisition of TDDs and related assistive technology
  • Allow for extra time between classes

Diabetes

EXAMPLE: A sixth grader with juvenile diabetes requires accommodation to maintain optimal blood sugar. His mom provides the crackers and juice to be used at “break” time and before physical education class. She asks that teachers remind him to eat at a certain time of the morning if he does not pay attention to the beeper on his watch. The youngster is very self-sufficient; while he is able to monitor his own blood sugar now, he prefers to do this privately. Therefore, mom asks that the equipment and a notebook/log be stored in a nearby file cabinet and the youngster be allowed to go into the hall with the equipment to check his blood sugar twice a day. She also asks that his teacher allow him to use the bathroom as needed.

Possible Accommodations and Services
  • Health care plan for management of condition in the school setting and in emergencies
  • Educate staff to signs/symptoms of insulin reaction/hypoglycemia; hunger, shakiness, sweatiness, change in face color, disorientation, drowsiness. Do not leave the child alone if he/she is feeling poorly; walk to the office or clinic with the student.
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects; communicate systematically and frequently with parents
  • Adapt physical education activities
  • Store equipment and documentation in a readily accessible location for student, parent and area nurse or clinic aid
  • Accommodate food access/meal schedules rigorously
  • Allow access to bathroom facilities

Drugs and Alcohol

EXAMPLE: The student has used drugs and alcohol for many years. This problem has affected the major life activities of learning and caring for oneself. The student is presently not using drugs or alcohol and is in a rehabilitation program. If the student is not using drugs or alcohol, he or she could qualify for accommodations or services under Section 504.

Possible Accommodations and Services
  • Provide copies of texts and assignments to treatment facility
  • Arrange for periodic home-school contacts
  • Establish daily/weekly assignments monitoring system
  • Communicate with treatment facility; pursue transition services available through the treatment facility
  • Provide/arrange for counseling
  • Establish peer support group
  • Dismiss from school for treatment without punitive measures
  • Ensure strong link with school counselor
  • Arrange for access to treatment at private or public facilities.
  • Integrate a student assistance program into the classroom
  • Inservice faculty/staff with parent/student permission
  • Provide ongoing support around chemical dependency in conjunction with other agencies
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects

Emotionally Disturbed

EXAMPLE: An emotionally disturbed student may need an adjusted class schedule to allow time for regular counseling or therapy. For purposes of this example, the condition substantially limits the individual’s major life activity of learning.

Possible Accommodations and Services
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Maintain weekly/daily journals for self-recording of behavior
  • Establish home-school communication system
  • Schedule periodic meetings with home and treatment specialists
  • Provide carry-over of treatment plans into school environment
  • Assist with inter-agency referrals
  • Utilize behavior management programs
  • Develop contracts for student behavior
  • Post rules for classroom behaviors; teach expectations
  • Provide counseling, social skills instruction
  • Reinforce replacement behaviors
  • Educate other students/staff/school personnel
  • Foster carryover of treatment plans to home environment
  • Reinforce positive behavior
  • Schedule shorter study/work periods according to attention span capabilities
  • Be consistent in setting expectations and following up on reinforcements/consequences

Encopresis/Enuresis

EXAMPLE: A student who will urinate or defecate in clothes. Not to be confused with physical incontinence, but only to a needed behavior change (i.e. toilet training, bowel/bladder retraining).

Possible Accommodations and Services
  • Maintain low key responses
  • Have a change of clothes available at school in the clinic or alternative location
  • Plan a consistent response to events; send student to clinic or alternative location for clean-up and change of clothes; while wearing latex/rubber gloves, place soiled clothes in a plastic bag; call parent and make arrangements for soiled items to be returned home
  • Observe for consistent trigger events
  • Support bowel/bladder retraining program that is recommended by the physician

Epilepsy

EXAMPLE: The student is on medication for seizure activity but experiences several petit mal seizures each month. This condition substantially limits the major life activity of learning.

Possible Accommodations and Services
  • Call parent and document the characteristics of each seizure
  • Assess breathing after seizure
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Train staff and students and prepare an emergency plan
  • Anticipate recovery process should a seizure occur. Move seating/clear space during seizure. Do not insert objects into the student’s mouth during seizure; administer no fluids if student is unconscious. Turn the unconscious student on his or her side to avoid aspiration of vomit. Provide rest time and return to academic considerations following seizure. Arrange a buddy system, especially for field trips
  • Avoid portable chalk boards or furniture that would topple over easily
  • Provide an alternative recess, adapt activities such as climbing and/or swimming
  • Plan for academic make-up work
  • Alter door openings to allow access from the outside (i.e. bathroom stall doors that swing both ways)
  • Observe for consistent triggers (e.g. smells, bright light, perfume, hair spray)

Hearing Impairment

EXAMPLE: A parent is hearing impaired and requests, access to school sponsored activities. The District makes accommodations by providing interpreter services for the parent to participate effectively in school-sponsored events or meetings about the student.

Possible Accommodations and Services
  • Provide an interpreter for those school events where accommodations may be necessary/are requested
  • Make alternative arrangements for home-school contacts/communication
  • Assist with locating peer or support groups
  • Use written notes for communication
  • Arrange with phone company for assistive devices on public phones
  • Provide information on assistive technology; acquire assistive equipment for school use
  • Provide in-house TDD or relay services to receive/communicate efficiently

Learning Disabilities

Individual profiles of learning strengths and weaknesses will vary. THE EXAMPLE: The student has a learning disability that impacts her ability to read. She has more difficulty with word decoding and spelling than reading comprehension. Thus, completing reading tasks is difficult and slow. She is currently a student receiving special education services.

Possible Accommodations and Services
  • Provide lower-readability materials covering course context
  • Provide extended time on tests
  • Arrange for student/volunteer readers
  • Provide information on accessing materials through recordings for the Blind and Dyslexic (i.e. books on tape)
  • Allow access to spell checkers and/or word processing
  • Provide information on accommodations for college-entrance/qualifying exams (i.e. PSAT)
  • Written directions in addition to oral
  • Clearly sequenced instruction
  • Visual graphs/charts/diagrams to support instruction
  • Provision of computer access
  • Seating toward the instructor
  • Support/suggestions relative to post-secondary/career options
  • Support in the use of organizational/time-management strategies
  • Support in the use of strategies to assist memory and problem-solving
  • Use of multi-sensory instructional methods (i.e. visual graphs and charts to accompany oral presentation)

Leukemia

EXAMPLE: The student has recently been diagnosed with leukemia and requires frequent hospitalization. The condition substantially limits the major life activity of learning and caring for oneself.

Possible Accommodations and Services
  • Involve area nurse in assessing current limitations and development of health plan
  • Provide homebound instruction if needed
  • Provide the student with an adjusted school day
  • Make needed accommodations during physical education/recess
  • Provide rest periods
  • Have medical services and medication available at school. Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Support the proper diet as per physical recommendation
  • With parent/student permission, have area nurse to educate teachers/staff/peers
  • Notify parents of existing communicable diseases at school (i.e. chicken pox, flu, strep throat, etc.)
  • Consult with medical staff about individual needs and/or concomitant factors

Orthopedically Impaired

EXAMPLE: The student has limited mobility and uses a wheelchair. This condition substantially limits the major life activity of walking.

Possible Accommodations and Services
  • Develop a health care and emergency plan
  • Implement an adaptive physical education program
  • Provide physical therapy at school
  • Correct problems with physical accessibility of facilities/pathways between buildings
  • Provide extra time to get to class
  • Supply a set of textbooks for home
  • Provide a copy of class notes from a peer
  • Practice emergency exit from school building
  • Ensure that access to all programs is handicapped accessible
  • Ensure that bathroom facilities, water fountains, sinks, etc. are readily accessible

Student with Special Health Care Needs

EXAMPLE: The student has a special health care problem and requires clean intermittent catheterization twice each day. This procedure empties the bladder and helps prevent urinary tract infections and possible wetting. The school is required to provide trained personnel to perform the procedure or to provide the student a private location to perform the procedure. The condition is substantially limiting in the major life activity of caring for oneself.

Possible Accommodations and Services
  • Apply universal precautions
  • Provide trained personnel to perform special medical procedures. Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Provide student with private location and time to perform procedures
  • Involve area nurse, parents, teachers, and staff in periodic review
  • Allow preferential seating as indicated by need
  • Adapt recess, physical education, and transportation
  • Adjust classroom environment
  • Develop health care and emergency plan
  • If necessary, adapt attendance policy
  • Establish health alert system whereby every staff member involved with this student is aware of the health problem and of proper procedures
  • Provide a beeper/paging system for trained personnel
  • Make available homebound services/instruction if needed
  • Provide school counseling
  • Arrange for in-service to other students and staff with parent/student permission

Temporarily Disabled

EXAMPLE: A student was in an automobile accident and will be homebound and/or hospitalized for an extensive period. The student is considered temporarily disabled under Section 504 and should receive accommodations if this disability substantially limits a major life activity for the period of time it does so.

Possible Accommodations and Services
  • Provide duplicate sets of texts
  • Provide assignments to hospital school
  • Tape lessons
  • Provide homebound instruction
  • Schedule periodic home-school meetings
  • Arrange for student to leave class early to get to next class
  • Provide access to elevators
  • Excuse from or adapt physical education program
  • Arrange for a friend to assist student in getting from class to class, provide help with getting lunch tray
  • Establish a student support network
  • Provide a cordless telephone/beeper/pager
  • Provide an interactive system -- computer, e-mail, TV
  • Arrange for peer notes
  • Change seating arrangements to accommodate needs
  • Adapt assignments depending on disability
  • Allow more time for test completion
  • Allow shortened days; adjust attendance policy
  • Inservice staff and class and prepare an emergency care plan
  • Switch programs /classes to an accessible classroom on the main floor
  • Test verbally
  • Provide peer assistance for social involvement (i.e. to keep child informed of social activities)
  • Furnish life-skill assistance
  • Provide area nurse services

Tourette’s Syndrome

EXAMPLE: The student exhibits inappropriate gestures and sounds in the classroom and hallways. The condition is substantially limiting in the major life activities of learning and caring for oneself.

Possible Accommodations and Services
  • Provide student with a means of catching up on missed lessons
  • Pair with a fellow student for study if indicated
  • Educate other students about associated outbursts/gestures/tics
  • Arrange for frequent parental interaction if indicated
  • Monitor administration/side effects of medication
  • Implement a behavior management program; cue student about inappropriate behaviors
  • Provide supervision for transition activities, during periods of “acting out”
  • Provide alternative work-space or appropriate space for the child to act out if indicated
  • Teach compensatory strategies
  • Adapt assignments if indicated
  • Provide peer/teacher in-service with parent/student permission

Traumatic Brain Injury

EXAMPLE: The student sustained a brain injury in an automobile accident. Many academic and motor skills have been lost from the injury. The student does not qualify for special education under IDEA. The condition is substantially limiting to the major life activities of learning and performing manual tasks.

Possible Accommodations and Services
  • Provide extended school year/time
  • Furnish memory/organizational aids
  • Provide alternative testing
  • Initiate tutoring programs
  • Arrange an emergency plan
  • Monitor for seizure activity
  • Inservice staff and peers with student/parent permission
  • Monitor fatigue/mental exhaustion
  • Provide frequent short breaks during periods of intense concentration
  • Shorten the instructional day if indicated
  • Provide strategies for organizing/sequencing tasks

Tuberculosis

EXAMPLE: The student is suspected of having active tuberculosis and must stay home until diagnostic tests are complete. The disease is not infectious, but the student is still weak. The condition is substantially limiting to the major life activity of learning.

Possible Accommodations and Services
  • Provide home tutor, as necessary
  • Inservice staff on the need for confidentiality to limit the stigmatization of him or her
  • Have the medical evaluator provide feedback to staff
  • Train for proper dispensing of medications; monitor and/or distribute medications; monitor for side effects
  • Inservice staff and students about the disease, how it is transmitted and how it is treated
  • Work with community agency or health department to provide medication and health education materials
  • Work with community agency or health department to test students and staff for exposure and/or infection and to determine when the student can return to school
  • Provide therapy and dispense medications if student is diagnosed with active TB; observed for side effects; arrange for parents to give medication on holidays and weekends

Visual Impairment

EXAMPLE: A student has a progressive medical disorder, which results in increasing loss of visual acuity. He now requires both enhanced lighting and enlarged print materials in order to read.

Possible Accommodations and Services
  • Preferential seating
  • Adaptations to the physical environment (i.e. consistent room arrangement, removal of obstacles to path of entry)
  • Copies of text/reading materials for adaptation
  • Modified writing tools (i.e. dark felt tip pens)
  • Perkins Brailler
  • Slate and stylus
  • Raised lines on writing paper
  • Dark lined writing paper
  • Lighting aids
  • Low vision devices including magnifiers, monocular glass, closed-circuit TV
  • Desktop slantboard
  • Enlarged print materials; textbooks, workbooks, worksheets
  • Braille textbooks/reading materials
  • Books on tape
  • Audiotape recorder, tapes and organizational location (headphones if needed)
  • Oral instead of written tests
  • Standardized tests (i.e. CAT, SAT) in large print or Braille
  • Tactile maps
  • Computer with enlarged print screen/adaptations
  • Speech synthesizer for input and output
  • Screen reading device
  • Optical Character Recognition System Scanner
  • Mobility devices (i.e. white cane)

Weight: Diagnosis of Obesity, Anorexia, and Bulimia

EXAMPLE: A student has an extreme eating disorder that may require special accommodations. Obesity may be considered a disability under Section 504 where it substantially impairs a major life activity or is regarded by others as doing so.

Possible Accommodations and Services
  • Provide special seating modifications
  • Make dietary modifications per physician recommendation
  • Adapt physical education program per physician recommendation
  • Allow extra time to get to classes
  • Educate peers
  • Adapt restrooms
  • Provide opportunities for socialization and peer counseling/interaction
  • Ensure privacy for self-care
  • Provide counseling involving the area nurse
  • Provide for elevator privileges per physician’s recommendation
  • Arrange for counselor/area nurse to supervise peer counseling to deal with esteem issues, peer attitudes, teasing, etc.
  • Address busing concerns to ensure room on buses for seating
  • Arrange to provide opportunities for the individual to participate in intramural and extra-curricular events
  • Make any class location changes that may be needed
+ Chapter 7-Student Discipline

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Section 504 Handbook

Chapter 7-Student Discipline

Disciplinary Techniques
In-School Suspension
Suspension from Extracurricular Activities
Drug and Alcohol Users
Change of Placement under Section 504
Proposed Long-Term Suspension
Manifestation Determination & Reevaluation
Breaking Down the Manifestation Determination Components
The Disability
The Relationship of the Conduct to the Disability
Failure to Implement the IEP or Section 504 Plan
Behavior is not a Manifestation
Behavior is a Manifestation
Special Circumstances

Discipline in the school setting works best when all students are subject to the same rules, and those rules are enforced evenhandedly. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability, and a number of opinions from the Office of Civil Rights of the Department of Education (OCR) suggest that in the disciplinary arena, students with disabilities should be treated like their nondisabled peers when they are disciplined in the school setting. Section 504 prohibits treating students more harshly than nondisabled students based solely on a student’s disability. Students covered by Section 504 are expected to conform to the same behavior standards as their non-disabled peers, unless modifications are explicitly outlined in their 504 Plans.

Students covered by Section 504 also have extra protections when facing exclusion from school for an extended period of time. Both Section 504 and the Individuals with Disabilities Education Act place restrictions on a school district’s ability to suspend a student with a disability when the suspension constitutes a change of placement, i.e., is for a period of more than 10 consecutive days.

The key to compliance with Section 504 is equal treatment of students. If protected students are subject to the same discipline as other students for similar infractions, the discipline will usually be upheld. If the use of different disciplinary techniques is contemplated, it should be specified in the student’s IEP or Section 504 accommodation plan.

In all cases, school districts should take prompt steps to address student misconduct when it first occurs. Discipline should not be used as a substitute for a behavior management. Further, repeated acts of misbehavior may signal the need for evaluation and identification under IDEA. When misbehavior first occurs, the district should consider:

  • Whether the child needs to be evaluated for special education or Section 504 eligibility;
  • Whether the student’s current program is appropriate;
  • Whether the student could benefit from the provision of more specialized instructional and/or related services, such as counseling and psychological services or social-work services in schools;
  • Whether the training of the student’s teacher(s) in effective use of conflict management and/or behavior management strategies also could be effective in helping to keep the behaviors under control;
  • Whether training for all personnel who work with the student and/or other students would be effective in ensuring the successful implementation of the other interventions.

Disciplinary Techniques

A student’s Section 504 accommodation plan or IEP may specify disciplinary techniques, and probably should specify such techniques if the student’s behaviors have been problematic in the past. If the accommodation plan or IEP does specify disciplinary techniques which differ from normal disciplinary techniques for all students, it is essential that all staff who deal with the student (including all regular education teachers, bus drivers, paraprofessionals, administrators, etc.) be informed of and trained to implement the alternate procedures. Failure to notify all staff who need the information may result in a denial of a free appropriate public education under IDEA or a violation of the student’s rights under Section 504.

The Office for Civil Rights of the Department of Education has rendered several opinions on whether specific disciplinary techniques used with students with disabilities violate the student’s rights under section 504. Generally, OCR has approved a number of techniques, including time-out rooms and alternative in-school suspension programs. Again, these options should be used only if they are used with all students. Otherwise, the accommodation plan should clearly spell out how the technique may be used.

In-School Suspension

OCR has indicated that if in-school suspension is supervised by a qualified special education teacher and the student continues to work on IEP goals and objectives, or continues to receive Section 504 accommodations or services, the days of in-school suspension do not count in the total days of suspension for determining if a change of placement has occurred for Section 504 purposes. However, if those conditions are not met, the days do count toward the 10 days which are allowed.

Suspension from Extracurricular Activities

Suspension from the right to participate in extra-curricular activities may also be appropriate. In Francis Howell (PA) School Dist., 18 IDELR 78 (1991), OCR concluded it was not a violation of Section 504 to suspend a handicapped student, who was placed on in-school sus­pension for misbehavior, from participating in extra-curricular activ­ities. Under the district’s policies, all students were subject to suspen­sion from extra-curricular participation for any week in which they were sent to in-school suspension. The fact that the student’s IEP specified that the student should participate in at least one extra-curricular activity did not alter the OCR decision.

Drug and Alcohol Users

Section 504 provides no protection to current users of illegal drugs. However, an individual with a history of use who has been successfully rehabilitated or is participating in a rehabilitation program is covered by Section 504. Further, a student who is identified under IDEA does not lose IDEA protections through drug use. If a student is engaging in illegal drug use at the time of the expulsion, entrance into a rehabilitation program does not render the expulsion void. In Letter to Zirkel, 22 IDELR 667 (1995), OCR concluded a school district is not required to reinstate a student who is expelled from school for selling marijuana, simply because the student successfully completes a rehabilitation program during the term of the expulsion, unless the district would allow reinstatement of a nondisabled student in a similar situation.

Change of Placement under Section 504

A change of placement is deemed to occur if the student is removed from school for more than 10 consecutive school days or for more than 10 school days cumulatively in a school year through a series of removals which constitute a pattern of removal. The IDEA definition of school day includes partial days when children are in attendance at school for instructional purposes. The factors a school looks to in determining if a change of placement has occurred under either IDEA or Section 504 are:

  • Whether each incident of misconduct involves substantially the same behavior;
  • The length of each removal;
  • The total amount of time the child has been removed; and
  • The proximity of the removals to one another.

Schools should fastidiously keep track of days of suspension for children with disabilities. Whenever the days of suspension in a school year total 10, the school must consider if a pattern of removal is established. Applying the factors is not a simple matter. Outcomes are mixed and highly erratic in cases where schools argue a change of placement has not occurred after more than ten cumulative days of suspension. The spirit of the regulations strongly favors making adjustments to the program and using positive behavior interventions and supports over suspension.

If there is any doubt, the school should err on the side of finding a pattern of removal. If a pattern exists, the next day of suspension results in a change of placement, triggering additional rights under Section 504 or IDEA. While the school makes the initial determination on whether a change of placement has occurred, this decision is subject to due process and judicial review.

Proposed Long-Term Suspension

For a student who is also protected by IDEA, when disciplinary action which constitutes a change of placement is contemplated, parents must be notified of the decision and of all IDEA procedural safeguards not later than the date on which the decision to take the action is made. As soon as possible, but not later than 10 school days after the date on which the decision is made, the team agreed to by the parent and school, must review the relationship between the child’s disability and the behavior subject to the disciplinary action to determine whether the behavior in question was a manifestation of the student’s disability. A manifestation determination is not required if the suspension does not constitute a change of placement.

Manifestation Determination & Reevaluation

Although the term “manifestation determination” cannot be found in Section 504 or its regulations, OCR requires a manifestation determination prior to any disciplinary action that would constitute a change of placement. As with IDEA, a manifestation determination is not required if the suspension does not constitute a change of placement.

Section 504 also requires that a student be reevaluated prior to any change of placement. The reevaluation and manifestation determination can occur in the same meeting, following the procedures required for evaluation and placement under Section 504. This means:

  • Parents must be given written notice of the meeting;
  • Information must be considered from a variety of sources; and
  • A group of persons knowledgeable about the child’s disability and needs, the evaluation data, and placement options must be present at the meeting; and
  • Parents should have notice of procedural safeguards.

A group of persons who meet the criteria should be involved in making the decision whether the behavior was a manifestation of the student’s disability. Evaluation data should be current enough to help in understanding the student’s misbehavior leading to the suspension. See Springfield (MA) Pub. Schs., 54 IDELR 102 (OCR 2009). In determining if the behavior was a manifestation of the disability, the team should consider the information outlined below along with other information that is relevant to making the decision. Failure to consider new information, including medical or psychological reports supplied by the parent, may result in a Section 504 violation. Pitt County (NC) Schs., 114 LRP 41316 (OCR 2014).

A manifestation determination involves two steps. First, the school and parent and relevant members of the 504 team should reevaluate the student, considering any relevant information, including:

  • The current 504 Plan;
  • Teacher observations;
  • Parent information; and
  • Any other relevant information the team believes necessary.

Next the team must determine:

  • Was the conduct in question caused by or did it have a direct or substantial relationship to the child’s disability? and
  • Was the conduct in question the direct result of the school’s failure to implement 504 accommodations or modifications?

If the answer to either of these questions is “yes,” the behavior is a manifestation of the disability and the school cannot proceed with long-term suspension of the student.

If the answer to both questions is “no,” the behavior is not a manifestation of the disability, and the school may proceed with suspension.

This is the standard currently applied under IDEA for conducting a manifestation determination.  In J.M. v. Liberty Union High School Dist., 2017 WL 2118344 (N.D. Cal. 2017), the court approved application of this standard in a Section 504 action. The student had argued the correct legal standard under Section 504 was not “whether the student’s behavior was caused by or had a direct and substantial relationship to his disability,” but rather “whether the behavior bears a relationship to the disability.” In rejecting this argument, the court noted compliance with IDEA procedures is one way to achieve compliance with Section 504 requirements. The court in Doe v. Osseo Area Sch. Dist. No. 279, 2017 WL4997918 (D.Minn. 2017), reached a similar conclusion, finding that school discipline cases support the “caused by” standard, and OCR has “long utilized a causation standard that aligns with this standard.”

The court in Osseo Area Sch. Dist. No. 279 also addressed the issue of reevaluation. The court relied on Doe v. Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200, 115 F.3d 1273 (7th Cir. 1997), which held that since the school properly determined the student’s misconduct was unrelated to his learning disability, the school did not violate Section 504 by failing to perform a full reevaluation, in concluding that Section 504 does not require a full reevaluation for a student subject to a disciplinary change of placement.

Breaking Down the Manifestation Determination Components

A manifestation review requires determining if the conduct in question was caused by or had a direct and substantial relationship to the disability. Questions in the process arise in several areas: What is the disability? What is the conduct in question? What is a direct and substantial relationship?

The Conduct in Question

In South Lyon Community Schs., 50 IDELR 237 (SEA MI 2008), a student with an emotional disturbance and ADHD passed a note to a classmate. The note said, “I have pills,” and nothing more. Without sharing the actual behavior, the district characterized the student’s misconduct as indicating that she initiated or intended to initiate the sale of drugs, even though a no drugs were found in a search of the student and her belongings. The team determined the intent to sell drugs was unrelated to her disability.

Noting the team did not look at the student’s actual conduct, the hearing officer stated, "There is a world of difference between the behavior involved in actually selling drugs at school and the behavior involved in engaging in even a suspicious brief and informal conversation about drugs with a friend at school.” Given her history of impulsive behavior and poor judgment, the hearing officer concluded the student’s false claim of possessing drugs was a manifestation of her disability.

The Disability

In order to qualify for IDEA services, a student must have a disability that falls within one of the disability categories outlined in the law and as a result need special education. Many disabilities do not qualify a student for IDEA services. When making a manifestation determination, questions arise about how to treat additional medical, behavioral or psychological conditions or impairments that do not qualify a student for special education.

The hearing officer in Baltimore County Pub. Schs., 46 IDELR 179 (SEA MD 2006), suggested the inquiry is limited to whether the behavior was caused by the disability that results in eligibility; thus the team’s focus on emotional disturbance, rather than other diagnoses the student had received, was appropriate. Some opinions indicate that other diagnoses need not be considered unless they form the basis for eligibility.

Others suggest all relevant information provided by the parent, including additional diagnoses must be considered. The manifestation determination review should consider all suspected or recognized disabilities, not just the primary disability. Murrieta Valley Unified Sch. Dist., 53 IDELR 108 (SEA CA 2009). The school may have a duty to reevaluate an already eligible student if there is reason to suspect an additional qualifying disability. School Board of City of Norfolk v. Brown, 769 F. Supp. 2d (E.D. Va. 2010); Quincy (WA) Sch. Dist. No. 144-101, 52 IDELR 170 (OCR 2009); St. Charles (MO) R-VI Sch. Dist., 55 IDELR 175 (OCR 2010).  In re Barnstable Pub. Schs., 111 LRP 58728 (SEA MA 2011), the hearing officer determined the district violated Section 504 by failing to consider an independent psychological report, diagnosing the student with bipolar disorder and situational stress when conducting the manifestation determination review.

The Relationship of the Conduct to the Disability

The manifestation determination standard is a causation standard. The key question is whether the conduct was caused by or had a direct or substantial relationship to the student’s disability. Philadelphia City Sch. Dist., 47 IDELR 56 (SEA PA 2007). Indirect relationships—disability causes low self-esteem which caused the misconduct—are no longer considered. See also Prince William Cty. (VA) Pub. Schs., 68 IDELR 286 (OCR 2016) (“When a significant change in placement is for disciplinary reasons, the first step in the reevaluation is to determine whether the student's disability caused the misconduct.”); E. Detroit Pub. Schs., 116 LRP 29008 (OCR 2015) (same).

Failure to Implement the IEP or Section 504 Plan

Failure to implement the IEP requires a showing that it was caused by an act or omission of a school employee. In Miami-Dade County Sch. Bd., 55 IDELR 59 (SEA FL 2010), the hearing officer found the failure to hold weekly counseling sessions was not a failure to implement the IEP where the sessions were held approximately once every two weeks and there was nothing to suggest additional sessions would have curbed the misconduct.

Behavior is not a Manifestation

If the behavior is a manifestation of the disability, as under IDEA, the district cannot impose discipline on the child for the behavior. However, if the behavior is not a manifestation of the disability, the student may be suspended or expelled and, under Section 504, unlike under IDEA, the education services need not continue, if the district does not have a policy or practice of providing services to nondisabled students who are suspended for similar offenses. If services are continued for the general student population, they must also continue for Section 504 students. Remember, the student must be provided with a hearing under the student suspension and expulsion statutes prior to imposition of the suspension or expulsion.

Parents do not have to agree with the manifestation determination. Ideally the team should come to consensus, but if agreement cannot be reached, ultimately school administration makes the final call. Parents can invite participants to the meeting or challenge the decision through a special education due process hearing, but do not have the right to veto the decision. Fitzgerald v. Fairfax County Sch. Dist., 50 IDELR 165 (E.D. Va. 2007). Similarly, parents could seek due process under the Section 504 procedural safeguards.

In C.C. v. Hurst-Euless-Bedford Indep. Sch. Dist., 2015 WL 2443835, 65 IDELR 195 (N.D. Tex. 2015), aff'd, 641 Fed. Appx. 423, 67 IDELR 254 (5th Cir. 2016), a middle school student with ADHD and a learning disability was placed in an interim alternative educational placement for 60 days after the team determined his act of photographing a classmate on a toilet was not a manifestation of his disability.  When juvenile justice authorities declined to prosecute the student for the act, parents challenged the action.  The court concluded the school was not bound by that decision and, since the behavior was unrelated to the disability, could impose the same sanction it would apply to nondisabled students for the same offense.

The school should document the manifestation determination review process and clearly explain its conclusions. Insufficient documentation of the date the meeting was held, parent participation, or the basis for conclusions may result in a determination the process was insufficient. In re Student with a Disability, 57 IDELR 59 (SEA NY 2011).

Behavior is a Manifestation

Where the manifestation review indicates the student’s misconduct was the direct result of the school’s failure to implement the IEP or Section 504 plan, the Section 504 or IEP team must conclude the behavior was a manifestation of the disability. When a manifestation determination results in a finding the current IEP or Section 504 plan was not being implemented, the school should take immediate steps to remedy the deficiencies in implementation.

If the Section 504 or IEP team determines that the child’s behavior was a manifestation of the disability, the child cannot be subject to discipline for the behavior. Imposing discipline in this circumstance would be the equivalent of punishing the student for having a disability.

However, the Section 504 or IEP team may recommend a change of placement if it concludes the current placement is inappropriate in light of the behaviors. If parents disagree with this recommendation, again the parents may request due process or mediation under IDEA. Parents may request due process under Section 504, but not mediation, unless school policies allow for mediation.

Under IDEA, if due process is requested, the child must “stay put” in his or her then current placement, pending the outcome of the due process proceedings, unless the school and the parents agree to another setting. Section 504 does not contain an explicit stay-put provision. However, in Letter to Zirkel, 22 IDELR 667 (OCR 1995), OCR suggested “a fair due process system would encompass a district waiting for the results of due process before making the change.”

Special Circumstances

Even if the behavior is a manifestation of the disability, the school can move the child to an interim alternative educational setting if the behavior involves special circumstances—i.e., weapons, drugs or serious bodily injury to another at school, on school property or at a school activity. Similarly, the hearing officer may order an interim alternative educational setting if the school district shows the behavior is substantially likely to result in injury to the child or others.

Under either law, if the student's misconduct is related to or is a manifestation of the student's disability, suspension or expulsion is not an option. In these cases, the school must ensure it provides appropriate behavioral interventions and supports and works with parents to reach agreement on appropriate placement for the child. If the child's misbehavior is not a manifestation of the child's disability, Section 504 allows services to cease if they cease for all children for the same misconduct. IDEA, however, mandates that services continue for students suspended or expelled from school.

IDEA contains provisions that allow a child who has not been identified as eligible for special education protections in the disciplinary context if the district has knowledge that the student is a child with a disability. Section 504 does not contain a similar provision.

+ Chapter 8-Extracurricular or Nonacademic Activities

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Section 504 Handbook

Chapter 8-Extracurricular or Nonacademic Activities

Extracurricular Athletics
Barriers to Participation
Opportunity for Participation
Tryouts
Attendance Requirements
Transportation
After School Programs
Field Trips

Section 504 applies to all school-sponsored activities, including extracurricular activities and athletics. In the athletics realm, this can include physical education courses, recreational activities, and athletics, including interscholastic, club or intramural athletics.

Whatever the extracurricular or nonacademic activity, students with disabilities must be provided an equal opportunity for participation. All students should have access to all programs, services and activities offered by the school. This includes any nonacademic services such as counseling services, transportation, health services, and any special interest clubs or groups the school sponsors. Counseling services can include personal, academic, vocational or guidance counseling, as well as placement services. In this area, it is particularly important that students with disabilities not be counseled toward more restrictive college and career objectives than their nondisabled peers with similar interests and abilities.

Students with disabilities should not be excluded from employment opportunities for students within the school, or from work programs outside the school. Additionally, students protected by Section 504 should be considered, along with other students, for referrals to outside agencies for assistance.

Students with 504 plans are expected to meet the same conduct standards and activity prerequisites as their non-disabled peers.

Extracurricular Athletics

In 2010, the General Accounting Office issued a report, in response to a Congressional request, on the participation of students with disabilities in athletics and physical education. Entitled “Students with Disabilities: More Information and Guidance Could Improve Opportunities in Physical Education and Athletics,” GAO-10-519 (2010), the report found opportunities for physical activity are limited for children and youth with disabilities. The report underscored that participation in extracurricular activities provides important health and social benefits, including:

  • Socialization;
  • Improved teamwork;
  • Leadership skills; and
  • Fitness

The GAO noted that access to physical activity is better at the elementary level than middle or high school, and found disparities based on type of disability in extracurricular athletics. The GAO recommended the U.S. Department of Education provide schools with information and resources on ways to provide opportunities for students with disabilities in physical education and extracurricular activities. Additionally, they urged the Department to issue additional guidance on Section 504 requirements and participation in extracurricular athletics.

In response, the U.S. Department of Education has issued three documents. The first, “Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics" (U.S. Department of Education 2011). In this document, the Department of Education admitted there is limited research providing evidence of effective practices and approaches to increase physical activity, to reduce obesity and to maintain health among children with disabilities. It suggested schools increase participation opportunities by eliminating common barriers to participation, identified in the table below.

Barriers to Participation

  • ACCESSIBILITY
    • Follow Universal Design Principles in construction of play areas.
    • Use adaptive physical education practices.
    • Ensure accessible transportation is available to transport children with disabilities to accessible facilities.
  • EQUIPMENT
    • Modify equipment for safe use by children with disabilities.
    • Acquire specialized equipment when necessary.
    • Use technology to allow access to sport simulation.
  • PERSONNEL PREPARATION
    • Ensure personnel are trained or have professional development that allows them to adapt games and guide activities for students with disabilities.
  • TEACHING STYLE
    • Shift the focus from competition to education of the individual.
  • MANAGEMENT OF BEHAVIOR
    • Ensure personnel have the skills and knowledge to address interactional components of disabilities within the context of competition.
    • Allow for social, emotional and behavioral interactions to be directly instructed, monitored and remediated.
  • CURRICULUM FOCUS
    • Recognize the need for flexibility in content and context.
  • PROGRAM OPTIONS
    • Remember IDEA and Section 504 requirements, including the need to provide instruction in the least restrictive environment.
  • ASSESSMENT
    • Measure growth and development individually, not on standards which may be impossible for many students with disabilities to obtain.

In January 2013, OCR issued a Dear Colleague Letter (DCL), addressing a school district’s obligations to provide access to and participation in extracurricular athletics under Section 504. A subsequent letter of clarification was issued by OCR in December of the same year. (See Appendix O for both letters).

OCR stressed the legal obligation to comply with Section 504 supersedes the rule of any association, organization, club or league that would render a student ineligible to participate. It encouraged schools to work with athletic associations to ensure students with disabilities are not denied the opportunity to participate. OCR then cautioned schools against making decisions based on assumptions, prejudices or stereotypes about disability, including generalizations about what students with certain types of disabilities are capable of doing.

Cases on Point

Athletic Association Rules
  • H. v. Illinois High School Association, 881 F.3d 587 (7th Cir. 2018). The 7th Circuit noted the association set demanding qualifying times to ensure that only the best and fastest runners could participate in the state championships. Finding the student had the same opportunity to compete as his nondisabled teammates, the court held he was not entitled to an accommodation that would give him a competitive advantage.
  • Marshall v. New York State Pub. High Sch. Athletic Ass'n, 290 F.Supp.3d 187 (W.D.N.Y. 2017). Athletic associations have no obligation to provide students with disabilities with opportunities that are not available to their nondisabled peers. Extending the student's eligibility to allow for a fifth year of competition would confer additional rights not contemplated by federal law.
  • Steines by Steines v. Ohio High Sch. Athletic Ass’n, 68 F.Supp.3d 768 (S.D. Ohio 2014), order vacated, 2015 WL 4575217 (S.D. Ohil 2015). A state athletic association could not preclude a Kentucky teenager with a learning disability and ADHD from playing soccer for his Ohio high school. The district court held that the parents’ likelihood of success on their Title II claim precluded the association from enforcing its residency requirement in the interim. Unlike age limits or eight-semester rules, which are intended to level the playing field and protect players from physically larger opponents, the residency requirement had no stated purpose.
  • Mann ex rel. Mann v. Louisiana High Sch. Athletic Ass’n, 535 F. App’x. 405 (5th 2013). Because parents failed to show the student’s anxiety disorder met the ADA (or Section 504) definition of disability, the court refused to enjoin the athletic association from enforcing its transfer rule.  Noting that the parent might be able to establish ADA eligibility after a full hearing, the 5th Circuit held that the evidence of the student's disability was not sufficient to support a preliminary injunction.
  • Starego ex rel. Starego v. New Jersey State Interscholastic Athletic Ass’n, 970 F. Supp. 2d 303 (D.N.J. 2013). The progress a 19-year-old student with autism and an intellectual disability made during his four years on his high school's football team undercut his request for a waiver of a state athletic association's eight-semester eligibility rule. The court explained that the purpose of waivers was to equalize opportunities for students who would otherwise be ineligible to participate in high school sports due to circumstances beyond their control. “Significantly, the ADA does not provide [the student] with additional opportunities because of his disabilities, but rather, the statute puts him on an equal footing with every other student player.” Concluding the student’s experiences matched those of his nondisabled teammates, the court denied the injunction.
  • Lyon v. Illinois High Sch. Ass’n, 2013 WL 309205, 60 IDELR 135 (N.D. Ill. 2013). Agreeing a fifth-year high school senior with ADHD was entitled to a reasonable accommodation, the district court enjoined the Illinois High School Association from prohibiting his participation on his high school’s wrestling team while his ADA claim, challenging the eight-semester eligibility rule, was pending. The district court ruled that waiving the eight-semester limitation would not fundamentally change or undermine the goal of promoting fair competition, particularly in a sport where competition is limited by weight classification.
  • Monroe County (IN) Cmty. Sch. Corp., 115 LRP 32792(OCR 2015). A district's obligation to comply with Section 504 "supersedes any rule of any association, organization, club, or league that would render a student ineligible to participate" on the basis of that student's disability.

Opportunity for Participation

The meat of the letter addresses a school district’s obligation, if it provides extracurricular athletics, to offer opportunities in a manner that affords qualified students with disabilities an equal opportunity for participation. This may include making reasonable modifications to policies, practices or procedures or offering accommodations, aids and services unless doing so would constitute a fundamental alteration of the program or give the student an unfair advantage. At the same time, schools can adopt bona fide safety standards and require students to have a level of skill or ability for competitive activities, so long as the criterial established are not discriminatory.

Is Modification Legally Required?

If modification is necessary for the student to participate in the activity, it must be considered.

If a proposed modification would result in a fundamental alteration of the activity by either altering an essential aspect of the activity or giving the student with a disability an unfair advantage the modification is not required.  However, the school must continue to seek other modifications.  It is only when all modifications have been considered and rejected because they would result in a fundamental alteration of the activity that modification is not required.

The letter provides examples of modifications that might and might not be required. For instance, a school would not be required to add a fifth base to a baseball field because that would fundamentally alter the nature of the baseball program. On the other hand, a school would be required to provide assistance with blood sugar monitoring and insulin administration if a diabetic student needed these services in order to participate. A service like this, even though a cost may be associated with it, would rarely constitute a fundamental alteration of the program, and would be required under Section 504.

Finally, OCR addressed the issue of providing separate or different opportunities for students with disabilities when their interests and abilities cannot be met in existing programs. OCR suggested a school might create opportunities for these students by providing disability specific teams on a districtwide or regional basis, allow for co-ed teams or allow for unified teams comprised of both students with disabilities and nondisabled students. In the December clarification, Letter to Negron, 62 IDELR 185 (OCR 2013), OCR indicated this encouragement to schools does not mean schools must create additional activities for students with disabilities. However, if programs are created, the district must provide the same level of support for them that it provides for other competitive activities.

In the clarification letter, OCR made it clear equal opportunity means equal access to existing opportunities. It does not mean every student with a disability has a right to be on an athletic team. Nor does it mean:

  • Compromising student safety;
  • Changing the nature of selective teams;
  • Giving a student with a disability an unfair advantage over other competitors; or
  • Changing essential elements that affect the fundamental nature of the game.

OCR further clarified that in its January guidance, it was not requiring participation in nonacademic services and extracurricular activities to be addressed by a student’s Section 504 team as part of the free appropriate public education requirement, nor was it setting a legal requirement under Section 504 that IEPs address extracurricular athletic participation. However, districts must provide the assistance a student needs to participate in extracurricular athletics, even if the activity is not included in the IEP. Winooski (V) Sch. Dist., 46 IDELR 172 (OCR 2006). If the student cannot meaningfully participate, even with accommodations, the district may deny participation. Shoreline (WA) Sch. Dist. No. 412, 24 IDELR 714 (OCR 1996).

Tryouts

A school’s efforts to provide equal opportunities for participation in athletics should address tryouts for competitive teams, including cheerleading. Policies that preclude persons with disabilities from tryouts should be eliminated. Parents and students should be given notice of tryouts as early as possible. Criteria for making and competing on the team should be established and shared with parents and students prior to tryouts. When students are ranked on a variety of performance criteria, such as speed, balance, coordination, hand-eye coordination, sprint speed, lateral movement, the ability to catch the ball and accuracy in throwing a ball for baseball, schools can readily show all students were given an equal opportunity to tryout and that a student with a disability did not make the team based on skill level. See Maryville City (TN) Sch. Dist., 25 IDELR 154 (OCR 1996).

OCR has required accommodations to be provided during tryouts for competitive athletics and cheerleading as well as during the season. See Marion County (FL) Sch. Dist., 37 IDELR 13 (OCR 2001). Parents and students should understand how to request accommodations, if necessary, in either situation. See Sumner County (TN) Sch. Dist., 64 IDELR 222 (OCR TN 2014). At tryouts, coaches and sponsors should keep thorough documentation. OCR will not find a violation of Section 504 if decisions are made based on skill and the student’s skill and ability levels are not strong enough to make the team. See Cobb County (GA) Sch. Dist., 63 IDELR 297 (OCR 2014); Kennewick (WA) Sch. Dist. No. 17, 57 IDELR 262 (OCR 2011).

Cases on Point

Cheerleading Tryout Cases
  • Cobb County (GA) Sch. Dist., 63 IDELR 297 (OCR 2014). The fact that a high school cheerleader received a low score on her tryout performance undermined her claim that the school district prohibited her from joining the varsity cheerleading squad due to her diabetes. OCR noted a panel of coaches selected cheerleaders for the varsity squad by scoring each candidate’s performance on the same set of skills. The evidence showed the student received a low performance score because she executed low tumbling tucks, her dance motions were off count and not precise, and she had a slow running speed. Finding no evidence that the student’s disability played a role in her exclusion, OCR concluded that no Section 504 discrimination occurred.
  • Elgin (OH) Local Sch. Dist., 113 LRP 39041 (OCR 2013). OCR found the school district afforded a nonverbal student with Down syndrome equal opportunity to participate on the high school cheerleading squad by offering her various accommodations to help her prepare for the tryouts, to assist her, and to keep her safe during tryouts. OCR noted the district offered to provide specific cheers in writing and with visual choreography prior to tryouts, to allow her to use a communication device during tryouts, to provide her verbal prompting and visual cues during tryouts, and to ensure the presence of personnel trained to use her anti-seizure device and implement her seizure plan. The district also invited the parent to meet and discuss additional accommodations.

Attendance Requirements

Generally, OCR has allowed schools to enforce attendance requirements as a condition of participating in extracurricular athletics if policies are facially neutral and applied equally to all students. See Houghton Lake (MI) Community Schs., 45 IDELR 199 (OCR 2005) (student required to attend at least a half day to be eligible to participate in activities that day). However, the district court in Mowery v. Logan County Bd. of Educ., 2012 WL 895921, 58 IDELR 192 (D. W. Va. 2012), found a student with a hereditary metabolic disorder who had a homebound placement stated a claim for disability discrimination under Section 504 when he was prohibited from entering a senior class dance on the grounds if he was “too sick to come to school” he was also “too sick” to attend extracurricular events. When the reason for the failure to meet the attendance criteria is disability-related, schools may need to consider if modification of the policy would be appropriate.

Coaches should be trained on Section 504 requirements regarding participation of students with disabilities in extracurricular athletics. They should also be aware of required aids, accommodations, services or modifications contained in the student’s Section 504 plan and understand their implementation duties. See Cobb County (GA) Sch. Dist., 63 IDELR 297 (OCR 2014).

Cases on Point

Athletics/Tryouts
  • Sumner County (TN) Sch. Dist. 64 IDELR 222 (OCR TN 2014). When a student with a disability was not selected for her high school bowling team, her father complained that the tryouts did not provide reasonable accommodations. The district entered into a resolution agreement, agreeing to offer free coaching to the student and to discuss what reasonable modifications, aids, or services would afford her an equal opportunity to participate tryouts and/or the competitive bowling season. The district also agreed to provide annual training to faculty and staff, including volunteer coaches, on ensuring students with disabilities an equal opportunity to participate in extracurricular activities such as athletics.
  • Pine-Richland (PA) Sch. Dist., 62 IDELR 154 (OCR 2013). The fact that other students with disabilities made the cut undermined an assertion that coaches discriminated against a student with Asperger syndrome and anxiety disorder by not selecting him to play varsity ice hockey. Although the student had good junior varsity statistics, coaches believed he was not at the level of a varsity player. Twenty-seven students did not make the team, but several other students with disabilities were among the 16 chosen for the team, including one student with Asperger syndrome. OCR dismissed the complaint, finding no evidence to suggest the coaches’ treatment of the student or their decision not to select him for the team was related to his disabilities.
Athletics/Accommodations
  • Scarborough (ME) Pub. Schs.,66 IDELR 190 (OCR 2015). Districts must make reasonable modifications to their policies and procedures and must provide aids and services that are necessary to ensure that students with disabilities are afforded an equal opportunity to participate in extracurricular activities, unless districts can show that doing so would result in a fundamental alteration or would create an undue financial or administrative burden. This district agreed to alter its chaperone policy to let a registered nurse or parent attend a baseball trip with a student who required assistance due to his need for insulin.
  • Guilford County (NC) Schs., 67 IDELR 130 (OCR 2015). A North Carolina district entered into a resolution agreement with OCR to address compliance concerns over its eligibility requirements for students participating in interscholastic athletics. It promised, when deciding if a requested exception to its policies would constitute a fundamental alteration of its athletic program, to consider the direct relationship between a student's specific disability and his failure to meet the requirement at issue; the extent to which the failure to meet the academic and attendance standards was within the control of the student; and whether the district implemented the IEP or 504 plan.
  • Duval County (FL) Schs., 66 IDELR 230 (OCR 2015) A district should have convened a student's Section 504 team to determine whether he could participate in extracurricular activities after it received medical information regarding the student's asthma.
  • Pikeville (KY) Indep. Schs., 112 LRP 37715 (OCR 2012). OCR received a complaint that the district discriminated against a basketball player with diabetes when his coach allegedly denied him the chance to check his blood sugar levels during practices and denied him playing time during games because of his condition.
  • Harrah (OK) Pub. Schs., 62 IDELR 216 (OCR 2013). A mother complained her daughter was unfairly penalized when the district failed to implement her Section 504 plan with respect to absences for missing a softball session because of her Type 1 diabetes. The district settled the complaint with a resolution agreement, agreeing to train its staff members on their obligations under Section 504 both generally and specifically, addressing the equal opportunity to participate in athletic activities.
  • Wyoming City Schs., 57 IDELR 85 (SEA OH 2012). The school district violated IDEA when it relied on the opinion of a student’s swim coach to determine the student did not need a sign language interpreter on bus trips to and from swim meets. Because the student’s auditory processing disorder resulted in severe communication difficulties, the parent maintained the student needed an interpreter to assist him if he became ill. Noting that the matter should have been addressed at a properly convened IEP meeting, the state agency ordered the district to convene the IEP team to consider the issue.
Automatic Disqualification
  • Blissfield (MI) Cmty. Schs. 62 IDELR 95 (OCR 2013). A high school coach who believed a student with severe developmental delays was ineligible for the cheerleading squad because the student was slated to attend an off-site program for the first half of the school day was mistaken.  OCR concluded her view that students attending off-site programs for more than half of the day were automatically disqualified from their regular school’s extracurricular programs did not comply with Section 504 and denied the student an equal opportunity to participate.
Other Extracurricular Activities
  • Harrington v. Jamesville Dewitt Central Sch. Dist, 69 IDELR 235 (N.D.N.Y. 2017). An honor student with anxiety and depression failed to show that a New York district discriminated against him on the basis of disability when it prohibited him from participating in a school play as a consequence for alleged plagiarism.
Notice of Events
  • Santa Fe R-X Sch. Dist., 62 IDELR 99 (SEA MO 2013). Although the student with ADHD and SLD and his parent "did not have perfect knowledge of all events," the district took a variety of steps to ensure that parents and students were aware of activities, including through its online calendar, a “text-cast” that described a variety of upcoming activities, daily announcements, in-class sign-up sheets, parent-teacher conferences, and the student’s own planner. Further, the student had access to all of the activities in which he wished to participate.
  • Vicksburg Warren (MS) Sch. Dist., 56 IDELR 239 (OCR 2010). The school district failed to consider whether a student with a severe intellectual disability could participate in an afterschool enrichment program which taught students skills related to baking, crocheting, and knitting. Although at least one student with a disability received notice of and attended the program, OCR noted the district did not follow proper procedures in determining whether to provide notice to other students with disabilities. Also, rather than convening the IEP team or a group, one individual decided that the student’s "unpredictable behavior" weighed against his participation in the program.

Transportation

Transportation may qualify as either a related service or a nonacademic service or activity. Generally, transportation must be provided in a manner that affords students an equal opportunity for participation in extracurricular athletics or activities. See Prince William County (VA) Pub. Schs., 57 IDELR 172 (OCR 2011).

Cases on Point: Transportation

  • I.H. v. Fairlawn Bd. of Educ., 2017 WL 4475982, 70 IDELR 104 (D.N.J. 2017). A diagnosed medical condition won't automatically entitle a student to a related service, such as having a nurse on the bus when publicly placed in an out-of-district private school. It must first be determined what impact the condition has on the student's ability to receive FAPE without the related services requested.
  • K. v. North Allegheny Sch. Dist., 146 F.Supp.3d 700 (W.D. Pa. 2015). The school district did not have to defend allegations that it discriminated against a deaf-blind kindergartner by refusing to transport him between his assigned school and an out-of-district day care program for children with special medical needs. The District Court held that the parent's failure to allege an injury to the child, as opposed to herself, entitled the district to a dismissal of the complaint.
  • Marblehead (MA) Pub. Schs., 65 IDELR 214 (OCR 2015). Although a Massachusetts district didn't intentionally segregate students with disabilities on their way to prom, it agreed to make sure that, in the future, students would be integrated as much as possible. This complaint arose when special education students were transported to prom on a different bus from students without disabilities. OCR noted that, while the bus assignment policy didn't appear to be discriminatory, the district was still obligated to confirm that its policies didn't result in the segregation of students with disabilities.
  • Berkeley (CA) Unified Sch. Dist., 114 LRP 47366 (OCR 2014). A parent asked the district to incorporate two afterschool programs into the IEP of an elementary student with autism and speech-language impairment who required curb-to-curb transportation. The IEP team argued the student did not need to participate in the programs to receive a free appropriate public education.  OCR noted “participation in a ... extracurricular program need not be required by the student’s IEP or Section 504 plan ... for the student to receive ... aids, supports, services, and/or modifications.”  The district entered into a resolution agreement to address the parent’s concerns.
  • Southington (CT) Bd. of Educ., 62 IDELR 243 (OCR 2013). A mother alleged the school district denied her daughter the opportunity to participate in the school's theater program by not providing bus transportation from the student’s out-of-district placement. OCR indicated if a district places a Section 504 eligible student in an out-of-district school as a means of providing the student with a free appropriate public education, the district is responsible for providing any transportation that the student would have been entitled to receive if the educational program were delivered within the district. The district resolved the complaint by paying the mother’s mileage to transport the child to the afterschool program.
  • South Plainfield Bd. of Educ., 61 IDELR 148 (SEA NJ 2013). A school district did not violate IDEA by not providing the transportation services a 12-year-old boy needed to participate in extracurricular activities at his out-of-district special education school. Noting that the student made adequate progress toward his social skills goals without participating in afterschool activities, the ALJ determined those services were not necessary to provide the student FAPE and therefore transportation was not required. [NOTE: The ALJ did not address what obligations the district might have to provide the requested transportation services under Section 504. OCR would likely reach an opposite conclusion.]
  • Prince William County (VA) Pub. Schs., 57 IDELR 172 (OCR 2013). Attempts by middle school officials to obtain an activity bus for a student to attend chess club after school deprived the student of an equal opportunity to participate in afterschool activities. The student’s IEP included transportation as a related service. While the delay may have been due to a misunderstanding on the part of various staff members, that did not excuse the district’s failure.

The regulation regarding nonacademic services, 34 CFR § 104.47, can be found in Appendix E.

After School Programs

Section 504 does not require a school district to provide extracurricular activities or nonacademic services, but it does require an equal opportunity for participation by students with disabilities if these activities or services are provided. This includes a requirement that parents and students have adequate notice of the programs and criteria for participation. Waterbury (CT) Sch. Dist., 51 IDELR 198 (OCR 2008); Santa Fe R-X Sch. Dist., 62 IDELR 99 (SEA MO 2013). In Westside (CA) Union Sch. Dist., 61 IDELR 55 (OCR 2013), OCR suggested schools should have policies or procedures addressing the participation of students with disabilities in these programs and informational materials should describe how to request accommodations. Additionally, program coordinators should be trained on Section 504 requirements.

Unless doing so would fundamentally alter the program, schools must provide aids, services, or accommodations and/or make reasonable modifications to policies, practices or procedures to allow a student with disabilities the opportunity to participate in supplemental after school programs, tutoring programs, enrichment programs, field trips, or other activities. See South Lyon (MI) Community Schs., 54 IDELR 204 (OCR 2009).

A decision to exclude a student with a disability from these activities must be made on an individual basis, with the school district bearing the burden of proving the need for the exclusion. See Salida (CA) Union Sch. Dist., 49 IDELR 166 (OCR 2007). OCR has sent mixed messages on whether a student’s Section 504 team must be convened to determine aids and services for extracurricular activities. OCR does not consider these determinations to be placement decisions under Section 504. However, it has frowned on school personnel making unilateral decisions regarding accommodations or exclusion of students with disabilities from participation. In Mattituck-Cutchogue (NY) Union Free Sch. Dist., 113 LRP 27884 (OCR 2013), OCR concluded a school district violated Section 504 when the school principal and special education director unilaterally decided a student with anxiety, who had been released from the hospital one day earlier, could not participate in a field trip to Washington, D.C. In San Ramon Valley (CA) Unified Sch. Dist., 114 LRP 7220 (OCR 2013), OCR explained before excluding a student with a disability from a field trip, the student’s 504 or IEP team must conclude that, even with the provision of accommodations, the student is not qualified to participate; the provision of accommodations would result in an undue burden; or, the field trip is otherwise inappropriate to the child’s needs.

Cases on Point: After School Programs

  • Elmore County (AL) Sch. Dist., 70 IDELR 162 (OCR 2017). School's claim that its aftercare program was "not equipped to handle children with extreme behavior issues" did not excuse its decision to unenroll a student with developmental delays from the program.
  • Huntsville (AL) City Sch. Dist., 114 LRP 36268 (OCR 2014). The school denied a student with diabetes an equal opportunity to participate in its afterschool program when it refused to provide a nurse to administer his insulin. The district entered into a resolution agreement, agreeing to promptly evaluate the student for IDEA and Section 504 eligibility and provide him with the services he needed to access the afterschool program, including trained personnel to administer insulin at regular intervals. It also agreed to develop policies and procedures regarding accommodations for students with disabilities at extracurricular activities and conduct annual Section 504 and training for staff and faculty members.
  • Westside (CA) Union Sch. Dist., 61 IDELR 55 (OCR 2013). A school district violated Section 504 by excluding twin sixth-graders with ADHD from an afterschool math tutoring program for disruptive behavior without first assessing their individual needs. Because the students had IEPs, the district “should have conducted individualized assessments to determine whether they needed accommodations to have an equal opportunity to participate in the program,” OCR indicated. OCR advised the district to revise its policies and train staff to ensure students with disabilities had an equal opportunity to participate in afterschool programs.  OCR also suggested informational materials about afterschool programs should describe how parents can request accommodations and program coordinators should be trained on Section 504 requirements.
  • Vicksburg Warren (MS) Sch. Dist., 56 IDELR 239 (OCR 2010). The school district erred in failing to consider whether a student with a severe intellectual disability could participate in an afterschool enrichment program which taught students skills related to baking, crocheting, and knitting. Although at least one student with a disability received notice of and attended the program, OCR noted the district did not follow proper procedures in determining whether to provide notice to other students with disabilities. In this instance, rather than convening the IEP team or a group of individuals, one individual decided that the student’s “unpredictable behavior” weighed against his participation in the program.

Field Trips

Field trips can pose challenges for school districts, particularly in lean budgetary times. However, lack of funds will not support a decision to exclude a student with disabilities from participation in a field trip. See Thompson (CO) Sch. Dist. #R2-J, 57 IDELR 81 (OCR 2011). OCR has recognized that students may be excluded from field trips for legitimate reasons, including:

Academic program

If the purpose of the field trip is related to curriculum the student is not studying, exclusion may be appropriate. Accomack County (VA) Pub. Schs., 49 IDELR 50 (OCR 2007). But see Bloomington Pub. Sch. Dist. ISD #0271-01, 68 IDELR 293 (OCR 2016) (the fact that a school's field trips were designed to supplement the general education curriculum didn't justify excluding students with autism who attended a self-contained program).

Unacceptable risk to the student’s health or safety.

A student may be excluded from a field trip if the school believes the student’s participation would present an unacceptable risk to the student’s health or safety that cannot be ameliorated by aids, services or accommodations. North Hunterdon/Voorhees Regional (NJ) High Sch. Dist., 25 IDELR 165 (OCR 1996). If a district identifies genuine safety concerns that may require excluding a child with a disability from a field trip, the concerns should be documented as they arise. In this case, a a student with autism was not included in a visit to an aquarium. The student's progress notes, fully outlining her behavioral incidents helped show the decision was not based on the disability but safety. Lawrence (MA) Pub. Schs., 56 IDELR 55 (OCR 2010).

Violations of the disciplinary code

Students may be excluded from participation for violating the code of student conduct so long as the rules apply equally to all students. Sandusky (OH) Exempted Village Sch. Dist., 112 LRP 53081 (OCR 2012).

No reasonable accommodation exists

In I.A. v. Seguin Indep. Sch. Dist., 881 F.Supp.2d 770 (W.D. Tex. 2012), the court concluded the school district did not violate Section 504 by denying a student in a wheelchair participation in a field trip to a non-accessible cave. The court rejected arguments the school should have carried the student through the cave, videotaped the interior of the cave, or arranged a trip to a wheelchair accessible cave.

Cases on Point

Field Trips
  • Eastern (OH)Local Schs., 70 IDELR 78 (OCR 2017) A principal and school nurse who expressed doubt that a high schooler could manage her diabetes care on two field trips violated Section 504 when they effectively barred her from the outings.
  • Park City (UT) Sch. Dist., 116 LRP 26077 (OCR 2016). While a Utah district may not have explicitly required parents of students with diabetes to attend field trips so their children could receive insulin shots, it clearly expected them to do so. Noting that the district didn't ask parents of nondisabled students to attend field trips, OCR concluded that the district subjected students with diabetes to different treatment based on their disabilities. Moreover, OCR observed that the district's explanation that it only asked parents to attend when a nurse was unavailable wasn't a legitimate reason for the different treatment.
  • Los Banos (CA) Unified Sch. Dist., 116 LRP 26079 (OCR 2016). A teacher decided not to send a permission slip to the parents of a student with autism for a class field trip. In finding lack of compliance with Section 504 and Title II, OCR observed although the district may exclude a student from a field trip due to safety concerns, the district must let the student's IEP or 504 team make that determination.
  • Ashby (MN) Sch. Dist., 69 IDELR 190 (OCR 2016) A district resolved allegations that it discriminated against a grade-schooler with epilepsy by not making her medication available during field trips.
  • Lee County (FL) Sch. Dist., 68 IDELR 285 (OCR 2016) A district discriminated against a student with ADHD when it required his mother to attend a trip to the zoo to manage his behavior.
  • Anderson County (TN) Sch. Dist., 66 IDELR 52 (OCR 2015). The school violated Section 504 when it failed to assign a school nurse to check a student’s blood sugar levels every afternoon as required by his 504 plan. As a result, the mother of the elementary student with diabetes had to come to school each day and attend field trips for three months to ensure that the child received the appropriate amount of insulin.
  • Donegal (PA) Sch. Dist., 66 IDELR 231 (OCR 2015) The school district may have violated Section 504 and Title II when it conditioned the participation of a student with nut allergies in class field trips on his parent's availability to "monitor his safety" instead of providing him with accommodations that would reduce his exposure to allergens.
  • Bellingham (MA) Pub. Schs., 64 IDELR 24 (OCR 2014). A parent could not prove that a district discriminated against a student with a behavioral disability when it excluded him from a class field trip. OCR noted that the district provided a legitimate reason for the student's exclusion -- he received two failing grades on his report card. According to school policy, students who received an "F" in two or more subjects on a single report card would be disqualified from the trip. OCR opined that the district applied this policy in a nondiscriminatory manner because, among the 15 children who received two failing grades and were barred from the trip, nine did not have disabilities.
  • North West Hendricks Schs., 64 IDELR 186 (SEA IN 2014). Choir teachers improperly excluded a student with a disability from participating in afterschool choir recitals that counted as a grade for his classmates and a class field trip to the zoo. To resolve the complaint, filed at the state level, the district agreed to conduct in-service training for all administrators, teachers, and paraprofessionals regarding the inclusion of special education students in curricular and extracurricular activities.
  • Bighorn (WY) Sch. Dist. #2, 61 IDELR 236 (OCR 2013). A parent claimed the district required her to monitor the student's blood glucose levels when the school nurse was not available and required her to accompany the student on all field trips. She also alleged that the district refused to train anyone other than the nurse to administer glucagon to the student. To resolve the complaint, the district revised the student's Section 504 plan to permit self-monitoring of blood glucose and committed to training at least four adult staff members to serve as "Trained Diabetes Personnel" to accompany the student on field trips and provide diabetic care services in the nurse's absence.
  • Triton (MA) Reg’l Sch. Dist., 114 LRP 15840 (OCR 2013). Parents alleged the district denied their child, who had an aide during the school day, an opportunity to participate in a field trip to a park with his typically developing peers. Specifically, they claimed that the district invited the student to attend the trip on the condition that his parents personally supervise him or provide other supervision.
  • West Contra Costa (CA) Unified Sch. Dist., 62 IDELR 242 (OCR 2013). A school district required an autistic child’s mother to accompany him, instead of providing an aide, on a kindergarten field trip to a candy factory. OCR noted while a district may request a parent accompany a student with a disability on a field trip, it cannot require it as a condition of participation. If a student needs behavioral support from an aide in order to participate, the district must provide the aide, at no cost to the parent, unless doing so would fundamentally alter the nature of the activity or constitute an undue burden.
Overnight Stays
  • Bellingham (MA) Pub. Schs., 64 IDELR 24 (OCR 2014). A parent alleged to OCR that the district denied the eighth-grader an opportunity to attend a district-sponsored overnight trip to Washington, D.C. with his typically developing classmates. OCR found the claim had no merit because there was a legitimate reason for the student’s exclusion -- two failing grades on his report card. The field trip notice, sent to all parents, indicated students who received an “F” in two or more subjects on a single report card would be disqualified from the trip. Further, the policy was applied in a nondiscriminatory manner, barring 15 students from the trip, including nine students who did not have disabilities.
  • Yakima (WA) Sch. Dist. No.7, 64 IDELR 53 (OCR 2014). OCR concluded the school’s failure to communicate with the parents of a high school band member with epilepsy violated Section 504. Because the parents were only told a nurse would not be available, the parents prohibited the student from staying at a band camp overnight with her nondisabled peers. The student’s Section 504 plan specified she required a nurse whenever she traveled outside a 15-minute 911 response area, but only required the supervision of a trained staff member within a 15-minute 911 response area.  OCR determined the failure to inform parents that three medically trained chaperones were available to monitor the student’s seizures overnight impeded the student’s full participation in the extracurricular activity.
Special Events
  • Wiggins (CO) Sch. Dist. 50, 63 IDELR 267, (OCR 2013). A parent claimed the district failed to provide her daughter with accommodations for her gluten allergy during school hours and extracurricular activities, effectively excluding her from after school events with her nondisabled peers. The district voluntarily resolved the parent’s concerns by convening a Section 504 team and developing a Section 504 plan for the student. The district agreed to provide a gluten-free food option at all special events and conduct training regarding celiac disease for all staff involved in the student’s care and education.
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Chapter 9-Grades, Honors & Awards

Grading Systems
Report Cards
Transcripts
Honor Roll
Calculating School-Wide GPA Standings
Rewards and Incentives

Grading Systems

As a general rule, grading systems should be the same for all students. Districts should apply their grading policies and procedures in a neutral manner, unless a student’s Section 504 plan authorizes the use of a modified grading system based on her individual needs. Eastmont (WA) Sch. Dist. No. 206, 114 LRP 42762 (OCR 2014).

A district may use a different grading system for a student with a disability participating in the general curriculum only if the student’s IEP or Section 504 team, not an individual teacher, adopts an alternate system in response to the student’s individual disability-related needs. See Ann Arbor (MI) Pub. Sch. Dist., 30 IDELR 405 (OCR 1998) (grading issue should have been referred to the IEP team, not the individual teacher, for resolution); Ottawa Twp. (IL) High Sch. Dist. 140,27 IDELR 373 (OCR 1997) (district did not discriminate when it held a student with a learning disability to the same standards of course performance as his classmates in the absence of an IEP team decision to the contrary). An IEP or Section 504 team should consider the need for an alternate grading system where the student’s disability precludes the possibility of performance at the same level as peers. In Harrison County (WV) Sch. Dist., 353 IDELR 120 (OCR 1988), OCR determined the school district violated Section 504 by requiring a student with a severe communication disorder to be graded exactly like her peers in language and writing skills, despite the student’s physical limitations which made performance at the same level impossible.

Grades for special education courses should not be discounted or otherwise diminished on a categorical basis. Plymouth-Carver (MA) Regional Sch. Dist. 7, 353 IDELR 134 (OCR 1988). School districts also should not modify grades on the basis of a student’s special education status alone. Doing so raises a strong inference that children with disabilities are being treated differently on the basis of their disabilities. Similarly, weighted grading systems that arbitrarily assign lower weights to all special education courses likely violate Section 504. However, weighted grading systems may be permissible, if the school district has documented and can explain the process and criteria used to assign various weights to each course or subject.

OCR will support the school district’s assignment of weights to courses, assuming a school district can present a coherent methodology that is consistent with guidance set out governing the permissible use of weighted grading systems. Letter to Runkel, 25 IDELR 387 (OCR 1996). Under a weighted grade system, both a regular education course and a special education course that differ only in the manner in which the material is presented should be considered to have the same level of difficulty. Letter to Ickes, 305 IDELR 50 (OCR 1989). A district may use a weighted grade system to compile grade-point average standings used to compute class rank, honor roll status, honor society eligibility, etc., only if the system is based on objective rating criteria. In this regard, both the level of difficulty and the student’s level of academic achievement must be taken into account. See Centerville (OH) City Sch. Dist., 40 IDELR 20 (OCR 2003).

Schools can use asterisks, symbols or other codes to indicate a modification or exception to the regular grading scale, provided that the same designations are used for students without disabilities who are graded on an alternate scale. Districts can use the same notation for special education classes and courses with a higher degree of difficulty. Letter to Runkel, 25 IDELR 387 (OCR 1996).

School district grading policies that penalize or reward students based on attendance can be problematic for several reasons unrelated to disability. (See the KASB Student Discipline Handbook). But, when the absences of a student with a disability are disability-related, failing to make reasonable accommodations to the attendance policy, which may appear neutral on its face, can result in a violation of Section 504. Penalties based on absence may be applied to students with disabilities like any other student, if the absence is not related to the disability.

Cases on Point

Grading Policies
  • Eastmont (WA) Sch. Dist. No. 206, 114 LRP 42762 (OCR 2014). The parent alleged the district penalized the student for using the classroom accommodations set forth in her Section 504 plan by not allowing her to earn full credit (giving only three of four points) when she submitted alternative assignments in her physical education class. In a resolution agreement, the district promised to recalculate her physical education grade and to amend her transcript to reflect the change. In addition to training, it also agreed to develop a new policy to ensure all students on 504 plans or IEPs would have the opportunity to earn full credit for alternative assignments.
Alternate Grading
  • Shenendehowa (NY) Cent. Sch. Dist., 114 LRP 23576 (OCR 2014). OCR has found it permissible to grade a student with a disability differently than regular education peers in situations where the student's placement team determined the grading methodology on an individual basis and the methodology was not the result of systematic different treatment on the basis of disability
  • North Hunterdon/Voorhees Regional (NJ) High Sch. Dist., 25 IDELR 165 (OCR 1996). Alternate grading system for a student with a disability did not violate Section 504 where the placement team determined the grading methodology on an individual basis and it was not the result of systematic different treatment on the basis of disability.
  • North East (TX) Indep. Sch. Dist., 24 IDELR 298 (OCR 1995). The school district's use of weighted grades did not violate Section 504. The weighted grades reflected different academic levels in coursework in basic and special education classes where the differences in the method of instruction and in the quantity of the material covered between the classes were significant.  Additionally, the placement of each student with a disability in "special," "basic," "regular," or "honors" classes was based on the IEP team's consideration of individual needs.
  • Plymouth-Carver (MA) Reg'l Sch. Dist. 7, 353 IDELR 134 (OCR 1988). A weighted grading system that assigned lowest weight, one on a scale of 1 to 6, to all special education courses violated Section 504.
Absences
  • Fayette County (GA) School Dist., 44 IDELR 221 (OCR 2005). School district did not violate Section 504 by evaluating each of a student’s absences to determine if it would be excused rather than allowing him to be automatically excused for absences related to medical needs. The district also required a doctor's note for the absence to be excused. Further, OCR determined the practice of allowing exemption from final exams for students with no more than five absences, excused or unexcused, was facially neutral.

Special education hearing officers have no jurisdiction over a dispute about a grade, and due process will generally not be an option unless there is an alleged denial of the right to a free appropriate public education. Hacienda La Puente Unified Sch. Dist., 27 IDELR 885 (SEA CA 1997).

A student with a disability who receives modifications in the regular classroom may receive a modified grade in some circumstances. Analysis of several factors ultimately determines whether modified grading is appropriate and nondiscriminatory. Modified grades may be permissible for students with disabilities who receive content changes in their general education curriculum. Modified grades may also be appropriate where the grading modification is designed by the student's placement team and indicated on his IEP or Section 504 plan. In these instances, the student should be given the option of earning a regular grade by foregoing special education modifications. Metropolitan (TN) Pub. Sch. Dist., 18 IDELR 971 (OCR 1991).

In its Dear Colleague Letter on Report Cards and Transcripts for Students with Disabilities (OCR 2008) (See Appendix N), OCR indicates report card grades for students with disabilities can be based on grade-level standards when the student participates in the general education curriculum. The guidance also suggests when a student is taught using a modified or alternate curriculum the school district can decide the standard to be applied to measure the student’s progress.

Report Cards

Report cards are documents designed to inform parents about a student’s progress. They are not intended to be made available to potential employers, postsecondary institutions, or other entities outside of the district. Report cards should provide a meaningful explanation of a student’s progress and, in doing so, can refer to the student’s receipt of special education and/or related services. Report cards can use symbols or codes to denote the student’s participation in special education classes or accommodations in general education classes. Report cards may also refer to another document that more fully describes the student’s progress. DCL: Report Cards and Transcripts for Students with Disabilities (OCR 2008).

A district must use the same type of report card system for students with disabilities and students without disabilities to advise parents about their children’s progress and to ensure the provision of comparable information in this regard. See Montebello (CA) Unified Sch. Dist. 20 IDELR 388 (OCR 1993). However, a district may use different report cards and progress reports for students with disabilities if it can demonstrate the reporting system is at least as effective and as frequent, as the regular reporting system. See Saddleback Valley (CA) Unified Sch. Dist., 17 IDELR 251 (OCR 1990) (children with severe disabilities may have unique needs that make the use of report cards and progress reports used in other schools ineffective or irrelevant, allowing for the use of an alternative reporting system).

There are some special considerations a school district should bear in mind when issuing report cards to students with disabilities. IDEA requires periodic reporting of progress, including reports on the progress the student is making on IEP goals and objectives. Report cards for students with disabilities must be at least as informative and frequent as the report cards provided for students without disabilities. Shenendehowa Cent. (NY) Sch. Dist., 114 LRP 23576 (OCR 2014).

Transcripts

School districts cannot provide different or separate aid, benefits, or services to students with disabilities, unless such action is necessary to put those students on a level playing field with other students. Notations on transcripts “used exclusively to identify a student as having a disability or identify education programs for students with disabilities unnecessarily provide these students with different educational benefits or services.” Therefore, a school violates Section 504 if it includes a notation on a student’s transcript indicating the student received special education or related services or that the student has a disability. DCL: Report Cards and Transcripts for Students with Disabilities (OCR 2008) See Appendix N.

As a general rule, a school district should avoid use of any course designation that appears to be used exclusively in connection with special education programs for students with disabilities, but labels such as “basic,” “level 1,” “practical,” “independent study,” or “modified curriculum” may be acceptable. However, terms such as “homebound instruction,” “resource room,” “PE requirement waived-medical,” “peer facilitator used,” “special opportunity school,” and “learning center” may be suspect. In looking at possible designations, schools should select terms that are used to describe programs it provides for nondisabled students, or in any event, could credibly be used to describe these programs. Letter to Runkel, 25 IDELR 387 (OCR 1996).

Asterisks or other symbols or codes may be used to identify the grade of a student reflects his level of achievement in a regular education class with modified course content, but OCR advises caution in using such coding. If the only instance in which a district uses special symbols is to indicate content modification for students with disabilities, then OCR suggests Section 504 is violated. The use of a code system that covers enhanced or greater-difficulty coursework completed by gifted and talented program students as well as any remedial courses is more likely to be viewed as nondiscriminatory.

A school district cannot modify grades or make special designations on transcripts to indicate that a student with a disability has participated in general education curriculum classes with the support of accommodations, such as note-taking assistance, Braille materials, or extended time on examinations. DCL: Report Cards and Transcripts for Students with Disabilities (OCR 2008). The identification on a transcript of special education coursework completed by a student with a disability may be permissible in “limited circumstances” where the designation is based on a difference in course content, rather than the manner in which the course is taught. Ann Arbor (MI) Pub. Sch. Dist, 30 IDELR 405 (OCR 1998). In the DCL, OCR indicates the use of notations to indicate a modified or alternate curriculum is consistent with the purpose of informing postsecondary institutions and prospective employers about a student’s academic credentials and achievements. Such notations are permissible so long as they do not disclose that the student has a disability, are not used to identify programs for students with disabilities and are consistent with the purpose of a student transcript.

Honor Roll

In most school districts, placement on the honor roll is based upon objective standards of academic performance. The use of uniform standards for measuring academic achievement does not violate Section 504 as long as academic distinctions are made through application of objective criteria and on a nondiscriminatory basis. Students may be required to perform on grade level or meet certain grade requirements. Schools can establish eligibility standards that recognize levels of academic excellence that some students with disabilities will never be able to achieve  See Prince William County (VA) Sch. Div., 25 IDELR 538 (OCR 1996).

Blanket exclusion from the honor role, based on the student’s disability, rather than the content of his curriculum, violates Section 504. See Fordland (MO) R-III Sch. Dist., 353 IDELR 127 (OCR 1988). Even if honor roll selection criteria are based on objective grading of uniform academic content, the school cannot deny students with disabilities opportunities to participate in honors programs. See Fort Smith (AR) Pub. Schs., 20 IDELR 97 (OCR 1993) (district’s grading system, which prohibited recognition of academic achievement for students with disabilities if they received an ability/effort grade rather than being graded on a competitive basis was discriminatory where there was no alternative honors program for students graded on that basis); Paris (TN) Special Sch. Dist. 1219, 51 IDELR 84 (OCR 2008) (a student who received instruction in a comprehensive developmental class was entitled to the same recognition given to other students who earned A’s and B’s in their courses); Gallia County (OH) Local Schs., 59 IDELR 264 (OCR 2012) (student could not be denied eligibility for academic awards because she had a 504 plan permitting her to retake tests on which she scored less than 75 percent).

School districts may establish of a list of “core courses” that must be completed in order to be eligible for honor roll recognition. School districts may also use a weighted grading system that assigns lower grade weights to some courses, including special education courses, for honor roll purposes, without violating Section 504, so long as the lower weightings result from an assessment of actual differences in the difficulty of the courses as compared to regular education courses. Generally, weighting systems will not result in discrimination under Section 504 if:

  • The weighting system is based on objective rating criteria;
  • Each subject or course is individually analyzed and assigned a degree of difficulty factor based upon its individual contents; and
  • The system is fair and simple to understand.

Categorization of courses based solely on the disability classifications of the students enrolled in the courses could violate Section 504. Letter to Ickes, 305 IDELR 50 (OCR 1989).

Schools should review their honor roll eligibility policies to ensure requirements do not have an adverse impact on students with disabilities. In King Philip (MA) Reg'l Sch. Dist., 110 LRP 59041 (OCR 2010), the district agreed to  amend its honor roll requirement that students be taking  a full course load so it would not apply to those students taking a reduced course load pursuant to an agreed upon Section 504 plan or individualized education plan.

If a student with a disability satisfies a district’s objective criteria for academic honors, the district must treat the student as it would any other award winner. This includes invitations to celebrations, the awarding of certificates or academic letters, and public recognition of the student’s achievement.

  • Paris (TN) Special Sch. Dist. 1219, 51 IDELR 84 (OCR 2008). Districts must include students with disabilities that qualify for the honor roll in honor roll announcements. A student with a disability who received instruction in a comprehensive developmental class was entitled to all of the recognition given to other students who made the honor roll.
  • Fort Smith (AR) Pub. Schs., 20 IDELR 97 (OCR 1993). A school district’s two-track grading system, which did not employ a competitive grading system for students with disabilities, restricted their opportunity to be placed on the honor roll. Moreover, no alternative opportunity to earn honors or awards reflecting their efforts and achievements was provided to that group of students. To resolve the complaint, the school district was permitted to continue its honor roll program and agreed to establish an alternate program under which students with disabilities, whose opportunity for honor roll placement was restricted by ability/effort grading, could earn honors and awards based on their efforts and achievement.

Calculating School-Wide GPA Standings

OCR makes no legal distinction between ranking students by GPA and determining which students will be identified on a school’s honor roll. Letter to Runkel, 25 IDELR 387 (OCR 1996). Because categorical exclusion is discriminatory, letter grades earned by students with disabilities in classes outside of the general curriculum must be included in GPA standings. However, school districts have the same options to exclude or discount such grades as they do with honor roll recognition as discussed in the previous section of this chapter. Students may be graded differently if the IEP or Section 504 team determines the grading methodology and the district may use a weighted grading system, if it is based on objective criteria, to calculate GPA standings.

Hornstine v. Township of Morrestown, 263 F.Supp.2d 887 (D.N.J. 2003), involved a challenge to the school’s system for choosing its senior class valedictorian based on calculated GPA. In this case, a special education student had a condition that caused her to suffer substantial fatigue and prevented her from attending a full day on the school’s premises. Her IEP called for afternoon instruction at home. Despite her challenges, the student took many honors classes, had the highest weighted grade-point average at the end of the seventh semester, and under the school policy should have been named the senior class valedictorian.

After a number of students, parents and others expressed concerns she had an unfair advantage because of her accommodations, the school superintendent proposed a retroactive amendment to the policy, allowing the board to name multiple valedictorians and to avoid naming the student as one of them. The student sought a temporary restraining order and other relief through legal action. The District Court granted the temporary restraining order, noting the board could modify its policies prospectively, but not retroactively, and denied the defendants’ motion to dismiss the disability discrimination claims. The court concluded the board and the superintendent clearly intended to discriminate against the student on the basis of her disability with the retroactive application, noting he superintendent investigated her educational experience and performance and calculated the accuracy of her grades, but did not do so for any other students.

Rewards and Incentives

School incentive and reward programs should treat students with disabilities no differently than they treat nondisabled students to avoid Section 504 problems. Districts must provide an equal opportunity for students with disabilities to participate in school programs and activities. Students with disabilities cannot be categorically excluded from participation in incentive and reward programs. As with grading policies, incentive or reward programs based on attendance may require modification of policies for students whose disabilities render meeting the established criteria for participation impossible.

Cases on Point

Awards
  • Park Hill (MO) Sch. Dist., 68 IDELR 78 (OCR 2016) The district resolved allegations that it engaged in discrimination by creating award ceremonies and lunch tables exclusively for students with disabilities.
Honor Society
  • Windsor (MO) C-1 Sch. Dist., 63 IDELR 53 (OCR 2013). A student, through an attorney, alleged the school district excluded him from membership in the honor society because of his Asperger syndrome and ADHD. To resolve the complaint, the school district agreed to provide all students, at the beginning of each academic year, with the honor society's selection procedures, rating scale, and the specific, objective standards used to determine membership eligibility. Specifically, it agreed to explain the criteria to the student and to provide the student with accommodations, if necessary, to prepare the application.  It also agreed to thoroughly review the national honor society membership application of the student and to revise the honor society's bylaws and procedures.
Exclusion from Reward Activity
  • DeSoto Parish (LA) Sch. Bd., 61 IDELR 175 (OCR 2013), Exclusion of a student from a track meet was not evidence of retaliation for filing a Section 504 complaint where the track meet was designed to be a reward for students who had avoided disciplinary action in the previous nine weeks and the student's exclusion stemmed from an altercation with a classmate. OCR noted the district also excluded the other student involved in the altercation and 38 additional students who had received disciplinary referrals in the previous nine weeks.
Notice of Incentive Trip
  • Southern Fulton (PA) Sch. Dist., 55 IDELR 53 (OCR 2009). The parent of a student with a disability alleged the district offered an incentive trip to seniors who scored proficient or advanced on the regular statewide assessment. However, the parent claimed, the district did not offer the incentive to students with severe disabilities who took an alternate assessment. The district informed alternative assessment test-takers about the incentive trip at a different time than others because the district received the test results at different times. Therefore, OCR concluded the district had legitimate, nondiscriminatory reasons for its actions and did not violate Section 504.
+ Chapter 10-Harassment on the Basis of Disability

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Section 504 Handbook

Chapter 10-Harassment on the Basis of Disability

Defining Disability-Based Harassment
Addressing Harassment
Bullying of Students with Disabilities
Did Disability-Based Harassment Occur?
Harassment & Denial of FAPE
The Standard Applied: OCR & the Courts
Constructive or Actual Knowledge
Appropriate Officials
Severity of the Conduct
Deliberate Indifference
Denial of FAPE Cases

Harassment and bullying of students with disabilities is an ongoing problem for schools. Guidance from the OCR frequently indicates students with disabilities are disproportionately affected by bullying and particularly vulnerable to bullying and harassment. Studies show that students with disabilities are two to three times more likely to be bullied than their nondisabled peers. See “Walk a Mile in Their Shoes,” abilitypath.org/walk-a-mile-in-their-shoes-report.

Defining Disability-Based Harassment

Disability-based harassment under Section 504 and Title II of the Americans with Disabilities Act is defined as “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student's participation in or receipt of benefits, services, or opportunities in the district's program.”  OCR Dear Colleague Letter on Prohibited Disability Harassment (06/25/2000). Examples of the types of behavior that might constitute disability harassment, taken from this guidance, are outlined below.

Examples of Disability-Based Harassment

  • Several students continually remark out loud to other students during class that a student with dyslexia is “retarded” or “deaf and dumb” and do not belong in the class; as a result, the harassed student has difficulty doing work in class and her grades decline.
  • A student repeatedly places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates' ability to enter the classroom.
  • A teacher subjects a student to inappropriate physical restraint because of conduct related to his disability, with the result that the student tries to avoid school through increased absences.
  • A school administrator repeatedly denies a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for required activities related to the student’s disability.
  • A professor repeatedly belittles and criticizes a student with a disability for using accommodations in class, with the result that the student is so discouraged that she has great difficulty performing in class and learning.
  • Students continually taunt or belittle a student with mental retardation by mocking and intimidating him so he does not participate in class.

Since its initial guidance on prohibited disability harassment in 2000, additional guidance documents from the Office for Civil Rights and the Office of Special Education and Rehabilitative Services have been issued. In October 2010, the Office for Civil Rights issued the first of several “Dear Colleague” letters addressing bullying. (See Appendix P). The relationship between bullying and harassment was clarified in the 2010 guidance. When bullying conduct also constitutes harassment, schools must look beyond bullying resolution procedures and ensure harassment policies and procedures are followed in resolving complaints.

Addressing Harassment

In addressing discriminatory harassment, schools must investigate and otherwise address complaints of harassment, taking steps to end the harassment, prevent the harassment from recurring, remedy the effects of the harassment and prevent retaliation. See Westfield (MA) Pub. Schs., 53 IDELR 132 (OCR 2009); Los Angeles (CA) Unified Sch. Dist., 46 IDELR 198 (OCR 2006). If efforts to address the harassment and prevent future incidents are written into a Section 504 plan, the district must also ensure the plan is implemented or run the risk of violating Section 504. See Santa Monica-Malibu (CA) Unified School District, 55 IDELR 208 (OCR 2010).

Appropriate responsive steps, according to OCR, may include:

  • Separating the accused harasser and the target;
  • Providing counseling for the target and/or harasser;
  • Taking disciplinary action against the harasser;
  • Providing training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and know how to respond;
  • Developing new policies against and procedures to allow students, parents, and employees to report allegations of harassment; and/or
  • Widely disseminating existing policies and procedures, including contact information for the district's Section 504 coordinator.

In Sevier County (TN) Sch. Sys., 115 LRP 1470 (OCR 2014), OCR suggested there were compliance issues with the school’s response to the internal complaint filed by the parents because the school did not provide written notice of its findings to the parents, even though the school adequately investigated and addressed the substantive issues of the complaint.

Bullying of Students with Disabilities

In August 2013, the Office of Special Education and Rehabilitative Services issued a Dear Colleague Letter on “Bullying of Students with Disabilities,” providing an overview of a school district’s responsibilities under IDEA to address bullying of students with disabilities. OSERS indicated the bullying of a student with a disability on any basis, disability-related or not, may result in a denial of the student’s right to a free appropriate public education. This is particularly likely if “as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide meaningful educational benefit.”  Additionally, placement of a student with a disability in a more restrictive environment to protect the student from bullying may violate the least restrictive environment requirement of IDEA.

The most recent guidance from OCR was issued on October 21, 2014. (See Appendix R). This advice builds on the OSERS letter, addressing the obligation of schools to respond to the bullying of students with disabilities, including bullying of students entitled to services under Section 504 only. The letter discusses the actions schools must take when bullying interferes with the education of a student with a disability who is bullied on any basis and provides insight into how OCR analyzes complaints involving bullying of students with disabilities.

Did Disability-Based Harassment Occur?

OCR analyzes disability-related bullying or harassment complaints by asking the following questions:

  • Was a student with a disability bullied by one or more students based on the student’s disability?
  • Was the bullying conduct sufficiently serious to create a hostile environment?
  • Did the school know or should it have known of the conduct?
  • Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects?

If the answer to all of the questions is “yes,” OCR would find a disability-based harassment violation of Section 504 occurred. However, a “no” answer to any question would result in a finding that disability-based harassment has not occurred. Presumably, OCR would ask these same questions when looking at any type of harassment, and would move to the next stage of the analysis, whether or not the bullying or harassment is disability-related harassment.

Harassment & Denial of FAPE

After determining if bullying or harassment on any grounds has occurred, OCR will consider whether the student with a disability was receiving services under IDEA or Section 504 and whether the harassment resulted in a denial of the right to a free appropriate public education under Section 504. Whenever a school knew or should have known the bullying may have affected the student’s receipt of services, under IDEA or Section 504, the school must meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs are still being met, and if not, make changes to the IEP or Section 504 plan. To meet this obligation, unless the investigation clearly shows the bullying did not affect the receipt of a free appropriate public education, OCR suggests the school should promptly convene the student’s IEP or Section 504 team to determine whether and to what extent:

  • The student’s educational needs have changed (as evidenced by indicators such as a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in absence from classes or Section 504 service sessions);
  • The bullying impacted the student’s receipt of IDEA Section 504 services;
  • Additional or different services, if any are needed.

Changes, if needed, should be made promptly and should not put the onus on the student with the disability to avoid or handle the bullying.

The Standard Applied: OCR & the Courts

In investigating complaints of harassment, OCR applies a lower standard than the courts in determining if a school will have liability for harassment. The Supreme Court, in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), established the test for peer-on-peer sexual harassment cases under Title IX. Following Davis, most courts have adapted that test for imposing liability for peer-based, disability-related harassment, requiring a plaintiff to show:

  • The student is an individual with a disability;
  • The student was harassed based on his disability;
  • The harassment “was sufficiently severe or pervasive" that it altered his education and created an abusive environment;
  • The school knew (had actual knowledge) of the harassment; and
  • The school was deliberately indifferent to the harassment. See Werth v. Board of Directors of the Public Schools of the City of Milwaukee, 472 F.Supp.2d 1113 (E.D. Wis. 2007).

The Eighth Circuit Court of Appeals follows a bad faith or gross misjudgment standard rather than one of deliberate indifference. See M.P. v. Indep. Sch. Dist. No. 721, 439 F.3d 865 (8th Cir. 2006), reh’g denied, 110 LRP 62763 (8th Cir. 2006).

Cases on Point

Harassment Based on Disability

For a violation of Section 504 or Title II of the ADA, the harassment must be because of the disability.

  • Dodson v. Cartwright Elem. Sch. Dist., 2016 WL 3437602, 67 IDELR 146 (D. Ariz. 2016). Noting that the parents of an IDEA-eligible student never connected their daughter's alleged harassment by peers to her disability, the district court held their complaints about the harassment were not protected activity under Section 504.
  • Doe v. Torrington Bd. of Educ., 179 F.Supp.3d 179 (D. Conn. 2016). A high school student with SLD could not pursue Section 504 or Title II claims because the student “did not sufficiently allege that anyone actually harassed, bullied, or assaulted him because of his disability or perceived disability, rather than some other reason, such as personal animus."
  • Dorsey ex rel. J.D. v. Pueblo Sch. Dist. 60, 140 F.Supp.3d 1102 (D. Colo. 2015). A student with hypoglycemia and asthma did not allege a connection between her disabilities and her bullying by peers, which included having her snacks stolen and being physically beaten.
  • R.S. by McClarnon v. Bedford Cmty. Sch. Dist., 109 F.Supp.3d 1060 (S.D. Iowa 2015). A high school student sufficiently linked bullying to his disability where his football teammates' alleged practice of calling him "idiot" and "moron" suggested that the harassment related to his learning disability.
  • Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F.Supp.3d 221 (E.D.N.Y. 2015). The fact that bullying occurs does not establish discriminatory animus. Parents failed to show a link between their son’s ADHD or learning disabilities and alleged harassment, which included hitting and threats to kill.
  • S. by Shihadeh v. Marple Newtown Sch. Dist., 82 F.Supp.3d 625 (E.D. Pa. 2015). Allegations that the mere presence of a particular classmate, who allegedly stared or leered, caused a 17-year-old girl to suffer significant anxiety were not enough to sustain disability harassment claims under Section 504. Parents’ failure to identify specific acts of bullying motivated by their daughter’s disability entitled the district to judgment.
  • Thomas v. Springfield School Committee, 59 F.Supp.3d 294 (D. Mass. 2014). To support a case of disability-based harassment under Section 504, the victim must be targeted because of his or her disabilities.  In the absence of evidence a student with a learning disability and cognitive impairments was sexually assaulted because of her disability, the sexual assault would not support a claim for disability-based harassment.
  • Chesapeake (VA) Pub. Schs., 113 LRP 5990 (OCR 2012). The hitting of a student was motivated by the color of the student’s clothes, not his intellectual disability.
  • Ann Arbor (MI) Pub. Schs., 56 IDELR 84 (OCR 2010). The district had no reason or evidence to link the alleged harassment of the student to the student’s autism.
  • Hemet (CA) Unified Sch. Dist., 54 IDELR 328 (OCR 2009). The fact a student and parent did not initially mention the student's disabilities or disability-based harassment when they complained of frequent name-calling on the playground did not excuse the distric’s inaction, given that it had reason to suspect the harassment was connected to the fifth-grader’s ADHD.
  • Toltec (AZ) Elem. Sch. Dist., 52 IDELR 22 (OCR 2008). Teasing incidents related to the student’s choice of clothes and language, not her disability.

Constructive or Actual Knowledge

OCR applies a “knew or should have known” standard with regard to the school’s knowledge of the harassment. Unlike this constructive knowledge standard, case law continues to require that a school employee with authority to remedy the situation have actual knowledge of the harassment.

Cases on Point

Actual Knowledge

To impose monetary damages on a school, courts require that a school employee with authority to take action have actual knowledge of the harassment.

  • Estate of Barnwell v. Watson, 880 F.3d 998 (8th Cir. 2018). A district can't be liable for disability-based harassment under Section 504 if it didn't know about it. A parent's generalized statements about the possibility of bullying are not enough to put a district on notice of disability-based harassment. Although the mother told the IEP team she was worried about bullying because of the student's past difficulties with peers, she did not describe any incidents of harassment or identify any students who were causing problems for her son. Those generalized concerns, without more, were not enough to alert the district to the student's bullying by his peers.
  • S. by Sisneros v. Oakland Unified Sch. Dist., 2015 WL 346347, 565 IDELR 234 (N.D. Cal. 2015). The parent of a student with a severe intellectual disability could pursue Section 504 claims against a school district that allegedly failed to respond to reports of bullying on the school bus. If the bus driver actually notified district officials about the bullying as the parent claimed, the district's failure to investigate the matter or take steps to protect the student could amount to disability discrimination.
  • Pantell v. Antioch Unified Sch. Dist., 2015 WL 757612, 115 LRP 7567 (N.D. Cal. 2015). Because the parent an elementary student with ED failed to show the superintendent had actual knowledge of the purported peer harassment, the district court dismissed the parent's claim of purported abuse, which included humiliation, the use of restraint, and the denial of food and bathroom privileges.
  • Visnovits v. White Pine County Sch. Dist., 2015 WL 1506299, 115 LRP 17196 (D. Nev. 2015). Absent evidence that a Nevada district knew she was being harassed on the basis of disability, a high school student with a visual impairment could not show that the district was deliberately indifferent to the alleged bullying. . Not only did the student here admit that she did not report past incidents of bullying, but she expressed doubt that her classmate knew about her disability. As such, the student could not demonstrate that the district knowingly allowed her classmate to harass her or that it failed to intervene. The U.S. District Court, District of Nevada granted the district's motion for judgment.
  • Williamston (MI) Cmty. Schs., 56 IDELR 22 (OCR 2010). The fact that a student with cognitive impairments never filed a written complaint against schoolmates who regularly called him “retard” and “moron” did not excuse a district’s failure to investigate those incidents.

Appropriate Officials

In Moore v. Chilton County Board of Education, 1 F. Supp. 3d 1281 (M.D. Ala. 2014), parents of a student with disabilities, who jumped to her death from an interstate overpass, failed to establish a claim for disability discrimination under the Americans with Disabilities Act or Section 504. The court found the evidence was insufficient to show appropriate school officials had actual knowledge of the harassment. In the absence of evidence the student’s teachers or bus driver had authority to take corrective measures in response to complaints of peer disability-related harassment, the court concluded the parents made “no cogent argument that these individuals qualify as appropriate persons.” The court noted the assistant principal, who may have possessed the requisite authority, presented affirmative evidence she had no knowledge of any bullying against the student and never received a complaint of peer-on-peer disability-based harassment or bullying from either a student, teacher, or the parents.

Severity of the Conduct

OCR also applies a lower standard in determining if the conduct rises to a level that effectively denies the student services or benefits provided by the school. The courts have generally required that the conduct be severe, persistent and objectively offensive. In the past OCR required the conduct be severe, persistent or pervasive. In its latest guidance, OCR simply refers to the conduct being “sufficiently serious.”

Although the Davis court concluded a one-time incident of severe peer harassment was not enough to support monetary damages against a district for violating a federal non-discrimination statute, OCR has suggested it is sufficient to trigger a school district’s duty to respond in an appropriate manner. In its 2010 letter, OCR indicated harassment does not have to include intent to harm, involve repeated incidents or be directed at a specific victim. See also Philadelphia (PA) Sch. Dist., 46 IDELR 169 (OCR 2006) (depending on the circumstances, one incident of harassment can create a hostile environment). But see Wright v. Carroll County Bd. of Educ., 2013 WL 4525309, 113 LRP 34730 (D. Md. 2013) (parents cannot use Section 504 or Title II to hold districts responsible for isolated incidents of bullying; although the conduct was serious, a single instance of peer harassment is not enough to show deliberate indifference); C.M. v. Pemberton Twp High Sch., 2017 WL 384274, 117 LRP 3841 (D.N.J. 2017) (allegations a New Jersey district failed to investigate two incidents of peer harassment were not enough to support the parent's Section 504 and Title II claims).

In Moore, the court also dismissed the parent’s Section 1983 substantive due process claim, finding the board had no constitutional duty to take steps to prevent a high school student’s peers from bullying her or to prevent her suicide. The court found the board’s failure to act was not enough to state a substantive due process violation, as required for a Section 1983 claim. Due process claims, based on both the special relationship and state-created danger theories, were also rejected by the court in Estate of Lance v. Lewisville Independent School Dist, 743 F.3d 982 (5th Cir. 2014). In this case, bullying and harassment were alleged as reasons a special needs student hanged himself in the school nurse’s bathroom. The court found no evidence that the school district knew the student’s suicide was imminent or that the school in any way affirmatively increased the chance of suicide.

Cases on Point

Severity of Conduct
  • M. v. Pemberton Twp High Sch., 2017 WL 384274, 117 LRP 3841 (D.N.J. 2017). Allegations that a New Jersey district failed to investigate two incidents of peer harassment against a high schooler with ADHD were not enough to support the parent's Section 504 and Title II claims. The humiliation that the student reportedly suffered after being tripped and bitten by schoolmates did not result in her exclusion. The parent’s failure to allege the student's exclusion from a district program, service, or activity barred her Section 504 claim.
  • Lewis v. Blue Springs Sch. Dist., 2017 WL 5011893, 71 IDELR 33 (W.D. Mo. 2017). Whether the district violated Section 504 will frequently turn on whether it investigated the alleged harassment in a timely manner and took appropriate steps to prevent it from recurring. When evidence suggested a district did not address persistent peer bullying that exacerbated a student's depression and led him to take his own life, the district faced charges that it prevented the student from participating in and benefitting from the district's programs and activities on the basis of disability in violation of Section 504.

Deliberate Indifference

Both Lance and Estate of Barnwell v. Watson, 44 F.Supp.3d 859 (E.D. Ark. 2014), address the school district’s response to reported incidents of student-on-student harassment of special-needs students. To avoid liability under Section 504, the school must respond reasonably to acts of known harassment, and cannot act with deliberate indifference. In Lance, the district’s investigation of altercations, punishment of student offenders, efforts to promote positive relationships between the student and other students, adoption of anti-bullying policies that met national standards, and provision of employee training on bullying and harassment overcame any claim of deliberate indifference.

Without deciding if the district had acted with deliberate indifference, the court in Barnwell denied the school district’s motion to dismiss, concluding the parents had “alleged sufficient factual matter to state a claim.” Those allegations included that the district knew the student had physical oddities including a pronounced accent relating to Asperger’s syndrome, the student had been bullied at his previous school and the student was having trouble getting to class on time due to other students blocking his passage. The student wrote his school counselor a letter stating that he wanted to leave school because he had no friends and that he couldn’t handle “being an outcast for four more years.” Despite this knowledge, the district did not develop a plan to investigate or address bullying during an IEP meeting and the student committed suicide five days later, after additional alleged harassment during those five days. The district court later granted summary judgment for the superintendent. On appeal in Estate of Barnwell v. Watson, 880 F.3d 998 (8th Cir. 2018), the court held that the bullying of the student who committed suicide did not rise to the level of actionable peer harassment and that the response by school officials was not clearly unreasonable in light of the limited information it had before the student’s death.

In Sutherlin v. Independent Sch. Dist, No. 40 of Nowata County, 960 F. Supp. 2d 1254 (N.D. Okla. 2013), the court found allegations the district disregarded more than two dozen reports of verbal and physical harassment of a student with Asperger’s syndrome, failing to investigate or take any action to prevent additional bullying, sufficiently pleaded facts outlining deliberate indifference to support a claim for disability harassment.

Cases on Point

Deliberate Indifference
  • B. v. Board of Educ. of Harford County, 819 F.3d 69 (4th Cir. 2017) The district was not indifferent to peer bullying where it investigated each reported incident and took steps to prevent future bullying.
  • Nevills ex rel. A.N. v. Mart Indep. Sch. Dist., 608 Fed. Appx. 217 (5th Cir. 2015). Evidence of a school’s efforts to investigate and prevent incidents of disability-based bullying was sufficient to defeat the parents' Section 504 and Title II claims. Here the principal documented her investigation of each reported incident of bullying, including the punishments administered. Those records, along with teacher training and schoolwide assemblies on bullying, showed the district was not deliberately indifferent to harassment.
  • M. by Marchese v. Dry Creek Joint Elem. Sch. Dist., 595 Fed. Appx. 698 (9th Cir. 2014). A school district did not violate Section 504 by failing to respond to multiple reports of disability-based peer harassment in PE. The district responded to five incidents over a six-month period with increasingly intensive measures.  The fact the measures were not fully effective did not equate to deliberate indifference.
  • Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014) The district, which investigated all reported incidents of peer harassment against a 9-year-old with disabilities and took appropriate disciplinary action against everyone involved, was not deliberately indifferent.
  • Shadie v. Hazleton Area Sch. Dist., 580 Fed. Appx. 67 (3rd 2014). Prompt investigation of reports a classroom aide mistreated a student with autism, meetings with parents and teachers, and transfer of the aide during the period of investigation defeated a claim of deliberate indifference.
  • Long v. Murray County Sch. Dist., 522 Fed. Appx. 576 (11th Cir. 2013). In a Section 504 action stemming from the suicide of an 11th-grader with Asperger syndrome who was subjected to disability-based, the parents could not establish a viable claim that the school’s response was clearly unreasonable bullying because the district swiftly addressed individual incidents of harassment and had reason to believe its remedial actions were working.
  • Doe v. Big Walnut Local Sch. Dist., 57 IDELR 74 (6th 2009). The school district did not act with deliberate indifference where it developed a safety plan to prevent further bullying of a student with cognitive impairments.
  • S. v. Eastern Kentucky University, 532 F.3d 445 (6th Cir. 2008), reh'g denied, 110 LRP 62749 (6th Cir. 2008). The fact that the school investigated all altercations between the students, conducted interviews with students, separated the offenders from the student, imposed discipline, provided training, and communicated with parents, indicated that it took affirmative steps to halt harassment, demonstrating it was not deliberately indifferent.
  • Bowe v. Eau Claire Area Sch. Dist., 2018 WL 791416, 118 LRP 5131 (W.D. Wis. 2018). The school investigated each reported incident of harassment against a teenager with Asperger syndrome and took some form of remedial action in response; therefore, it was not deliberately indifferent to peer bullying. Counseling is not an unreasonable response to peer bullying as long as the district keeps track of its effectiveness and is willing to take more serious remedial action if necessary.
  • P.T.C. by C.C. and T.C. v. Nelson County Sch. Dist., 2016 WL 3264200, 68 IDELR 19 (W.D. Ky. 2016). Noting that a Kentucky district's administrators and officials responded to each reported incident of peer harassment against a student with a mild intellectual disability, the District Court rejected allegations that the employees were deliberately indifferent to bullying.
  • W. v. Johnston County Board of Educ., 2014 WL 4771613 (E.D.N.C. 2014). A school’s response to an alleged sexual assault of a student with a disability in a restroom was not deliberately indifferent. The incident was promptly and thoroughly investigated, and the alleged perpetrator was transferred out of one class and prohibited from interaction with the alleged victim in another class in which both students were enrolled.
  • L. v. Leander Indep. Sch. Dist., 2013 WL 3822100, 62 IDELR 174 (W.D. Tex. 2013). The school’s attempts to put an end to occasional mistreatment of a legally blind child with autism belied his parents' claims that the district was aware that the student was continuously bullied, or that it neglected to take prompt remedial measures in response to ongoing harassment.
  • Sevier County (TN) Sch. Sys., 115 LRP 1470 (OCR 2014). By taking prompt action to separate a student with ADHD from his teacher after she allegedly harassed him on the basis of his disability--accusing him of using his disability as an excuse not to complete work—the school district ensured the student wouldn't be continually subjected to a hostile environment
  • Minidoka County (ID) Joint School District, 114 LRP 44541 (OCR 2014). OCR found the district dropped the ball when it failed to respond to disability-based name-calling after the parent repeatedly complained about students calling her daughter "retarded" and "idiot."
  • Los Feliz (CA) Charter Sch. for the Arts, 113 LRP 52559 (OCR 2013). Notice of harassment gives rise to a duty to investigate. Despite having notice of the harassment and the physical manifestations of an autistic student’s stress, the school failed to conduct any investigation and let each staff member respond to the allegations independently.

As with other areas of Section 504 compliance, training staff on disability-related harassment is crucial. Staff members must be able to identify potential harassment when they witness or hear about it. School employees may mistakenly believe name-calling isn’t serious enough to constitute disability harassment, but OCR takes the opposite position. While a court may not impose liability on a school for mere name-calling, OCR will investigate these claims and take enforcement action. OCR has stated that harassing conduct may take many forms, including verbal acts and name-calling, graphic and written statements; or other conduct that may be physically threatening, harmful, or humiliating. School personnel should be able to identify conduct that meets these standards, whether or not parents characterize their complaint as disability-based harassment.

Denial of FAPE Cases

Prior to the latest guidance, courts have recognized that bullying and harassment can result in a denial of the right to a free appropriate public education. See M.L. v. Federal Way School Dist., 394 F.3d 634 (9th Cir. 2005); Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194 (3rd Cir. 2004); D.A. v. Meridian Joint Sch. Dist. No. 2, 289 F.R.D. 614, 113 LRP 6930 (D. Idaho 2013). There have been a number of cases addressing the issue, with courts and hearing officers coming down on both sides of the issue.

Free Appropriate Public Education not Denied

  • S. v. District of Columbia, 2014 WL 4650885, 114 LRP 41194 (D.D.C. 2014)
  • M. v. Central Bucks School Dist., 992 F.Supp.2d 452 (E.D. Pa. 2014)
  • E. v. Boyerton Area Sch. Dist., 452 Fed. Appx. 172 (3rd Cir. 2011)
  • B. v. Waynesboro Area Sch. Dist., 2011 WL 718516, 56 IDELR 67 (M.D. Pa. 2011)
  • Corvallis Sch. Dist., 115 LRP 61 (SEA OR 2014).
  • Southmoreland Sch. Dist., 111 LRP 50995 (SEA PA 2011)
  • Harrisburg City Sch. Dist., 55 IDELR 149 (SEA PA 2010)

Free Appropriate Public Education Denied

  • Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194 (3rd 2004)
  • L. v. Federal Way School Dist., 394 F.3d 634 (9th Cir. 2005)
  • K v. New York City Department of Education, 779 F. Supp. 2d 289, 63 IDELR 256 (E.D.N.Y. 2014)
  • Marion County (FL) Pub. Schs., 67 IDELR 128 (OCR 2015)
  • Hillsborough County (FL) Public Schools, 115 LRP 57977 (OCR 2015)
  • Colton Joint Unified Sch. Dist., 117 LRP 52248 (SEA CA 2017).
  • In Re: Barnstable Pub. Schs., 111 LRP 48728 (SEA MA 2011)

In T.K v. New York City Department of Education, 779 F. Supp. 2d 289, 317 (E.D.N.Y. 2011), the court held,

A disabled student is deprived of a FAPE when school personnel are deliberately indifferent to or fail to take reasonable steps to prevent bullying that substantially restricts a child with learning disabilities in her educational opportunities. The conduct does not need to be outrageous in order to be considered a deprivation of rights of a disabled student. It must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment.

The case returned to the court on the issue of tuition reimbursement in 2014. T.K v. New York City Department of Education, 32 F. Supp. 3d 405 (E.D.N.Y. 2014), aff’d, 810 F.3d 869 (2nd Cir. 2016). In this case, the court created affirmative obligations for school districts in developing IEP’s for children who are the targets of bullying. The court found the program offered by the school district did not provide a free appropriate public education, stating:

FIRST, where there is a legitimate concern that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law the IEP team is required to consider evidence of bullying in developing an appropriate Individual Education Program (“IEP”). The record shows that L.K.’s IEP team did not take evidence of bullying into account in developing her IEP for the 2008–09 school year. This failure prevented her parents from meaningful participation in the IEP’s development.

SECOND, where there is a substantial probability that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law an anti-bullying program is required to be included in the IEP. No such program was developed for L.K.

THIRD, if a school district purports to address bullying in an IEP, it may not, as a matter of law, do so in abstract terms incomprehensible to lay parents, effectively preventing them from meaningful participation in developing the IEP and from comprehending that the issue was addressed. Language and explanations understandable to parents must be used in developing an anti-bullying program.

While this court’s conclusions may reflect best practice, it is questionable if other courts will require each student’s IEP or Section 504 plan to address bullying to this extent.

The Pennsylvania court in N.M. v. Central Bucks School Dist., 992 F.Supp.2d 452 (E.D. Pa. 2014), examining allegations the district’s inadequate response to bullying denied a student with PTSD and an anxiety disorder a free appropriate public education, reviewed the steps the district took to eliminate the culture of bullying and harassment in compliance with the OCR guidance in the October 2010 Dear Colleague Letter. Finding the district had been responsive to parental concerns, the court rejected the argument the school district denied a free appropriate public education in not convening the IEP team to discuss adding social, emotional or behavioral supports to the student’s program or placement. The court found the district did attempt to help the student—even though measures were not included in the IEP-—with his social problems related to bullying and that his most recent IEPs did provide emotional supports.

Simply addressing bullying in the IEP or Section 504 plan may not be sufficient. The school must also take steps to ensure those items are implemented. See Santa Monica-Malibu (CA) Unified School District, 55 IDELR 208 (OCR 2010)(although the district wrote specific items to address bullying into the student’s IEP, it failed to ensure those items were implemented until after the student was subjected to further harassment).

Physical injuries alone may be insufficient to establish bullying resulted in a denial of the right to a free appropriate public education. S.S. v. District of Columbia, 2014 WL 4650885 (D.D.C. 2014). Mere apprehension a student may face bullying is also insufficient, especially where the proposed placement has policies and procedures in place to address bullying. See J.E. ex rel J.E. v. Boyertown Area Sch. Dist., 834 F.Supp.2d 240 (E.D. Pa. 2011), aff’d, 452 Fed. Appx. 172, 2011 WL 5838479, (3rd Cir. 2011).

Resolving complaints in denial of free appropriate public education cases will likely require schools to train staff members on their obligations under Section 504. In Fort Worth (TX) Acad. of Fine Arts, 71 IDELR 108(OCR 2017), the school committed to changing how it handles reports of disability-based harassment in a resolution agreement with OCR. Under the agreement, the district promised to train staff members on their obligations to evaluate students for determining whether the effects of the bullying or harassing behavior changed the student's educational needs such that the 504 plan or IEP would require modifications.

+ Appendix A-School Compliance Coordinators

Print Appendix A


Section 504 Handbook

Appendix A: School Compliance Coordinator

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

 

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

 

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

 

_______________________________ School

Name:________________________________________

Address: ______________________________________

Phone: _______________________________________

Email: ________________________________________

+ Appendix B-Forms

Print Appendix B-Forms


Section 504 Handbook

Appendix B: Forms

Notice of Student and Parent Rights under Section 504
SAMPLE Section 504 Due Process Procedures
Section 504 Referral Form
Parental Consent for Initial Evaluation
Notice of Meeting – Parental Request for Section 504 Evaluation
Section 504 Evaluation Committee Meeting Form
Section 504/ADA Student Services Plan Form
Transferring Student: 504 Evaluation Pending
Transferring Student: 504 Plan Alert
Section 504 Review of Services
SELF-EVALUATION FOR SECTION 504/ADA
Checklist for the 504 Determination of Eligibility & Services

Notice of Student and Parent Rights under Section 504

The following is a description of student and parent rights granted by federal law. The intent of the law is to keep you fully informed concerning decisions about your child and to inform you of your rights if you disagree with any of these decisions.

YOU HAVE THE RIGHT TO:

  • Have your child take part in, and receive benefits from public education programs without discrimination based on a disability.
  • Have the school advise you as to your rights under federal law.
  • Receive written notice with respect to identification, evaluation, or placement of your child.
  • Have your child receive a free appropriate public education. This includes the right to be educated with other students without disabilities to the maximum extent appropriate. It also includes the right to have the school make reasonable accommodations to allow your child an equal opportunity to participate in school and school-related activities.
  • Have your child educated in facilities and receive comparable services to those provided students without disabilities.
  • Have your child receive accommodations or services under Section 504 of the Rehabilitation Act of 1973 if he/she qualifies.
  • Have evaluation, educational, and placement decisions made based upon a variety of information sources, and by individuals who know your child, the evaluation data, and placement options.
  • Have transportation provided to a school placement setting at no greater cost to you than would be incurred if the student were placed in a program operated by the school.
  • Give your child an equal opportunity to participate in non-academic and extracurricular activities offered by the school.
  • Examine all records relating to decisions regarding your child’s identification, evaluation, educational program, and placement.
  • Obtain copies of educational records at a reasonable cost unless the fee would effectively deny you access to the records.
  • Receive a response from the school to reasonable requests for explanations and interpretations of your child’s records.
  • File a complaint with the Section 504 Compliance Coordinator, under the district complaint/grievance procedures.
  • Request mediation to settle disputes arising out of any decision about your child’s identification, evaluation, educational program or placement.
  • File a complaint with the Office for Civil Rights of the United States Department of Education.
  • Request an impartial due process hearing to settle disputes arising out of any decision about your child’s identification, evaluation, educational program or placement. You and your child may take part in the hearing and have an attorney represent you. You may appeal this decision to the board of education and to a court of competent jurisdiction.
  • Suffer no retaliation as a result of exercising your rights under these provisions.

The person at the school who is responsible for Section 504/ADA compliance is _____________________________, who may be contacted at ________________________________________________.

SAMPLE Section 504 Due Process Procedures

Parents may request an impartial due process to resolve differences involving the identification, evaluation, educational program or placement of a student with a disability under Section 504.   The proceedings will be presided over and decided by an impartial hearing officer, selected by the Board of Education.

Requests for a due process hearing must be submitted in writing to the Section 504 Compliance Coordinator,  _____________________________, who may be contacted at ________________.

Upon receipt of a request for hearing, the Section 504 Coordinator shall:

  • Secure the services of an impartial hearing officer, approved by the board.
  • Provide parents with notice of the following at least fifteen (15) days prior to the date set for the hearing:
  • A statement of the time and place where the hearing will be held.
  • A statement that relevant student records are available for examination.
  • A short and plain statement of the matters asserted.
  • A statement of the rights that will be afforded at the hearing including:
  • The right to be represented by counsel;
  • The right of the student and the parents to be present at the hearing;
  • The right to confront and cross-examine witnesses called by the school district at the hearing;
  • The right to present their own witnesses;
  • The right to have an orderly hearing; and
  • The right to a fair and impartial decision based on the evidence presented at the hearing.

The hearing officer will preside over the hearing, swear in witnesses, and determine whether the evidence presented should be admitted. The rules of evidence will not apply to these proceedings, but any evidence offered by either party should be relevant to the issues to be decided. The hearing shall be recorded. The recording of the Section 504 due process hearing shall be on file at the District office and will be available for review upon request to the parents and/or any of the involved parties.

The hearing officer’s decision will be reduced to writing and will include the date, the hearing officer’s findings of fact and conclusions of law. The decision will be delivered to the Superintendent and to the parent or guardian of the student within ten (10) days following completion of the hearing, which in no event shall be later than forty-five (45) days after receipt of the request for a hearing.

The decision of the hearing officer shall be binding on all parties concerned, subject to appeal to the board of education.

A parent dissatisfied with the result of the due process hearing may appeal the decision to the board of education. Notice of appeal, in writing, must be provided to the clerk of the board within ten (10) days after the date on the hearing officer’s decision. Within ten (10) days after receiving the notice, the board will set a time and place for the appeal hearing, which shall be held within 30 days after receipt of the notice of appeal. At the appeal hearing, the parent will be afforded the same rights as at the hearing before the impartial hearing officer. The board shall render a decision in the matter within ten (10) days after the close of the hearing. The decision of the board of education in this matter shall be final.

Section 504 Referral Form

Date:
Student:
School:
Date of Birth:
Teacher:
Phone:
Parents/Guardian:
Address:
Referred by:
Position:

1. Reason for referral:

2. Accommodations and interventions attempted (SIT plan):

3. Has the student ever been referred, evaluated and/or received services from special education?
❏ Yes ❏ No

Referral action:

Licensed Staff Member:
Date:

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Parental Consent for Initial Evaluation

School:
Date:
Student Name:
Date of Birth:
Age:
Grade:
Parent/Guardian:
Address:

Your child has been referred to the building Section 504 Coordinator for further evaluation to determine eligibility for accommodations/interventions under Section 504 of the Rehabilitation Act of 1973. The Section 504 Building team needs to evaluate your child in the following areas:

 

Your signed consent is required to complete this evaluation. The findings will be reported, recorded, filed and communicated in strict accordance with applicable district policies and state and federal law.

This assessment will be completed within thirty-five (35) school days unless an alternative timeline has been mutually agreed upon and documented. A copy of your Parent Rights under Section 504 of the Rehabilitation Act of 1973 will be provided to you.

Please Check a Line:
As a parent or guardian, I ❏ DO ❏ DO NOT (please check one) consent to this evaluation. I understand that my consent may be revoked at any time prior to the completion of this evaluation. Revocation of consent will have no impact on the parts of the evaluation which may be already completed.

Parent or Guardian
Signature(s):
Date:

Please return this form to the Central Office at the school.

Notice of Meeting – Parental Request for Section 504 Evaluation

Date:
Student Name:
School:

Dear

We received your request for a Section 504 evaluation for your child on MONTH DAY, YEAR.

The first step in considering your child’s eligibility for a Section 504 Plan is to have you meet with your child’s Student Intervention Team (SIT). At this meeting, we will review information in your child’s education records and any documents you may have that support your concerns. With your help, we will decide if we need additional evaluation information or if we can make a determination of your child’s eligibility based on the information provided by you and school personnel.

If additional information is needed, we will seek your consent for evaluation, complete the evaluation and hold another meeting to determine eligibility.

If we can determine your child is eligible based on the information considered at the meeting, the team will recommend aids, services and accommodations that will address your child’s individual needs.

The meeting is scheduled for:

Date:
Time:
Location:

Your support and participation in working with us as a team is essential for your child’s success. Please contact me to confirm your attendance at this meeting or if you have any questions.

Sincerely,
Building 504 Coordinator

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District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Section 504 Evaluation Committee Meeting Form

Student Name:
Date of Birth:
School:
Grade:
Parent/Guardian:
Phone:
Date:
Time:
Reason for referral:
Evaluation data and comments (Complete all that were reviewed.)
Attendance:
Academic Records:
Medical Records:
Behavior:
Teacher Input:
Parental Input:

Eligibility:
It is determined that the student listed above has a disabling condition that exists under 504 of the Rehabilitation Act of 1973 and this condition substantially limits a major life activity.
❏ Yes ❏ No

504 Disability:

The written notice of parental rights was given:
❏ Yes ❏ No

Committee Members:

Section 504/ADA Student Services Plan Form

Date:
Student:
School:
Date of Birth:
Participants:

Part 1: Justification for Services

The student has been determined to be a student with a disability under the Section 504 guidelines?
❏ Yes ❏ No

Briefly document the basis for determining the disability:

Area of Difficulty:
Accommodations:

Area of Difficulty:
Accommodations:

Area of Difficulty:
Accommodations:

Area of Difficulty:
Accommodations:

Do parents have written notice of parental rights?
❏ Yes ❏ No

Committee Members:

Transferring Student: 504 Evaluation Pending

To: 504 Coordinator at _____ School

From: 504 Coordinator at_____ School

Date:

RE: Transferring Student – 504 Evaluation Pending

This notice is to inform you that the following student, who is transferring to your school, needs to be evaluated to see if s/he is eligible for services or accommodations under Section 504:

Name of Student:
Date of Birth:
Pupil ID No.:

Evaluation is pending because:
❏ The student’s parent requested a Section 504 plan
❏ Our staff suspects the student may be eligible and has referred the student for evaluation

Evaluation has been recommended for the following reasons:

A copy of the student referral form is in the student’s cumulative file and attached to this notice. If you need information from any of our staff in completing the evaluation, please let me know.

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Transferring Student: 504 Plan Alert

To: 504 Coordinator at _____ School

From: 504 Coordinator at_____ School

Date:

RE: Transferring Student with a 504 Plan

This notice is to inform you that the following student, who is transferring to your school, has a 504 Plan:

Name of Student:
Date of Birth:
Pupil ID No.:

A copy of the 504 Plan is (check all that apply):

❏ In the student’s cumulative file.
❏ Attached to this notice.
❏ Available on-line in the password protected student database system.

Comments:

cc
District Section 504 Coordinator
Student file
Section 504 School Coordinator file

Section 504 Review of Services

Date:
Student:

Purpose of the Meeting: It is necessary to periodically review the student’s progress under Section 504 services and make recommendations to continue, modify or terminate the program(s). (504 plan should be reviewed once each year)

Discussion of Progress

Recommendation

  • Continue present services with no changes.
  • Modify the present program (see attached).
  • Exit from program based upon the following evaluation results.

Discussion of Recommendations

The following members of the Section 504 Committee agree with the recommendations.

SELF-EVALUATION FOR SECTION 504/ADA

Besides the physical evaluation of the school district, a group of interested persons, including persons with disabilities and administration will meet periodically to ensure that the programs and policies of USD #441 do not discriminate. The group will examine the following:

A. PROCEDURAL REQUIREMENTS

Prior to the beginning of each school year does your school district advise students, parents, employees, and the general public that all educational opportunities will be offered without regard to disability?
❏ Yes ❏ No

Is this notice available to persons who are visually or hearing impaired?
❏ Yes ❏ No

Does your school district comply with the following notice requirements?

Notice must be given to applicants for:

Admission and employment, elementary and secondary school students and their parents:
❏ Yes ❏ No

Employees, sources of referrals for applicants:
❏ Yes ❏ No

The notice of the policy of nondiscrimination must appear in bulletins, catalogs, application forms and other materials for both students and employees:
❏ Yes ❏ No

Coordinator:

Has your school district designated an employee(s) to coordinate the recipient’s compliance activities and to investigate complaints alleging noncompliance with the provisions of Section 504/ADA?
❏ Yes ❏ No

Grievance Procedure

Has your school district adopted a grievance procedure for the prompt and equitable resolution of complaints of discrimination by students and employees?
❏ Yes ❏ No

Has your school district adopted a due process hearing procedure for the resolution of complaints?
❏ Yes ❏ No

Self-Evaluation

Has your school district conducted a self-evaluation of your policies and practices in consultation with persons with disabilities or organizations representing persons with disabilities to determine whether they discriminate on the basis of disability?
❏ Yes ❏ No

Continued evaluation should be performed to assure compliance.

B. COUNSELING

Are counseling materials and activities free from discrimination on the basis of disability?
❏ Yes ❏ No

Are student program selections, career and employment selections, and promotion and recruitment efforts free from discrimination on the basis of disability?
❏ Yes ❏ No

Are counseling practices free from inducing students to enroll in programs based on their disability?
❏ Yes ❏ No

Are different testing or other materials for appraising or counseling students used on the basis of a student’s disability?
❏ Yes ❏ No

Are counselors communicating effectively with students who are hearing impaired?
❏ Yes ❏ No

Are promotional materials available to the visually impaired?
❏ Yes ❏ No

C. EQUAL OPPORTUNITY

Are students with disabilities placed in general education environments to the maximum extent appropriate to the needs of the student?
❏ Yes ❏ No

Are proper evaluation and due process procedures followed before a student with a disability is provided special education or related services?
❏ Yes ❏ No

Have all students been given an equal opportunity to participate in nonacademic and extra-curricular activities offered by the school?
❏ Yes ❏ No

D. RECORDS

Are records of decisions regarding a student’s identification, evaluation, educational program and placement available to parents or guardians for examination?
❏ Yes ❏ No

Are copies of educational records available at a reasonable cost to parents or guardians?
❏ Yes ❏ No

Are responses from the school regarding requests for explanations and interpretations of the student’s records made promptly to parents or guardians?
❏ Yes ❏ No

E. EMPLOYMENT

Are all of your school’s employment practices free from discrimination against employees or applicants for employment on the basis of disability?
❏ Yes ❏ No

Are all recruitment sources notified of the school’s policy of nondiscrimination in employment on the basis of disability?
❏ Yes ❏ No

Are all persons treated equally with respect to

Processing applications for employment:
❏ Yes ❏ No

Hiring, upgrading, promotion tenure, demotion, transfer, lay-off, termination, right of returning from lay-off and rehiring:
❏ Yes ❏ No

Rates of pay or any other form of compensation:
❏ Yes ❏ No

Job assignments, job classifications, organizational structures, position description, lines of progression, and seniority lists:
❏ Yes ❏ No

Leave of absence, sick leave, or any other leave
❏ Yes ❏ No

Fringe benefits:
❏ Yes ❏ No

Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leave of absence to pursue training
❏ Yes ❏ No

Employer-sponsored activities:
❏ Yes ❏ No

Do employment tests or other selection criteria disproportionately exclude a particular class of persons on the basis of disability?
❏ Yes ❏ No

Checklist for the 504 Determination of Eligibility & Services

❏   1. Teacher/staff member becomes aware of the student’s problem.
❏   2. Teacher attempts accommodations/interventions.
❏   3. Problem continues.
❏   4. Teacher refers to the student to the SIT (Student Improvement Team).
❏   5. Team creates a plan for accommodations/interventions.
❏   6. Implementation of the SIT plan.
❏   7. SIT reviews the plan.

(If the plan is working, the process ends here)

❏   8. Team troubleshoots or writes a new plan.
❏   9. SIT reviews the 2nd plan.
❏  10. SIT refers student for evaluation.

(Process may begin here if a parent requests an evaluation)

❏  11. Parent notified of proposed evaluation.
❏  12. Evaluation meeting scheduled. Parent notified of rights. Copies of documents from parents that provide information to support the student’s eligibility requested.

❏  13. Student evaluated.
❏  14. Qualification determined.

(If it is determined that the student does not qualify for a 504 Plan the SIT team continues to work to support the student and the process ends here.)

❏  15. Placement determined and parent given notice.
❏  16. Student’s 504 Plan is implemented.

+ Appendix C-Section 504 & IDEA: A Comparison

Print Appendix C Section 504 & IDEA: A Comparison


Section 504 Handbook

Appendix C Section 504 & IDEA: A Comparison

NAME OF LAW
TYPE OF LAW
PURPOSE
FUNDING
ENFORCEMENT
COVERAGE
DEFINITION OF FREE APPROPRIATE PUBLIC EDUCATION
EVALUATION
WHO INITIATES AN INITIAL EVALUATION
NOTICE TO PARENT--EVALUATION
PARENTAL CONSENT--EVALUATION
TIMELINE FOR EVALUATION
EVALUATION REQUIREMENTS
SCREENING IS NOT EVALUATION
EVALUATION REPORT
INDEPENDENT EDUCATIONAL EVALUATION
REEVALUATION
PARENTAL CONSENT REEVALUATION
ELIGIBILITY & PLACEMENT
SPECIAL RULES FOR ELIGIBILITY DETERMINATION
PARENTAL CONSENT SERVICES
THE DOCUMENT
CONTENTS OF THE DOCUMENT
WHO DEVELOPS THE PLAN
EXCUSAL FROM MEETINGS TO DEVELOP THE PLAN
COPY OF THE PLAN TO PARENT
ACCESSIBILITY OF THE PLAN TO TEACHERS AND OTHERS
PLACEMENT
WHO MAKES PLACEMENT DECISIONS
PROGRAM REVIEW
GRIEVANCE PROCEDURE
COMPLAINT PROCEDURES
PROCEDURAL SAFEGUARDS
NOTICE
MEDIATION
DUE PROCESS
EXHAUSTION OF REMEDIES
NONACADEMIC AND EXTRA-CURRICULAR SERVICES AND ACTIVITIES
COUNSELING SERVICES
PHYSICAL EDUCATION AND ATHLETICS

NAME OF LAW

Section 504

Section 504 of the Rehabilitation Act of 1973, 29 USC §794

IDEA

Individuals with Disabilities Education Act, 20 USC §1401, et seq.

TYPE OF LAW

Section 504

A civil rights, anti-discrimination law

IDEA

An education program

PURPOSE

Section 504

To eliminate discrimination against individuals on the basis of disability in programs that receive federal funds

IDEA

To ensure that a free appropriate public education and procedural protections are provided to eligible students with disabilities

FUNDING

Section 504

No funding is provided; failure to comply can result in loss of federal funding for programs

IDEA

Some federal funds are provided to help states and schools cover the excess cost of educating students with disabilities in compliance with IDEA mandates. Appropriations have never reached the authorized level of 40 percent of excess cost.

ENFORCEMENT

Section 504

Enforced by the Office for Civil Rights of the United States Department of Education

IDEA

Administered by the Offices of Special Education Programs within the Office of Special Education and Rehabilitative Services of the United States Department of Education and the Kansas State Department of Education.

COVERAGE

Section 504

Protects an individual with a disability, i.e., one with a physical or mental impairment that substantially limits a major life activity or major bodily function.

Also protects an individual with a record of being disabled or who is regarded as disabled from discrimination based on that record or perception. 34 CFR 104.3

IDEA

Eligible children with disabilities are those evaluated as falling within one of the following categories of disability: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, another health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. For children between the ages of three and nine, a child with a disability can also include a child who is experiencing developmental delays. 34 CFR 300.8

DEFINITION OF FREE APPROPRIATE PUBLIC EDUCATION

Section 504

Schools must provide a free appropriate public education to each qualified handicapped person, regardless of the nature or severity of the person’s handicap.

Appropriate education is defined as the provision of regular or special education and related aids and services that are:

  • Designed to meet individual educational needs of pupils with disabilities as adequately as the needs of nondisabled persons are met and
  • Developed in compliance with the regulations governing evaluation, academic setting and placement. 34 CFR 104.33(b)

A free education is the provision of educational and related services without cost to the student or to his or her parents, except for those fees that are imposed on non-disabled children or their parents. 34 CFR §104.33(c

IDEA

Schools must provide a free appropriate public education to any eligible student with a disability, including students who are suspended or expelled from school.

Free appropriate public education or FAPE means special education and related services that:

  • Are provided at public expense, under public supervision and direction, and without charge;
  • Meet the standards of the Kansas State Department of Education;
  • Include an appropriate preschool, elementary school, or secondary school education in the State involved; and
  • Are provided in conformity with an individualized education program (IEP). 34 CFR § 300.17

EVALUATION

Section 504

Requires evaluation prior to an initial 504 placement in regular or special education and before any subsequent significant change in placement. 34 CFR §104.35

IDEA

Requires a comprehensive, individualized evaluation in all areas of suspected disability prior to initial placement of a child in special education services. 34 CFR §300.301.

WHO INITIATES AN INITIAL EVALUATION

Section 504

Either a parent or school personnel may initiate a request for an initial evaluation to determine if the child is a child with a disability.

IDEA

Either a parent of a child or school personnel may initiate a request for an initial evaluation to determine if the child is a child with a disability

NOTICE TO PARENT--Evaluation

Section 504

The Section 504 procedural safeguards must include notice to parents with respect to actions involving the identification, evaluation, or educational placement of Section 504 students. 34 CFR §104.36

IDEA

Schools must provide notice to the parents of a child with a disability that describes any evaluation procedures the agency proposes to conduct. 34 CFR §300.503

PARENTAL CONSENT-- Evaluation

Section 504

Although there is no statutory or regulatory requirement, OCR interprets the regulations to require parental consent to initial evaluation.

IDEA

Informed parental consent to initial evaluation is required. A school may, but is not required, to seek a due process hearing if parents refuse to consent. § 300.300

TIMELINE FOR EVALUATION

Section 504

No specific timeline in the regulations. Must be completed in a reasonable time.

IDEA

Must be conducted within 60 days of receiving parental consent for the evaluation. CFR §300.301(c).

EVALUATION REQUIREMENTS

Section 504

In interpreting evaluation data a school must:

  • Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.
  • Establish procedures to ensure that information obtained from all such sources is documented and carefully considered.

Evaluation procedures must ensure tests and evaluation materials are:

  • Validated for the specific purpose for which they are used;
  • Administered by trained personnel in conformance with the instructions provided by their producer;
  • Include tests tailored to assess specific areas of educational need, not merely IQ; and
  • Selected and administered to accurately reflect the student’s aptitude or achievement level, not the effect of the impairment. 34 CFR 104.35
IDEA

In conducting the evaluation, the school must:

  • Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child.
  • Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

Each school must ensure assessments and other evaluation materials are:

  • Used for the purposes for which the assessments or measures are valid and reliable;
  • Administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer;
  • Include those tailored to assess specific areas of educational need and not merely IQ;
  • Selected and administered to accurately reflect the student’s aptitude or achievement level, not the effect of the impairment.
  • Are provided and administered in the child’s native language or other mode of communication;
  • Are selected and administered so as not to be discriminatory on a racial or cultural basis.

The child must be assessed in all areas related to the suspected disability. The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs and should not use any single measure or assessment as the sole criterion for determining eligibility or educational needs. 34 CFR 300.306

SCREENING IS NOT EVALUATION

Section 504

No provision.

IDEA

Screening for instructional purposes—i.e., to determine appropriate instructional strategies for curriculum implementation, is not evaluation for eligibility purposes. 34 CFR §300.302

EVALUATION REPORT

Section 504

No provision.

IDEA

A copy of the evaluation report and the documentation of determination of eligibility must be provided to the parent, at no cost to the parent. 34 CFR §300.306(a)(2).

INDEPENDENT EDUCATIONAL EVALUATION

Section 504

No provision.

IDEA

Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the school responsible for the education of the child in question. Upon request for an independent educational evaluation, schools must provide parents with information about where an independent educational evaluation may be obtained, and the criteria applicable for independent educational evaluations. 34 CFR 300.502.

REEVALUATION

Section 504

Requires a school to establish procedures for periodic reevaluation of students who have been provided special education or related services. A reevaluation procedure consistent with the IDEA is one means of meeting this requirement. 34 CFR 104.35(d).

Under Section 504, reevaluation is required prior to a significant change of placement. 34 CFR §104.35(a).

IDEA

Reevaluation under IDEA:

  • Must occur if the school determines that the educational or related services needs of the child warrant a reevaluation;
  • Must occur if a child’s parent or teacher requests a reevaluation.
  • May occur not more than once a year, unless the parent and the public agency agree otherwise;
  • Must occur at least once every 3 years, unless the parent and the public agency agree reevaluation is unnecessary. 34 CFR § 300.303

PARENTAL CONSENT REEVALUATION

Section 504

Although there is no statutory or regulatory requirement, OCR interprets the regulations to require parental consent.

IDEA

School must obtain informed parental consent prior to conducting any reevaluation of a child with a disability. 34 CFR § 300.300

ELIGIBILITY & PLACEMENT

Section 504

In interpreting evaluation data and in making placement decisions, the school must:

  • Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior,
  • Establish procedures to ensure that information obtained from all such sources is documented and carefully considered,
  • Ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and
  • Ensure that the placement decision is made in conformity with 34 CFR § 104.34.
IDEA

Upon completion of the administration of assessments and other evaluation measures:

  • A group of qualified professionals and the parent of the child determines whether the child is a child with a disability, . . . and the educational needs of the child;
  • In interpreting evaluation data for the purpose of determining if a child is a child with a disability and the educational needs of the child, each school district must:
    • Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and
    • Ensure that information obtained from all of these sources is documented and carefully considered.

If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child. 34 CFR §300.306(c).

SPECIAL RULES FOR ELIGIBILITY DETERMINATION

Section 504

No provision.

IDEA

A child must not be determined to be a child with a disability under this part—

(1) If the determinant factor for that determination is—

  • Lack of appropriate instruction in reading, including the essential components of reading instruction;
  • Lack of appropriate instruction in math; or
  • Limited English proficiency.

(2) If the child does not otherwise meet the eligibility criteria. 34 CFR 300.306(b).

PARENTAL CONSENT SERVICES

Section 504

Although there is no statutory or regulatory requirement, OCR interprets the regulations to require parental consent to provision of services.

IDEA

School must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. 34 CFR 300.300.

THE DOCUMENT

Section 504

Section 504 regulations do not require that accommodations, modifications aids or services be documented, but schools are well-advised to ensure the aids, services, accommodations or modifications they provide be fully documented. Section 504 regulations do not prescribe the form of a 504 plan.

IDEA

Services under IDEA must be documented in an individualized education program or IEP which is defined as “a written statement for each child with a disability that is developed, reviewed, and revised in a meeting in accordance with” IDEA procedures and that contains the required components. 34 CFR 300.320(a)

CONTENTS OF THE DOCUMENT

Section 504

Section 504 regulations do not prescribe the contents of a 504 plan.

Section 504 plans may be in any format, and be given any name, so long as they are developed through the procedures required by Section 504 regulations and parents are provided with notice of the parental rights and procedural safeguards.

IDEA

The IEP must contain:

  • A statement of the child’s present levels of academic achievement and functional performance;
  • A statement of measurable annual goals, including academic and functional goals;
  • A description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports progress will be provided;
  • A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child and a statement of the program modifications or supports for school personnel that will be provided to enable the child to advance toward attaining the goals, to make progress in the general education curriculum;
  • An explanation of the extent, if any, to which the child will not participate with peers in the regular class and activities;
  • A statement of any individual appropriate accommodations needed for State and districtwide assessments; and

The projected date for the beginning of the services and modifications, and the anticipated frequency, location, and duration of those services and modifications. 34 CFR 300.320(a)

Additional Provisions:

  • Transition services must be included beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP team. 34 CFR 300.320(b)
  • Not later than one year before the child reaches the age of majority, a statement indicating the child has been informed of the child’s rights under Part B that will transfer to the child on reaching the age of majority. 34 CFR §300.320 (c).

WHO DEVELOPS THE PLAN

Section 504

In interpreting evaluation data and in making eligibility or placement decisions under Section 504, schools must “ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” 34 CFR §104.35(c).

IDEA

The IEP Team for each child with a disability must include:

  • The parents of the child;
  • Not less than one regular education teacher of the child;
  • Not less than one special education teacher or provider of the child;
  • A representative of the school who is qualified to provide or supervise special education and is knowledgeable about the general education curriculum and the availability of resources of the school;
  • An individual who can interpret the instructional implications of evaluation results;
  • At the discretion of the parent or the agency, other individuals who have knowledge or special expertise (as determined by the party inviting the individual) regarding the child, including related services personnel as appropriate; and
  • Whenever appropriate, the child with a disability. 34 CFR 300.321(a)
  • Representatives of transition agencies and the student must be invited to the IEP meeting when the purpose is to discuss transition services. 34 CFR 300.321(b). For students previously served under Part C, a representative of the Part C agency must be included in the initial IEP meeting. 34 CFR §300.321(f).

EXCUSAL FROM MEETINGS TO DEVELOP THE PLAN

Section 504

No provision.

IDEA

If the parent and school agree, in writing, members of the IEP team may be excused from attending some IEP meetings, in whole or in part. Proper procedures for excusal must be followed. 34 CFR §300.321(e).

COPY OF THE PLAN TO PARENT

Section 504

No provision, but it may be prudent to provide a copy of the Section 504 plan to the parent.

IDEA

The school must give the parent a copy of the child’s IEP at no cost to the parent. 34 CFR §300.322(f).

ACCESSIBILITY OF THE PLAN TO TEACHERS AND OTHERS

Section 504

No provision, but OCR has found school districts violated Section 504 by failing to inform or train service providers of the required accommodations, aids, services or modifications under a Section 504 plan. Responsibilities under a Section 504 plan should be clearly communicated to those responsible for implementation.

IDEA

Each school district must ensure:

  • The child’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and
  • Each teacher and provider is informed of his or her specific responsibilities related to implementing the child’s IEP and the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP. 34 CFR 300.323(d).

PLACEMENT

Section 504

A school district shall educate, or shall provide for the education of, each student with a disability in its jurisdiction with nondisabled students to the maximum extent appropriate to the needs of the student with a disability. Schools must place a student with a disability in the regular educational environment unless it is demonstrated by the school that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient places a person in a setting other than the regular educational environment, it must take into account the proximity of the alternate setting to the person's home 34 CFR §104.34.

IDEA

Each public agency must ensure:

  • To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
  • Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR 300.114

WHO MAKES PLACEMENT DECISIONS

Section 504

In making placement decisions under Section 504, schools must “ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” 34 CFR §104.35(c).

IDEA

Consistent with §300.501(c), each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child. 34 CFR § 300.327

PROGRAM REVIEW

Section 504

No annual review requirement.

IDEA

IEPs must be reviewed annually, or more frequently if appropriate. The review should determine whether the annual goals for the child are being achieved. The IEP should be revised to address :

  • Any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate;
  • The results of any reevaluation;
  • Information about the child provided to, or by, the parents;
  • The child’s anticipated needs; or
  • Other matters. 34 CFR § 300.324(b)

GRIEVANCE PROCEDURE

Section 504

A school that employs fifteen or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part. 34 CFR §104.7(b).

IDEA

Not required by IDEA

COMPLAINT PROCEDURES

Section 504

Complaints of discrimination can be filed with the Office for Civil Rights of the U.S. Department of Education.

IDEA

Complaints can be filed with the Kansas State Department of Education. 34 CFR §300.151 – §300.153

PROCEDURAL SAFEGUARDS

Section 504

A school district shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of a disability, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement. 34 CFR §104.36.

IDEA

A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents:

  • Upon initial referral or parent request for evaluation;
  • Upon receipt of the first State complaint or the first due process complaint under in a school year;
  • In accordance with the discipline procedures;
  • Upon request by a parent. 34 CFR §300.504(a)

The procedural safeguards notice must include a full explanation of all of the procedural safeguards relating to:

  • Independent educational evaluations;
  • Prior written notice;
  • Parental consent;
  • Access to education records;
  • Opportunity to present and resolve complaints through the due process complaint and State complaint procedures;
  • The availability of mediation;
  • The child’s placement during the pendency of any due process complaint;
  • Procedures for students who are subject to placement in an interim alternative educational setting;
  • Requirements for unilateral placement by parents of children in private schools at public expense;
  • Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;
  • State-level appeals;
  • Civil actions, including the time period in which to file those actions; and
  • Attorneys’ 34 CFR §300.504(c)

NOTICE

Section 504

A school district shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of a disability, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, 34 CFR §104.36

Parents should be given written notice of the school’s request to evaluate the child, the meeting to determine the child’s eligibility, and of the meeting to determine the child’s placement, including the services, aids, accommodations or modifications that will be provided for the child.

Parents should also be given notice of their rights under Section 504 on an annual basis.

IDEA

Written notice must be given to the parents of a child with a disability a reasonable time before the public agency:

  • Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
  • Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. 34 CFR 300.503(a)

The notice must include:

  • A description of the action proposed or refused by the agency;
  • An explanation of why the agency proposes or refuses to take the action;
  • A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
  • A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
  • Sources for parents to contact to obtain assistance in understanding the provisions of this part;
  • A description of other options that the IEP Team considered and the reasons why those options were rejected; and
  • A description of other factors relevant to the agency’s proposal or refusal. 34 CFR §300.503(b)

The notice must be in a language or mode of communication the parent understands unless it is clearly not feasible to do so. 34 CFR §300.503(c)

MEDIATION

Section 504

Not required by law; can be voluntarily used by the parties.

IDEA

Each school district must ensure that procedures are established and implemented to allow parties to disputes to resolve disputes through a mediation process. The process must be voluntary and cannot delay the right to due process. KSDE maintains a list of qualified mediators, and bears the cost of mediation. If a dispute is resolved through mediation, the agreement must be reduced to writing. Mediation discussions are confidential and cannot be used against a party in litigation. 34 CFR §300.506

DUE PROCESS

Section 504

A school district shall establish and implement,  . . . , a system of procedural safeguards that includes  . . . , an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement. 34 CFR §104.36.

IDEA

A parent or a public agency may file a due process complaint relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child. The due process complaint must allege a violation that occurred not more than two years before the date the filer of the complaint knew or should have known about the alleged action that forms the basis of the due process complaint. Either party must provide a copy of the complaint to the other party. The filer of the complaint must provide a copy of the complaint to KSDE as well. 34 CFR § 300.507(a)

The due process complaint must include—

  • The name of the child;
  • The address of the residence of the child;
  • The name of the school the child is attending;
  • A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and
  • A proposed resolution of the problem to the extent known and available to the party at the time.

Additional information is required if the student is homeless. 34 CFR §300.507(b)

The sufficiency of the complaint may be challenged. The hearing officer determines the validity of the challenge. Amendments to the complaint, prior to the beginning of the hearing, are allowed in some circumstances. 34 CFR §300.507 (d)

The party receiving a due process complaint must, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint. §300.507(f)

EXHAUSTION OF REMEDIES

Section 504

The filing of an OCR complaint or a grievance under the school’s internal grievance procedures is not a prerequisite to bringing a lawsuit in court under Section 504.

Courts have required exhaustion of IDEA remedies for education-related matters, but have not required exhaustion for non-educational matters.

Courts have applied the same exceptions to administrative exhaustion recognized under IDEA for education-related matters under Section 504.

IDEA

Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under IDEA due process and appeal procedures must be exhausted to the same extent as would be required had the action been brought under section 615 of the Act. 34 CFR §300.516(e)

Exhaustion is generally required unless:

  • Use of IDEA’s administrative procedures cannot redress the injury and would be futile;
  • The case involves widespread, systemic violations of IDEA;
  • The hearing officer does not have the authority to award the requested relief;
  • Immediate access to the courts is necessary to avoid serious injury and irreparable harm;
  • The issue is one of law with no factual dispute;
  • Enforcement of a settlement agreement.

NONACADEMIC AND EXTRA-CURRICULAR SERVICES AND ACTIVITIES

Section 504

Schools shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford students with disabilities an equal opportunity for participation in such services and activities.

Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment. 34 CFR 104.37(a).

IDEA

Each school district must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities equal opportunity for participation in those services and activities.

Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available. 34 CFR §300.107

COUNSELING SERVICES

Section 504

Schools that provide personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services without discrimination on the basis of disability. The recipient shall ensure qualified students with disabilities are not counseled toward more restrictive career objectives than are nondisabled students with similar interests and abilities. 34 CFR 104.37(b).

IDEA

Nonacademic and extracurricular services and activities may include counseling services. 34 CFR §300.107

PHYSICAL EDUCATION AND ATHLETICS

Section 504

In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a school district may not discriminate on the basis of disability. A school that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified students with disabilities an equal opportunity for participation. A school district may offer to students with disabilities physical education and athletic activities that are separate or different from those offered to nondisabled students only if separation or differentiation is consistent with the requirements of § 104.34 and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different. 34 CFR 104.37(c).

IDEA

Physical education services, specially designed if necessary, must be made available to every child with a disability receiving FAPE, unless the school district enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless:

  • The child is enrolled full time in a separate facility; or
  • The child needs specially designed physical education, as prescribed in the child’s IEP.

If specially designed physical education is prescribed in a child’s IEP, the school must provide the services directly or make arrangements for those services to be provided through other public or private programs.

If the child is enrolled in a separate facility, the school district must ensure that the child receives appropriate physical education services. 34 CFR §300.108

+ Appendix D-The Law

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Section 504 Handbook

Appendix D The Laws

SUBCHAPTER V - RIGHTS AND ADVOCACY

Sec. 794. Nondiscrimination under Federal grants and programs

(a)   Promulgation of rules and regulations

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

(b) “Program or activity” defined

For the purposes of this section, the term "program or activity” means all of the operations of

        (2)

(A) a college, university, or other postsecondary institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 7801 of title 20), system of vocational education, or other school system;

* * * * *

(d) Standards used in determining violation of section

The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111, et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment.

The following definitions in the Rehabilitation Act of 1973 apply to Section 504 of that Act, which is codified at 29 USC Section 794, contained in Subchapter V of the law:

29 USC Sec. 705. Definitions

For the purposes of this chapter:

(9) Disability

The term “disability” means:

(A) Except as otherwise provided in subparagraph (B), a physical or mental impairment that constitutes or results in a substantial impediment to employment; or

(B) For purposes of sections 701, 711, and 712 of this title, and subchapters II, IV, V, and VII of this chapter, the meaning given it in section 12102 of title 42. [The Americans with Disabilities Amendments Act]

(10) Drug and illegal use of drugs

(A) Drug

The term “drug” means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

(B) Illegal use of drugs

The term “illegal use of drugs” means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

(20) Individual with a disability

(A) In general

Except as otherwise provided in subparagraph (B), the term “individual with a disability” means any individual who—

(i) has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and

(ii) can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to subchapter I, III, or VI of this chapter.

(B)  Certain programs; limitations on major life activities

Subject to subparagraphs (C), (D), (E), and (F), the term “individual with a disability” means, for purposes of sections 701, 711, and 712 of this title, and subchapters II, IV, V, and VII of this chapter, any person who has a disability as defined in section12102 of title 42.

(C)  Rights and advocacy provisions

(i) In general; exclusion of individuals engaging in drug use For purposes of subchapter V of this chapter, the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.

(ii) Exception for individuals no longer engaging in drug use nothing in clause (i) shall be construed to exclude as an individual with a disability an individual who:

(I) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(II) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(III) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in subclause (I) or (II) is no longer engaging in the illegal use of drugs.

(iii) Exclusion for certain services notwithstanding clause (i), for purposes of programs and activities providing health services and services provided under subchapters I, II, and III of this chapter, an individual shall not be excluded from the benefits of such programs or activities on the basis of his or her current illegal use of drugs if he or she is otherwise entitled to such services.

(iv) Disciplinary action for purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34, Code of Federal Regulations (or any corresponding similar regulation or ruling) shall not apply to such disciplinary actions.

(v) Employment; exclusion of alcoholics for purposes of sections 793 and 794 of this title as such sections relate to employment, the term “individual with a disability” does not include any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others.

(D)  Employment; exclusion of individuals with certain diseases or infections

For the purposes of sections 793 and 794 of this title, as such sections relate to employment, such term does not include an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job.

(E) Rights provisions; exclusion of individuals on basis of homosexuality or bisexuality

               For the purposes of sections 791, 793, and 794 of this title:

(i) For purposes of the application of subparagraph (B) to such sections, the term “impairment” does not include homosexuality or bisexuality; and

(ii) Therefore the term “individual with a disability” does not include an individual on the basis of homosexuality or bisexuality.

(F) Rights provisions; exclusion of individuals on basis of certain disorders

For the purposes of sections 791, 793, and 794 of this title, the term “individual with a disability” does not include an individual on the basis of:

(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current illegal use of drugs.

(G) Individuals with disabilities

The term “individuals with disabilities” means more than one individual with a disability.

+ Appendix E-Regulations

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Section 504 Handbook

Appendix E Regulations 

From: www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html

Title 34 Education
Subtitle B Regulations of The Offices of The Department Of Education
Chapter I -- Office for Civil Rights, Department of Education
Part 104 -- Nondiscrimination on The Basis of Handicap In Programs or Activities Receiving Federal Financial Assistance

Subpart A General Provisions

Sec.
104.1 Purpose.
104.2 Application.
104.3 Definitions.
104.4 Discrimination prohibited.
104.5 Assurances required.
104.6 Remedial action, voluntary action, and self‑evaluation.
104.7 Designation of responsible employee and adoption of grievance procedures.
104.8 Notice.
104.9 Administrative requirements for small recipients.
104.10 Effect of state or local law or other requirements and effect of employment opportunities.

Subpart B Employment Practices

104.11 Discrimination prohibited.
104.12 Reasonable accommodation.
104.13 Employment criteria.
104.14 Preemployment inquiries.

Subpart C Accessibility

104.21 Discrimination prohibited.
104.22 Existing facilities.
104.23 New construction.

Subpart D Preschool, Elementary, and Secondary Education

104.31 Application of this subpart.
104.32 Location and notification.
104.33 Free appropriate public education.
104.34 Educational setting.
104.35 Evaluation and placement.
104.36 Procedural safeguards.
104.37 Nonacademic services.
104.38 Preschool and adult education.
104.39 Private education.

Subpart E Postsecondary Education

104.41 Application of this subpart.
104.42 Admissions and recruitment.
104.43 Treatment of students; general.
104.44 Academic adjustments.
104.45 Housing.
104.46 Financial and employment assistance to students.
104.47 Nonacademic services.

+ Appendix F&G USDOE Office for Civil Rights FAQ

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Section 504 Handbook

Appendixs F & G

Frequently Asked Questions About Section 504 and the Education of Children with Disabilities
ed.gov/about/offices/list/ocr/504faq.html

Introduction
Interrelationship of IDEA and Section 504
Protected Students
Evaluation
Placement
Procedural Safeguards
Terminology

Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools
ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html

+ Appendices H-R

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Section 504 Handbook

Appendices H-R
Guidance from U.S. Department of Education

Appendix H:

Guidance on Free Appropriate Public Education for Students with Disabilities: Requirements Under Section 504 of the Rehabilitation Act of 1973

Appendix I

Guidance on Hidden Disabilities

Appendix J

Guidance on Access by Students with Disabilities to Accelerated Programs (December 26, 2007)

"Dear Colleague" letter from Assistant Secretary for Civil Rights Stephanie Monroe addressing the rights of students with disabilities to participate in schools’ and school districts’ accelerated programs, such as Advanced Placement and International Baccalaureate classes or programs.

Appendix K

Guidance on Helping Students with Diabetes (April 14, 2005)

Joint "Dear Colleague" letter to Chief State School Officers concerning the document "Helping the Student with Diabetes Succeed: A Guide for School Personnel," co-authored by the Office for Civil Rights and published in 2003 under the auspices of the National Institutes for Health and the Centers for Disease Control.

Appendix L

Guidance on Students with Disabilities and Transitioning to Postsecondary Education

“Dear Colleague” letter and “Dear Parent” letter from Assistant Secretary for Civil Rights Stephanie Monroe, providing information about the legal rights and responsibilities of students with disabilities as they transition from high school to institutions of postsecondary education.

  • "Dear Colleague" letter HTML OR PDF
  • "Dear Parent" letter HTML OR PDF

Appendix M

Placement of School Children with Acquired Immune Deficiency Syndrome (AIDS) (July 1991)

Describes the requirements of Section 504 of the Rehabilitation Act of 1973, as amended, with respect to elementary and secondary school policies involving the placement of children with Acquired Immune Deficiency Syndrome or AIDS.

Appendix N

Guidance on Disclosure of Report Cards and Transcripts for Students with Disabilities (October 17, 2008)

"Dear Colleague" letter from Assistant Secretary for Civil Rights Stephanie Monroe providing recipients with information regarding disclosure of disability on report cards and transcripts for students with disabilities attending public elementary and secondary schools. The purpose of this guidance is to clarify how federal laws apply to statements on report cards and transcripts when these statements identify students as students with disabilities.

  • "Dear Colleague" letter HTML OR PDF

Appendix O

Guidance on Schools' Obligation to Provide Equal Opportunity to Students with Disabilities to Participate in Extracurricular Athletics (January 25, 2013)

"Dear Colleague" letter from Acting Assistant Secretary for Civil Rights Seth Galanter, addressing equal access to extracurricular athletics for students with disabilities. The "Dear Colleague" letter provides an overview of the obligations of public elementary and secondary schools under Section 504 of the Rehabilitation Act (Section 504), and the Department’s Section 504 regulations; cautions against making decisions based on presumptions and stereotypes; details the specific Section 504 regulations that require students with disabilities to have an equal opportunity for participation in nonacademic and extracurricular services and activities; and discusses the provision of separate or different athletic opportunities.

  • Press Release HTML
  • "Dear Colleague" letter HTML OR PDF
  • 'Fast Facts' about "Dear Colleague" letter HTML OR PDF
  • Fast Facts about “Dear Collegue” Letter En español (Spanish) HTML OR PDF

Appendix P

Guidance on Schools’ Obligations to Protect Students from Student-on-Student Harassment on the Basis of Sex; Race, Color and National Origin; and Disability (October 26, 2010)

“Dear Colleague” letter from Assistant Secretary for Civil Rights, Russlynn Ali, concerning recipients' obligations to protect students from student-on-student harassment on the basis of sex; race, color and national origin; and disability. The letter clarifies the relationship between bullying and discriminatory harassment, provides examples of harassment, and illustrates how a school should respond in each case.

Appendix Q

Guidance on Retaliation

“Dear Colleague” letter from Acting Assistant Secretary for Civil Rights Seth Galanter, concerning the prohibition against retaliation under Federal civil rights laws. The letter clarifies the basic principles of retaliation law and describes OCR’s methods of enforcement.

  • “Dear Colleague” letter HTML OR PDF
  • Carta a los Estimados Colegas HTML OR PDF
  • Eliminating Retaliation for Exercising Civil Rights (Race and National Discrimination) PDF
  • Eliminating Retaliation for Exercising Civil Rights (Sex Discrimination) PDF
  • Eliminating Retaliation for Exercising Civil Rights (Disability Discrimination) PDF

Appendix R

Guidance on Bullying of Students with Disabilities

"Dear Colleague" letter from Assistant Secretary for Civil Rights Catherine E. Lhamon, concerning the obligation of elementary and secondary schools to respond to the bullying of students with disabilities, including those students who are not eligible for services under the Individuals with Disabilities Education Act but are entitled to services under Section 504 of the Rehabilitation Act. The guidance discusses the actions schools must take when bullying interferes with the education of a student with a disability who is bullied on any basis, and provides insight into how OCR analyzes complaints involving bullying of students with disabilities.

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Section 504 Handbook

Chapter 5 Preschool, Elementary & Secondary Programs
Evaluation & Eligibility

Evaluation
Section 504 Evaluation Triggers
Parental Notice & Consent
Conducting the Evaluation
Information to Consider
Formal Testing
Medical Diagnosis
Evaluation Timeline
Independent Evaluation
Reevaluation
Evaluation Considerations
Eligibility for Section 504 Services
Physical or Mental Impairment
Major Life Activities
Substantial Limitation
Mitigating Measures
Episodic Impairments or Those in Remission
Individualized Health Plans
Temporary Impairments
Excluded from Protection
Determining Eligibility
Technically Eligible Students
Ending Section 504 Services

Evaluation

Section 504 requires preschools, elementary and secondary schools to evaluate individuals who may need accommodations or services before services are provided. If a teacher, administrator or other individual suspects that a student has a disability, that individual may refer the student for evaluation. A parent may also request that a student be evaluated.  School districts should develop policies and procedures regarding referral for evaluation to meet their Section 504 obligations.

Many times when a student is not progressing as expected, the student is first referred to a Student Intervention Team for general education interventions. However, if that team suspects the concern is disability related, or determines general education interventions are not working as anticipated, a referral for a Section 504 or Special Education evaluation should be made. Because the eligibility standards under Section 504 are broader than the eligibility standards under the IDEA, a student may be eligible for accommodations through a 504 plan despite his ineligibility for an IEP. North Kingstown (RI) Sch. Dist., 64 IDELR 54 (OCR 2013). While courts have generally held that an offer of services under IDEA serves to meet Section 504 FAPE requirements, recent cases call into question whether this remains true.  See Lamkin v. Lone Jack C-6 Sch. Dist., 2012 WL 8969061, 58 IDELR 197 (W.D. Mo. 2012) (a student with multiple disabilities lost her right to Section 504 accommodations once her parents revoked consent for IDEA services).  But see D.F. v. Leon County Sch. Bd., 2014 WL 28798, 62 IDELR 167 (N.D. Fla. 2014) (parent's rejection of IDEA services did not waive the student's right to any services that might be available under the other statutes, including assistive technology under Section 504 and Title II).

Under Section 504 or IDEA regulations, districts must conduct an initial evaluation when a student, because of his disability, “needs or is believed to need special education or related services.” If a school thinks a student has a physical or mental impairment that is substantially limiting a major life activity and believes the student needs supplementary or related services, accommodations or modifications in the regular education environment beyond services provided for any student, a 504 referral should be made. The school has an obligation to refer and evaluate a student under Section 504 whether or not it is requested by a parent. West Contra Costa (CA) Unified School District, 42 IDELR 121 (OCR 2004). Any policy or practice that limits Section 504 evaluations solely to instances where parents expressly request them is unlawful. Oxnard (CA) Elem. Sch. Dist., 56 IDELR 274 (OCR 2011).

When the need for special education is suspected, the evaluation should, in all respects, comply with IDEA requirements. Compliance with IDEA evaluation requirements suffices to meet Section 504 requirements, and the school need not conduct separate evaluations under IDEA and Section 504.

When a parent requests a Section 504 evaluation, school personnel should either conduct an evaluation, if they believe the child does have a disability that may qualify him for Section 504 services or notify parents of the school’s refusal to evaluate and of their parental rights under Section 504, including the right to request a due process hearing. See Pine Forest (AZ) Charter Sch., 116 LRP 19095 (OCR 2016).

Section 504 coverage is broader than the subset of students who qualify for special education and related services under IDEA. Not all Section 504 students fall under one of the IDEA categories of disability or need specially designed instruction or related services. Section 504 applies to students who, because of a disability, may need modifications to policies and practices or accommodations in order to be on equal footing with other students in the regular education environment.

While there is no specific formula for determining when a Section 504 referral is implicated, the evaluation triggers below provide examples of times when Section 504 evaluation might be considered. Recent OCR opinions also suggest that 504 coverage should be considered if a student has an active individualized health plan. If there is a likelihood the student has a disability recognized under IDEA and will need special education, IDEA procedures should be followed.

Evaluation Triggers

  • When a parent frequently expresses a concern about the student’s performance.
  • When suspension or expulsion is being considered for any student.
  • When retention is being considered.
  • When a student shows a pattern of not benefiting from teacher instruction.
  • When a student has a serious illness or injury.
  • When a student is referred to the Student Intervention Team.
  • When a student is evaluated under IDEA and does not qualify for special education.
  • When a student is released from IDEA services.
  • When a student exhibits a chronic health condition.
  • When a student has been identified as having attention deficit disorder (ADD) or deficit hyperactivity disorder (ADHD) and educational performance is affected.
  • When a student is identified as “at-risk” or exhibits potential to drop out of school.
  • When substance abuse is an issue, if the individual has stopped using and is either in rehabilitation or has gone through the rehabilitation process.
  • When a disability of any kind is known or suspected.
  • Adapted from “Section 504 ADA Guidelines for Educators,” KSDE (200

Cases on Point

Evaluation Triggers
  • M. by Miller v. South Callaway R-II Sch. Dist., 732 F.3d 882 (8th Cir. 2013). Under some circumstances, knowledge of a disability coupled with delaying accommodations can show bad faith or gross misjudgment. The court found the delay in this case needed to be considered in the context of the district’s numerous and continuous attempts to assist the child and fell short of meeting the bad faith or gross misjudgment level.
  • Arapahoe (NC) Charter Sch., 116 LRP 35859 (OCR 2016). A student's ongoing behavioral challenges and indications that the student might have a disability triggered the school's obligation to evaluate.
  • Oran (MO) R-III Sch. Dist., 114 LRP 41265 (OCR 2014) OCR resolved a potential compliance concern by requiring the district to evaluate each student who had an Individual Health Plan (IHP) for Section 504 eligibility.
  • Sparta Area (WI) Sch. , 64 IDELR 116 (OCR 2013). A teenage student’s frequent absences from school and her disclosure to a guidance counselor that she did not like to leave her mother or home should have prompted a Wisconsin district to evaluate her for Section 504 eligibility. The district advised the parent to seek outside help from medical and behavioral professionals and to have the student visit the counselor "whenever she felt overwhelmed at school," rather than evaluating her for services under Section 504
  • Acalanes (CA) Union High Sch. Dist., 64 IDELR 86 (OCR 2013). Although the district had medical documentation of the student’s head trauma, migraines, and excessive absences during her freshman year, it failed to evaluate her or convene a meeting to discuss possible accommodations until the end of her sophomore year, and only when prompted by her physician.
  • Downey (CA) Unified Sch. Dist., 54 IDELR 176 (OCR 2009). Evidence supported a parent’s allegation that the district denied a free appropriate education to an eighth-grader with asthma by failing to identify and assess him for Section 504 services in a timely fashion. OCR concluded the student’s attendance record, failing grades, and evidence of a possible disability that appeared to impact his education was enough to trigger the district’s duty to evaluate him for 504 eligibility.
  • Bristol-Warren (RI) Reg'l Sch. Dist., 56 IDELR 303 (OCR 2010). A district that offered an RTI plan to a second-grader with ADHD and anxiety disorder instead of referring her for an evaluation violated Section 504. OCR determined the district should have determined whether she qualified for a 504 plan because the RTI plan did not address the student’s communication and social interaction needs.

Parental Notice & Consent

Once it is determined evaluation is needed, a school administrator, or other person designated to coordinate Section 504 compliance, should determine how and when the evaluation will be completed. Written notice of the desire to evaluate the student should be provided to the parent, and, according to OCR rulings, parental consent to the evaluation should be secured prior to the commencement of the evaluation. Consent should be obtained even if the district believes the evaluation will consist solely of reviewing information that is currently available.

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.

If parents refuse to consent, the school may seek resolution through the school’s Section 504 due process procedures. However, the school is not required to request due process. A parent who refuses to consent to proposed evaluation cannot later assert the student’s rights under IDEA or Section 504 were violated.

Conducting the Evaluation

A Section 504 evaluation should be conducted by a group of persons who are knowledgeable about the student and the student’s disability. This group should also understand the meaning of evaluation data and placement options. Unlike and IEP team under IDEA, the number of persons in the “group of knowledgeable persons” and their titles or qualifications are not defined in law. The composition of the team for each student will vary, depending on the nature of the disability and the needs of the student. All areas of suspected disability should be considered.  See Prince William County (VA) Pub. Schs., 64 IDELR 153 (OCR 2014) (school district violated Section 504 when it failed to consider a child's severe allergies during her evaluation).

The Section 504 evaluation team typically includes some of the following individuals:

  • Teachers
  • Counselors
  • School nurse
  • Principal or assistant administrator
  • School psychologist
  • Social workers
  • Other related service providers or specialists
  • Members of the Student Intervention Team, if the student has been involved in the SIT process

While not mandated, parental participation in the process is recommended. Parents can provide valuable information about their child’s health needs, behavioral challenges, and services, accommodations or interventions that have been tried at school or at home in the past. To the extent possible, the meeting to discuss evaluation and eligibility should be scheduled at a time when the parent can attend.

Information to Consider

Unlike IDEA, evaluation under Section 504 does not always mean testing. It does mean gathering information from a variety of sources, but formal testing is not required under Section 504. The evaluation should be tailored to the needs of the student and designed to help the evaluation team understand how the disability limits the student’s abilities to participate in school programs and activities. Typically, Section 504 teams consider information like:

  • Report cards, including the student’s grades;
  • Attendance records;
  • Teacher observations, reports or recommendations;
  • Information provided by the parent;
  • The student’s social or cultural background;
  • The student’s home language survey or other language testing;
  • Information concerning general education interventions that have been tried and the results obtained;
  • Standardized testing scores, including aptitude and achievement tests, state assessments and/or local assessments;
  • Information provided on referral forms;
  • Disciplinary records;
  • Health information, including the student’s current physical condition and any existing individualized health plan or emergency action plan;
  • Prior Section 504 or Special Education evaluations or services; and/or
  • Private evaluation reports, including information provided by physicians.

Formal Testing

While formal testing is not required as part of a Section 504 evaluation, if formal testing is administered as part of the process, any tests or other evaluation materials used to determine eligibility must be:

  • Validated for the specific purpose for which they are used;
  • Administered by trained personnel in conformity with the instructions provided by the test producer; and
  • Tailored to assess specific areas of educational need.
  • Tests must also be selected and administered to ensure the results accurately reflect whatever the test is designed to measure, not the effect of the disability.

Whatever evaluation tools used or data considered, the focus of the evaluation should be on identifying the nature of the student’s disability, the limitations it places on the student’s ability to function in various school settings, and the services necessary to meet the student’s needs. The amount of data or information required to make these decisions is determined by the group of individuals charged with evaluation.  Detroit (MI) Public Schools, 110 LRP 66005 (OCR 2010). This group also determines the weight that will be given to any of the data it considers.

Medical Diagnosis

Section 504 does not require a medical diagnosis of a condition. Bethlehem (NY) Central Sch. Dist., 52 IDELR 169 (OCR 2009). In Prince William County (VA) Pub. Schs., 63 IDELR 139 (OCR 2013), the school denied eligibility because the student did not have a medical diagnosis of ADHD. OCR explained the determination of whether a student has a disability is not based solely on a medical diagnosis, but instead on an assessment of whether the student is substantially limited in a major life activity, which the team never considered.

In determining Section 504 eligibility, a medical diagnosis is required only if a 504 team believes it is necessary. If the team can determine the student has an impairment from other sources, no medical diagnosis is required. Further, if the school believes a medical diagnosis is warranted, the school must pay for the evaluation. It cannot condition evaluation and eligibility on the parent securing or providing existing medical data to the school at the parent’s expense. Letter to Veir, 20 IDELR 864 (OCR 1993). See also Alabaster City (AL) Sch. Dist., 114 LRP 45081 (OCR 2014)(school violated Section 504 when it required all students to submit a physician's note before finding them eligible for homebound placement); Dysart (AZ) Unified Sch. Dist., 114 LRP 51789 (OCR 2014) (district was obligated to reimburse parents for the costs of the medical assessments where it required they obtain them).

Additionally, a medical diagnosis, standing alone, is not a sufficient evaluation. Eligibility under Section 504 can never be based on a single piece of evaluation data, including a note or letter from a physician diagnosing a condition or advocating for a Section 504 plan for the student. The regulations require the school to “draw upon information from a variety of sources,” document and carefully consider the information from all sources. While a medical diagnosis does not qualify a student for Section 504 protections, it should result in further inquiry, and may trigger a Section 504 referral for evaluation. By looking at information from a variety of sources, the possibility of error in classification is minimized.

(For additional information, see Appendix F, Questions 23-24.)

Evaluation Timeline

Section 504 does not establish a timeframe for completion of an initial evaluation. OCR had indicated that evaluation must be completed within a reasonable time. OCR has looked to state guidelines in evaluating reasonableness. See Pickens County (GA) Sch. Dist., 114 LRP 15875 (OCR 2013); Beach Park (IL) Cmty. Consol. Sch. Dist. #3, 62 IDELR 155 (OCR 2013); Walled Lake (MI) Consol. Schs., 52 IDELR 81 (OCR 2008).

The school must have notice of a suspected disability before the timeline begins to run. See Sarasota County (FL) Schs., 55 IDELR 296 (OCR 2010)(where there was no indication parents raised the issue of suspected disabilities, disclosed the student had ADHD, or requested an evaluation during prior discussions with school officials, OCR concluded that the school district provided a timely evaluation when the principal initiated the student intervention team process within days of receiving the parents’ request for an evaluation) and Westport (CT) Pub. Schs., 54 IDELR 329 (OCR 2009)(parent failed to establish the information available to the district about the student’s conditions was sufficient to prompt a Section 504 evaluation where nothing suggested the student’s absences or visits to the school nurse’s office were related to his asthma or mold allergy).

If the district spends time ruling out eligibility under IDEA, the Section 504 timeline should be shorter than in cases where only Section 504 services are being considered. Delay in evaluation has resulted in a finding the district violated Section 504, as suggested in the cases outlined below.

After receiving information from a variety of sources, the IEP team must review the evaluation data and determine whether the student is eligible for services or accommodations under Section 504. The eligibility decision is discussed more fully in the next part of this chapter. When the 504 team cannot agree on eligibility, the parent can request a due process hearing to resolve the issue.

Cases on Point

Timeliness of Evaluation
  • Berkley (MI) Sch. Dist., 114 LRP 45140 (OCR 2014). Failure to refer the student for an evaluation for three months after the doctor diagnosed the student with ADHD constituted an unreasonable delay in evaluation.
  • Chesterfield County (SC) Pub. Schs., 54 IDELR 299 (OCR 2009). Because the district received an independent psychological assessment from the parent strongly indicating the student might have a disability, it was required to promptly determine whether the student needed to be evaluated and could not wait eight months to consider whether a student with social, communication and behavioral issues should be evaluated for a 504 plan.
  • Penn Yan (NY) Cent. Sch. Dist., 60 IDELR 170 (OCR 2012). Failure to evaluate a student with epilepsy for six months after it had reason to believe the student needed special education or related aids and services due to a disability violated Section 504.
  • Indian River County (FL) Sch. Dist., 58 IDELR 52 (OCR 2011). A delay of four months before beginning an evaluation was unreasonable. A district’s receipt of supporting medical documentation or use of the response to interventions process should not obstruct the timeliness of Section 504 eligibility evaluations.
  • Oxnard (CA) Elem. Sch. Dist., 56 IDELR 274 (OCR 2011). The school district discriminated against a first-grader with ADHD and a mood disorder not only by delaying his IDEA evaluation, but also by failing to evaluate his eligibility for Section 504 services.

Independent Evaluation

Section 504 regulations do not include the parental right to an independent evaluation at public expense found in IDEA. Because there is no funding attached to Section 504, however, school districts are often grateful when parents willingly provide medical or other types of evaluations they have already obtained to inform the 504 team’s decisions. Any information provided by the parent should be considered, but the weight given to the information is a team decision.

Even if private evaluations identifying a student as having a disability are available, Section 504 regulations permit a district the opportunity to conduct its own evaluations before providing the child with services. Cobb County (GA) Sch. Dist., 59 IDELR 266 (OCR 2012).

(For additional information, see Appendix F, Question 25.)

Reevaluation

Section 504 regulations require that reevaluations be conducted “periodically,” but sets no particular timetable for reevaluation. OCR has indicated meeting IDEA reevaluation requirements—reevaluation at three-year intervals, or more frequently if conditions warrant—satisfies, but is not mandated by, Section 504. Reevaluation should also be considered if it is requested by a parent or teacher, or if the need for additional evaluation is apparent when reviewing current data about the student at the annual review of the Section 504 plan.

Again, while not mandated, reevaluation, or a thorough review of current data to determine reevaluation is unnecessary, is advisable when a student is transitioning from elementary to middle or junior high and then again to high school. Not only will it help familiarize new staff with the student’s limitations and needs, it will also allow the team to consider obstacles or challenges which may present themselves at the new level.

Section 504, unlike IDEA, requires reevaluation prior to a significant change in placement. Because suspension of 10 days or more constitutes a “change in placement,” a reevaluation that meets Section 504 criteria is required prior to expelling a student or suspending a student for 10 days or more. A reevaluation should also be conducted prior to graduation from high school.

(For additional information, see Appendix F, Questions 28-29. And the Section 504 regulation on Evaluation and Placement, 34 CFR 104.35, is in Appendix E.)

Cases on Point

Reevaluation
  • Fulton County (GA) Sch. Dist.,115 LRP 55129 (OCR 2015) A district's failure to reevaluate a student after he sustained severe neck and back injuries in an automobile accident raised Section 504 and Title II compliance concerns.
  • West Gilbert (AZ) Charter Elem. Sch., Inc., 115 LRP 52095(OCR 2015) A charter school could not properly address a student's allergies until it reevaluated him following the arrival of a service dog to school.
  • Huntington Beach City (CA) Sch. Dist., 115 LRP 17622(OCR 2015) The district should have reevaluated the student to determine whether the bullying he experienced affected his ability to learn.
  • Battle Creek (MI) Pub. Schs., 114 LRP 36329 (OCR 2014). An expulsion or out-of-school suspension of more than 10 consecutive school days in the same school year constitutes a significant change in placement, which triggers the duty to reevaluate the student, including determining whether the conduct was a manifestation of a disability.
  • Wilson County (NC) Schs., 114 LRP 45134 (OCR 2014). A student's transfer to a new school or program may trigger the need for a reevaluation.
  • Dysart (AZ) Unified Sch. Dist., 114 LRP 51789 (OCR 2014) A district should have reevaluated a student with mental health issues before discontinuing her 504 plan.
  • Denair (CA) Unified Sch. Dist., 53 IDELR 98 (OCR 2009) (concluding that a district should have reevaluated the student because his disruptive behaviors gradually increased in frequency and severity over an extended period)
  • Capistrano Connections Acad. Charter Sch. (CA), 114 LRP 53379 (OCR 2014) (finding that a district had a duty to reevaluate a student whose academic performance suffered due to recent health problems related to her disability); and
  • Charlotte-Mecklenburg (NC) Schs., 114 LRP 36318 (OCR 2014) (determining that a district violated Section 504 when it terminated the homebound services of two students without reevaluating their needs).
  • Anacortes (WA) Sch. Dist. No. 103, 53 IDELR 241(OCR 2009) A district violated Section 504 where it did not conduct a reevaluation to consider the student's extensive absences, the new information it had received from the student's medical providers, or the parent's request for additional services for the student.
  • De Soto (KS) Unified Sch. Dist. No. 232, 52 IDELR 20 (OCR 2008) A Kansas district likely failed to comply with Section 504 when it exited students with disabilities from a reading program without first reevaluating them.

Evaluation Considerations

If the school suspects that a student has a disability or if a parent requests an evaluation, parents are provided notice of the desire to evaluate the child. Once parental consent is received an individual evaluation is conducted. The following are some considerations for meeting 504 evaluation requirements.

  • The school administrator should make determination of who will conduct the evaluation. The evaluation team must be knowledgeable about the student, disability, and be familiar with the evaluation data and placement options.
  • Each evaluation should be tailored to the specific needs of the student.
  • The parents need to be notified before the evaluation is conducted. Consent to evaluation is required.
  • Tests and other evaluation materials should be validated for the specific purpose for which they are used and administered by trained personnel in conformance with the instructions provided by their producer.
  • Tests and other evaluation materials include those tailored to assess specific areas of educational need.
  • Tests should be selected to ensure that when a test is administered to a student with impaired sensory, manual, or speaking skills, the results accurately reflect whatever the test is designed to measure.
  • In interpreting evaluation data and in making placement or accommodation decisions, a school should draw upon information from a variety of sources, including aptitude and achievement tests, interest inventories, teacher recommendations, and other factors such as the child’s physical condition, social or cultural background, and adaptive behaviors.
  • A reevaluation should be conducted before making a significant change in placement.
  • The school may refuse to conduct an evaluation but has the obligation to inform the parents of the reason(s) for the refusal. The parent should also be informed of their procedural safeguards, including the right to request a due process hearing.
  • An evaluation or reevaluation under the provisions of the Individuals with Disabilities Education Act meets Section 504 requirements. However, the determination a student does not need special education or related services under IDEA does not end the inquiry under Section 504.

Eligibility for Section 504 Services

Students who meet the definition of a person with a disability are those who:

  • Have a physical or mental impairment which substantially limits one or more major life activities;
  • Have a record of such an impairment; or
  • Are regarded as having such impairment.

To be eligible for Section 504 services, a student must be evaluated and determined to have a physical or mental impairment that substantially limits one or more major life activities. Not all impairments result in a substantial limitation, as illustrated below.

Students with a record of impairment or who are regarded as having an impairment are protected from discrimination on that basis, but do not need special accommodations or services because they do not have an impairment that is causing any substantial limitation on major life activities.

Physical or Mental Impairment

Physical or mental impairment is defined in the Section 504 regulations 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, genitourinary, hemic and lymphatic, skin or endocrine; or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

Major Life Activities

To qualify for services or accommodations under Section 504, the physical or mental impairment must substantially limit one or more major life activities. Major life activities were originally defined as those functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.” When Congress passed the Americans with Disabilities Amendments Act of 2008, it significantly broadened the definitions under the ADA.

Added by ADAAA
  • Eating
  • Sleeping
  • Standing
  • Lifting
  • Bending
  • Learning
  • Reading
  • Concentrating
  • Thinking
  • Communicating
  • The operation of a major bodily function, including functions of the following organs or systems:
  • Immune system
  • Normal cell growth
  • Digestive
  • Bowel
  • Bladder
  • Neurological
  • Brain
  • Respiratory
  • Circulatory
  • Endocrine
  • Reproductive
Added in ADAAA Employment Regulations
  • Sitting
  • Reaching
  • Interacting with others
  • The operation of a major bodily function, including functions of the following organs or systems:
  • Special sense organs and skin
  • Genitourinary
  • Cardiovascular
  • Hemic
  • Lymphatic
  • Musculoskeletal
  • The operation of a major bodily system includes the operation of an individual organ within a body system.

(For additional information see Appendix G, Question 6.)

The ADAAA not only amended the ADA, but also included a conforming amendment to the Rehabilitation Act of 1973 that applies the new definitions under the ADA to Section 504 as well. While the ADAAA did not alter a school district’s obligations to provide a free appropriate public education or the required procedures, it did significantly broaden the number of students that may qualify for Section 504 protection.

Cases on Point

Major Life Activities
  • P. v. Compton Unified Sch. Dist., 135 F. supp.3d 1098 (C.D. Cal. 2015). The court rejected the notion that exposure to traumatizing events is a disability in its own right but noted that the physical or mental effects of such trauma could amount to a substantial limitation on a major life activity for purposes of Section 504 eligibility.
  • Hamilton County (FL) Sch. Dist., 59 IDELR 111 (OCR 2012). A school district erred in considering only two major life activities—learning and controlling behavior—in considering whether a student’s ADHD substantially limited a major life activity. Further it did not consider whether the student’s other confirmed impairments, autism and separation anxiety substantially limited other major life activities.
  • Oxnard (CA) Union High Sch. Dist., 55 IDELR 21 (OCR 2009). A California district created Section 504 compliance concerns when it improperly concluded that a high school student with a gastrointestinal disorder was not a student with a disability under Section 504. The student was absent due to illness for 28 days in ninth grade and 35 days in 10th grade. The student’s physician wrote a letter to school officials stating that due to recurrent vomiting, nausea and abdominal pain, the student was likely to have tardiness and a high number of absences. Despite this documentation, the district determined that the student was ineligible under Section 504 because the student received good grades his condition did not substantially limit his ability to learn, but offered the student bathroom privileges, excused his tardiness, and offered a reasonable make-up period for missed assignments. OCR noted an individual has a disability under Section 504 if he has a physical impairment that substantially limits one or more major bodily functions such as digestive and bowel functions. Because the district failed to consider the impact the student’s symptoms had on these bodily functions, the eligibility standard it applied to the student did not comply with Section 504.
  • Palo Verde (CA) Unified Sch. Dist., 56 IDELR 177 (OCR 2010). OCR found the school district erred in limiting its review to whether the student’s impairments substantially limited his ability to learn. In light of the student’s distracted behavior, inability to concentrate, and susceptibility to seizures, the district should have considered the effect of his impairments on other life activities.
  • Miller County (GA) Sch. Dist., 56 IDELR 53 (OCR 2010). The fact that a student with Tourette syndrome and obsessive compulsive disorder was achieving good grades in honors classes did not mean that he was ineligible for a Section 504 plan. After the student was repeatedly sent to the office for his behavior and missed instructional time, the school should have considered the student's ability to interact with others, control his behavior, attend school, and participate in the educational program in addition to learning.
  • Lakeview (MI) Pub. Schs., 64 IDELR 52 (OCR 2013). A student’s teachers reported that he was frequently inattentive, required increased directions and specific instructions to start a task, took more than an average amount of time to follow directions, and processed information slowly. The district was aware the student had pervasive developmental disorder, ADD, autism, and other medical conditions.  The district should have considered evaluating the student under Section 504, even though his IDEA evaluation concluded he did not require special education or related services to meet his needs.
  • Torrance (CA) Unified Sch. Dist., 59 IDELR 16 (OCR 2012). The district determined the student with ADHD was not eligible for Section 504 services because his good grades and standardized test scores indicated his ADHD did not impact his ability to learn. OCR suggested the district should have considered whether the student’s disability impacted other major life activities like thinking, concentrating, neurological functioning, brain function, and executive functioning.  OCR noted a student’s substantial efforts and use of outside resources can result in academic achievement that masks deficits in major life activities, which would otherwise qualify the student for Section 504 benefits.

In addition to expanding the definition of major life activities, the major changes contained in the ADAAA are explained in the Office for Civil Rights Q&A found in Appendix G. Each of the changes referenced are discussed in more detail below.

Substantial Limitation

The 504 regulations do not contain a definition of “substantially limits” and OCR has specifically declined to define the term, concluding it should be defined by local school districts. Letter to McKethan, 23 IDELR 504 (OCR 1994). The legislative history of the Americans with Disabilities Act of 1990 suggests a major life activity is substantially limited when “the individual’s important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people,” but the term was not defined in the law or regulations.

The ADAAA amendments failed to provide a definition but did provide guidance on how the definition of disability should be interpreted. These amendments specify:

  • An impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting.
  • The term “substantially limits” must be interpreted without regard to the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses.

An impairment that is episodic in nature or in remission is a disability if it would substantially limit a major life activity when in its active phase.

  • The EEOC regulations governing employment provide additional guidance:
  • The primary focus should be on whether discrimination occurred, not coverage.
  • The decision as to whether one qualifies as an individual with a disability should not require extensive analysis. It usually will not require scientific, medical or statistical analysis.
  • The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard. It is a lower standard than the standard applied by regulations and court decisions prior to the ADAAA.
  • An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. The inquiry is an individualized assessment.
  • An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
  • Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”
  • Limitation on one major life activity is sufficient.

Some impairments will almost always meet the criteria.  The EEOC regulations indicate “it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated:

  • Deafness substantially limits hearing;
  • Blindness substantially limits seeing;
  • An intellectual disability substantially limits brain function;
  • Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
  • Autism substantially limits brain function;
  • Cancer substantially limits normal cell growth;
  • Cerebral palsy substantially limits brain function;
  • Diabetes substantially limits endocrine function;
  • Epilepsy substantially limits neurological function;
  • Human Immunodeficiency Virus (HIV) infection substantially limits immune function;
  • Multiple sclerosis substantially limits neurological function;
  • Muscular dystrophy substantially limits neurological function; and
  • Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain

The EEOC regulations further suggest it may be useful in some cases to consider the condition under which and the manner in which the individual performs the major life activity. Additionally, the duration of time it takes the individual to perform the major life activity or the amount of time for which the individual can perform the major life activity may be considered. Comparisons must be to how other people in the general population perform the function.

Other factors to consider may include:

  • The difficulty, effort, or time required to perform a major life activity;
  • The pain experienced when performing a major life activity;
  • The length of time a major life activity can be performed; or
  • The way the impairment affects the operation of a major bodily function.

The question of substantial limitation is an individualized inquiry that must be made on a case-by-case basis. The team must consider how the student performs or engages in major life activities compared to the average student in the district who does not have a disability. Information from a variety of sources should be considered. The focus must be on any major life activity that is limited, not just academic considerations like learning, reading, thinking or concentrating.

When evaluating if a student is substantially limited in learning, teams must be careful to look at more than a student’s grades. If a student, because of a disability, must give substantially more time, energy or effort to achieve a high-performance level when compared with students in the general population, learning may be substantially limited even though the student earns excellent grades.

While both OCR and EEOC have suggested the existence of an impairment does not result in automatic Section 504 coverage, each agency has suggested eligibility is easy to determine in some cases. In Dear Colleague Letter, 58 IDELR 79 (OCR 2012), OCR indicated that while there are no per se disabilities under Section 504, the nature of many impairments is such that in virtually every case a determination in favor of disability will be made: extensive analysis is unnecessary to determine a child with bipolar disorder, diabetes, epilepsy or autism has a disability. EEOC suggests the analysis should be similarly uncomplicated in several cases.

(For more information see Appendix F, Questions 21-22.)

Mitigating Measures

Americans with Disabilities Amendments Act, 42 U.S.C. 12102(4)(E)(i): The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as:

  1. 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, or oxygen therapy equipment and supplies;
  2. use of assistive technology;
  3. reasonable accommodations or auxiliary aids or services; or
  4. learned behavioral or adaptive neurological modifications.

Mitigating measures are not defined in Section 504 regulations. The Americans with Disabilities Amendments Act did not define the term but provided a list of the types of things or interventions that may help to ameliorate the effects of a disability. In general, mitigating measures are anything that helps to eliminate or reduce the symptoms of an impairment. Mitigating measures can include the medication a student takes for ADHD; the health care protocols in place for addressing a student’s allergies, diabetes, or other health conditions; the hearing aid that helps a student with a hearing impairment listen; or accommodations that allow a student with irritable bowel syndrome quick access to bathroom facilities.

Cases on Point

Mitigating Measures
  • Hamilton County (FL) Sch. Dist., 59 IDELR 111 (OCR 2012). Students with disabilities may be eligible for Section 504 plans if they are found to be substantially limited in any major life activity, without regard to the ameliorative effects of mitigating measures other than ordinary eyeglasses or contact lenses. The district’s eligibility determination was faulty where there was evidence the evaluation team considered the effects of the student’s ADHD medication in determining if the student had a Section 504 disability.
  • Palo Verde (CA) Unified Sch. Dist., 56 IDELR 177 (OCR 2010). Where the district admitted the student’s continued participation in his general education program required his continued use of prescription medication the district inappropriately considered the ameliorative effects of mitigating measures.
  • Memphis (MI) Community Schools, 54 IDELR 61 (OCR 2009). An individualized health plan is considered a mitigating measure for a student with a health impairment, and its ameliorative effects cannot be considered in determining if the student is an individual with a disability.  These effects can be considered in determining if the student needs Section 504 services, documented in a Section 504 plan.

With the advent of response to intervention and the focus on positive behavior interventions and supports, there is considerable debate over whether these interventions are mitigating measures. Tier II and Tier III interventions will most likely be considered mitigating measures. Tier I interventions may or may not be mitigating measures. If they are generally used with all students and not individualized for a particular student, it is easier to argue they are not mitigating measures.

Side effects caused by mitigating measures, such as fatigue or nausea caused by chemotherapy for a student with cancer, should be taken into account in making eligibility determinations.

When determining if an individual has an impairment that substantially limits a major life activity, the positive effects of mitigating measures cannot be considered. But, the negative side effects of medication or burdens associated with following a particular treatment regimen may be considered when determining whether an individual's impairment substantially limits a major life activity.

For instance, when evaluating a student with ADHD who takes medication, the team should consider how the student functioned without the medication. The evaluation in this case may include information from medical professionals about the behavior that led to prescribing the medication; information from the parents about the child’s behavior prior to taking the medication; school records, including discipline records, and teacher observations from past school years; conversations with teachers and others from a student’s former school if the student has transferred into the district or transitioned from elementary or middle school to the next level.

(For more information see Appendix F, Questions 20.)

When considering whether a student needs services of accommodations in order to be on equal footing with other students, the effects of mitigating measures may be considered. If the mitigating measure is effective in reducing or eliminating the substantially limiting effect of the impairment, Section 504 accommodations should not be required. Thus, a student with ADHD who is not substantially limited in learning, concentrating, thinking or reading when taking his medication may be eligible for Section 504 protection, but may not need a Section 504 Accommodation Plan. See the section of this chapter entitled “Technically Eligible Students,” for information about these students’ rights.

A school generally cannot require a student to use a mitigating measure such as medication. Whether a child will take medication for a condition is a decision that must be made by a parent in consultation with the student’s physician. Schools cannot require students be medicated in order to attend school.

Episodic Impairments or Those in Remission

If the impairment substantially limits a major life activity when it is active, then the student is eligible under Section 504. When evaluating these conditions, the team must consider how the student would be affected if the allergy were active or the cancer were not in remission.

(For more information see Appendix F, Questions 34.)

Individualized Health Plans

Schools have been providing assistance to students with health needs for many years, often documenting these services in Emergency Action Plans (EAP) or Individualized Health Care Plans (IHCP), sometimes shortened to Individualized Health Plan (IHP) developed by the school nurse in conjunction with parents. Increasingly, schools get requests for accommodations from students with food allergies, chemical sensitivities, asthma, diabetes, seasonal allergies, asthma, cancer, and other medical conditions. Since the amendments to the ADA, questions concerning whether these students should be evaluated under Section 504 have arisen with increasing frequency.

In 2013, the Florida Department of Education provided guidance for schools on this issue. Guiding Principles for Section 504 Committees on Students with Individual Health Care Plans (Florida Department of Education 2013). The guidance acknowledges that not all students with IHCPs will need to be referred for Section 504 evaluation but cautions that students on IHCPs should not be excluded from Section 504 referral or evaluation simply because they have an IHCP that is meeting their needs.

In determining whether a student with an IHCP should be referred for Section 504 evaluation, the guidance suggests looking at the following factors:

  • The intensity of the required health plan services

Does the student who self-administers medication occasionally consult with or seek assistance from the school nurse or is the nurse frequently involved with monitoring the student’s condition?

  • The frequency health plan services are provided

Are services provided intermittently or on a daily or weekly basis?
Will the services continue over an extended period of time?

  • The complexity of health plan services

Are services required across environments?
Does the provision of services require collaboration among staff members?
Is training for staff required?

  • The health or safety risks if the services are not provided or are provided incorrectly

Could serious injury or death occur if the services are not provided?

  • The student’s need for other services or accommodations.

Does the student need accommodations or services to address academic, social, emotional, physical or behavioral needs?

The administration of medication by a school nurse or health aide is generally considered by OCR to be a related school health service. Students with IHCPs who receive assistance with medication administration over an extended period of time should be referred for Section 504 evaluation. Additionally, students with IHCPs who need educational accommodations or services to address academic, social, emotional, physical or behavioral needs are prime candidates for Section 504 evaluation.

OCR opinions classify IHCPs as mitigating measures that cannot be considered in determining if a student is eligible for Section 504 protection. North Royalton (OH) Sch. Dist, 52 IDELR 203 (OCR 2009); Memphis (MI) Community Schs., 54 IDELR 61 (OCR 2009). Further, evaluation under Section 504 should not be delayed based on the existence of an IHCP. Opelika City (AL) Sch. Dist., 111 LRP 47376 (OCR 2011).

Once evaluation under Section 504 has occurred, the same factors may be considered in determining if Section 504 services are necessary. OCR has indicated in most cases an IHCP is not the equivalent of a 504 plan, even though the components may be substantively similar, because procedurally it does not meet Section 504 requirements. If the IHCP is not developed by a properly constituted team of individuals and lacks the procedural safeguards afforded parents under Section 504, it does not meet Section 504 mandates, even though it may be meeting the student’s needs. See Roselle Park (NJ) Sch. Dist., 59 IDELR 17 (OCR 2012); Springer (NM) Mun. Schs., 111 LRP 65450 (OCR 2011).

To avoid potential claims in this area, schools should review existing health care plans to determine if there are children on IHCPs who should be referred for Section 504 evaluation. While the substance of the IHCP will probably not change significantly, the services and accommodations should be determined through Section 504 process and procedures and parents should be apprised of their procedural safeguards. Schools should also ensure that all staff members are appropriately trained on their responsibilities.

(For more information see Appendix G, Question 12.)

Cases on Point

Students on Individual Health Plans
  • Torrington (CT) Bd. of Educ., 60 IDELR 261(OCR 2012). The school district believed it addressed the needs of a student with an allergy to shellfish by placing her on a health plan that provided for administration of epinephrine should she be exposed to shellfish and provided her with a shellfish-free table. The school did not consider whether she was 504-eligible, as was the district’s normal practice for students with allergies. OCR noted that the district knew at least as early as fall 2011 that the student's allergies had the potential to threaten her life. In response to the district’s statement it would never have evaluated the student had the parent not requested it OCR stated, "It is essential that eligibility determinations for students suspected of having disabilities are made within the context of Section 504 so that districts are required to adhere to the procedural requirements of the statute's regulations, including making parents or guardians aware of their due process rights at required junctures. “
  • Canyons (UT) School District, 116 LRP 1183 (OCR 2015). A policy of automatically denying IHPs to students with certain medical conditions may violate Section 504. Instead of denying an eighth-grader with migraines and irritable bowel syndrome an IHP because schoolmates with similar conditions did not "normally" receive IHPs, the district should have conducted an evaluation to determine whether the student's medically related absences and tardiness could be reduced with accommodations under an IHP.
  • Roselle Park (NJ) Sch. Dist., 59 IDELR 17 (OCR 2012). The provision of an individualized health plan (IHP) to help a 10th-grader during his 10-week recovery from foot surgery did not satisfy Section 504 requirements. OCR noted the provision of an IHP could have sufficed under Section 504 if it was developed through 504 procedures, i.e., it drew upon information from a variety of sources; was based on careful consideration of that information; was finalized by a group of persons knowledgeable about the student, the meaning of the evaluation data, and the placement options; and otherwise complied with Section 504 regulations. Although a team comprised of a school nurse, guidance counselor, and the principal reviewed the student's medical documentation and consulted with his mother before finalizing the IHP, the developmental process was still procedurally lacking because the district failed to notify the mother of her right to request a due process hearing if she disagreed with the contents of the IHP. The district's simple failure to provide the mother notice of procedural safeguards made what may have been an otherwise appropriate action plan for the student, inadequate.
  • Forest Hills (OH) Local Sch. Dist., 58 IDELR 114 (OCR 2011). An Ohio district violated Section 504 in failing to identify and evaluate students with diabetes. The district had a practice of addressing the needs of students with diabetes strictly through health plans and conducting Section 504 evaluations only when parents specifically requested them. OCR noted that Section 504 regulations do not require a written plan for providing students with services or that any plan be called a Section 504 plan, but the regulations do set requirements for evaluation and placement of students with disabilities. OCR concluded the district’s blanket policy of not evaluating students with diabetes before providing them with health plans contravened Section 504 regulations.
  • Clarksville-Montgomery County (TN) Sch. Dist., 60 IDELR 203 (OCR 2012). OCR received a complaint that the district discriminated against students with food allergies, diabetes, asthma, and other health impairments who had Individual Health Care Plans in failing to evaluate and identify them as students with disabilities under Section 504. While a student’s medical diagnosis alone is not necessarily sufficient to trigger a district’s obligation to evaluate the child’s need for special education or related services, districts must evaluate students who, because of a disability, need or are believed to need special instruction or related services. After reviewing district records, OCR identified 235 students with IHCPs that should have been, but were not, referred for evaluation. The district offered to resolve the complaint by overhauling its evaluation policies and providing intensive training for staff members on their Section 504 and Title II responsibilities.
  • Memphis (TN) City Sch. Dist., 112 LRP 28755 (OCR 2012). Compliance review data showed that 9,284 students had health care plans. With few exceptions, most of these students were not identified as students with disabilities under IDEA or Section 504. OCR concluded the district failed to even screen and evaluate most students with health care plans for Section 504 services and further violated Section 504 by not providing procedural safeguards to parents.
  • Washington (NC) Montessori Pub. Charter Sch., 60 IDELR 79 (OCR 2012). In this case a student with severe allergies was not evaluated for Section 504 eligibility. The district’s Section 504 coordinator indicated students with allergies and other health conditions, such as diabetes, were not evaluated to determine their eligibilities for Section 504 benefits. OCR noted this violated Section 504 and suggested a plan that meets the needs of students with severe allergies should take into account procedures that limit or prevent their risk of exposure to allergens in all school activities or programs. This means taking protective measures in classrooms, common areas, gyms, cafeterias, hallways, playgrounds, and extracurricular and field trip venues. The district resolved the complaint by offering to evaluate enrollees with health conditions and allergies and to train personnel on their Section 504 obligations.
  • Norton (MA) Pub. Schs., 114 LRP 489440 (OCR 2014). OCR determined the district’s failure to adequately evaluate a student with food allergies may have violated Section 504 and Title II. The student’s parent asserted the district discriminated against her son by allowing him to be exposed to allergens in the classroom, on the bus, and during athletic activities. In resolving the complaint, the district agreed during the next school year to identify each student with a food allergy, contact that student’s parents regarding its Section 504 obligations as they pertain to food allergies, and once the parents provide consent, convene 504 teams to review that student’s medical documentation, health plans, if applicable, and any other documentation concerning the student's condition.
  • Prince William County (VA) Pub. Schs., 64 IDELR 153 (OCR 2014). A school district’s failure to properly evaluate a 5-year-old with severe allergies to wheat and nuts resulted in a Section 504 and Title II violation. Although the district was aware of the student’s severe allergies and reviewed his medical records and health treatment plan during IDEA eligibility meetings, the district never considered whether the student was eligible for a Section 504 plan. OCR found the district had enough information to determine that, while the student did not need services under the IDEA, he may have needed related services for his allergies under Section 504.
  • Union County (NC) Pub. Schs., 64 IDELR 25 (OCR 2014). “[P]ublic school districts [must] take those steps necessary to ensure that the school environment for students with disabilities is as safe as the environment for students without disabilities.” Although the district provided services to a student with food allergies pursuant to an IHP, it did not evaluate her to determine eligibility for Section 504 services. OCR indicated the district’s IHP provisions did not provide the same level of protection as Section 504 affords. OCR found the IHP procedures contained no provisions requiring decisions be made by a group of people knowledgeable about the student and the data being considered, required no commitment by the District that it would provide the aids or services contained in the IHP, which was prepared by the school nurse, and no hearing, appeal, or other due process procedures or rights.

Temporary Impairments

Section 504 does not expressly limit eligibility to permanent disabilities. A temporary disability can constitute a physical impairment if it substantially limits a major life activity such that 504 services might be required. See, e.g., Ventura (CA) Unified School District, 17 EHLR 854 (OCR 1991). The proper inquiry is not whether the impairment is temporary or permanent, but rather whether the impairment substantially limits one or more major life activities, generally over an extended period of time. Letter to Rahall, 21 IDELR 575 (OCR 1994). The determination must be made on a case-by-case basis, considering the nature, severity, duration or expected duration and the permanent or long-term impact resulting from the impairment.

Schools only need to refer and evaluate those children who are suspected of needing Section 504 services due to a physical or mental impairment that substantially limits one or more major life activities. If a child breaks his right wrist, and he is left-handed, the school may legitimately not suspect that 504 services will be necessary. However, if the child breaks the right wrist, accommodations may be necessary. The referral question must be taken up on a case-by-case basis, depending on the physical impairment, whether it substantially limits a major life activity, which may depend on the type of classes or activities the child is involved in at school, and whether it needs to be addressed with 504 services or accommodations of some kind. See Cobb County (GA) Sch. Dist., 51 IDELR 54 (OCR 2008) (services required for a student with mononucleosis who could not attend school for the remainder of the semester).

(For more information see Appendix F, Question 33.)

Excluded from Protection

Any student currently engaging in the illegal use of drugs is excluded from the definition of a student with a disability when a school acts against the student based on that use. The ADA defines current use as “illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use if current or that continuing use is a real and ongoing problem.” 28 CFR 35.104. The definition does not exclude current users of alcohol, but OCR has indicated schools may take disciplinary action against a current alcohol user on that basis in the same manner it would take action against any student using alcohol in violation of school policies.

(For more information see Appendix F, Questions 15-16.)

Determining Eligibility

After considering the evaluation material, the school district may make the following determinations:

  • The student has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions and needs Section 504 services or accommodations;
  • The student has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions, but does not need Section 504 services or accommodations; or
  • The student does not have a physical or mental impairment that substantially limits one or more major life activities or major bodily functions.

Whenever an eligibility decision is made, the school district should provide parents with written notice of the decision and the reason for it, along with a copy of the parents’ procedural safeguards, including their right to request a due process hearing under Section 504.

(For more information, see Appendix G, Question 10.)

Technically Eligible Students

As indicated in the previous sections, a student may fit the definition of an individual with a disability and be eligible for Section 504 protection without needing any special education, related services or other Section 504 accommodations or modifications. In a 2012 Dear Colleague Letter, 58 IDELR 79, OCR provided examples of students who meet eligibility requirements, but do not need services. The list included students with an impairment that is in remission, students whose needs are met with mitigating measures they control, or students who need no services or accommodations despite their substantial limitation.

Schools cannot forget about technically eligible students. Even if a student does not need Section 504 services or accommodations, the eligible student is still entitled to other Section 504 protections, including:

  • Periodic reevaluation;
  • An equal opportunity to participate in extracurricular activities and nonacademic services;
  • A manifestation determination prior to a suspension or expulsion that results in a change of placement (generally, for more than 10 days); and
  • The right to procedural protections, including the right to request an impartial hearing under Section 504.

(For more information, see Appendix G, Question 11.)

Ending Section 504 Services

Once a student no longer meets the Section 504 eligibility requirements, he or she should be dismissed from Section 504 protection. The decision a student no longer has a physical or mental impairment that substantially limits a major life activity should be made by the Section 504 team, following reevaluation. Once dismissed, as a person with a record of a disability, the student is protected from discrimination on that basis, but meetings or accommodations are no longer required.

(For more information, see Appendix F, Questions 14 and 31.)