1. What services are available for students who qualify under Section 504?
Section 504 requires schools to provide students with disabilities appropriate educational services designed to meet the individual needs of such students to the same extent as the needs of students without disabilities are met. An appropriate education for a student with a disability under Section 504 regulations could consist of education in regular classrooms, education in regular classes with supplementary services, and/or special education and related services.
2. What is a physical or mental impairment that substantially limits a major life activity?
The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on the basis of an individual inquiry. The Section 504 regulation, at 34 C.F.R. 104.3(j)(2)(i), defines a physical or mental impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; heroic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulation does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list. Major life activities, as defined in the Section 504 regulation at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. Other functions can be major life activities for purposes of Section 504.
3. Does the meaning of the phrase "qualified student with a disability" differ on the basis of a student's educational level, i.e., elementary and secondary versus postsecondary?
Yes. At the elementary and secondary educational level, a "qualified student with a disability" is a student with a disability who is: of an age at which students without disabilities are provided elementary and secondary educational services; of an age at which it is mandatory under state law to provide elementary and secondary educational services to students with disabilities; or a student to whom a state is required to provide a free appropriate public education under the Individuals with Disabilities Education Act (IDEA). At the postsecondary educational level, a qualified student with a disability is a student with a disability who meets the academic and technical standards requisite for admission or participation in the institution's educational program or activity.
4. Does the nature of services to which a student is entitled under Section 504 differ by educational level?
Yes. Elementary and secondary schools are required to provide a free, appropriate public education to qualified students with disabilities. Such an education consists of regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met. At the postsecondary level, the schools are required to provide students with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in a school's program. Schools are not required to make adjustments or provide aids or services that would result in a fundamental alteration of the schools' program or impose an undue burden.
5. Once a student is identified as eligible for services under Section 504, is that student always entitled to such services?
No. The protections of Section 504 extend only to individuals who meet the regulatory definition of a person with a disability. If a school district reevaluates a student in accordance with the Section 504 regulation at 34 C.F.R. 104.35 and determines that the student's mental or physical impairment no longer substantially limits his/her ability to learn or any other major life activity, the student is no longer eligible for services under Section 504.
6. What is an appropriate evaluation under Section 504?
School districts must establish standards and procedures for initial evaluations and periodic re-evaluations of students who need or are believed to need special education and/or related services because of a disability. The Section 504 regulation, at 34 C.F.R. 104.35(b), requires school districts to individually evaluate a student before classifying the student as having a disability or providing the student with special education. Tests used for this purpose must be selected and administered so as best to ensure that the test results accurately reflect the student's aptitude or achievement or other factors being measured rather than reflect the student's disability, except where those are the factors being measured. Section 504 also requires that tests and other evaluation materials include those tailored to evaluate the specific areas of educational need and not merely those designed to provide a single intelligence quotient, The tests and other evaluation materials must be validated for the specific purpose for which they are used and appropriately administered by trained personnel.
7. How much is enough information to document that a student has a disability?
The amount of information required is determined by the multidisciplinary committee gathered to evaluate the student. The committee should include persons knowledgeable about the student, the meaning of the evaluation data, and the placement options. The committee members must determine if they have enough information to make a knowledgeable decision as to whether or not the student has a disability. The Section 504 regulation, at 34 C.F.R. 104.35(c), requires that school districts draw from a variety of sources in the evaluation process so that the possibility of error is minimized. The information obtained from all such sources must be documented and all significant factors related to the student's learning process must be considered. These sources and factors may include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior. In evaluating a student suspected of having a disability, it is unacceptable to rely on presumptions and stereotypes regarding persons with disabilities or classes of such persons. Compliance with the IDEA regarding the group of persons present when an evaluation or placement decision is made is satisfactory under Section 504.
8. What process should a school district use to identify students eligible for services under Section 504? Is it the same process as that employed in identifying students eligible for services under the IDEA?
School districts may use the same process initially to evaluate the needs of students under Section 504 as they use to evaluate the needs of students under the IDEA. If school districts choose to adopt a separate process for evaluating the needs of students under Section 504, they must follow the requirements for evaluation specified in the Section 504 regulation at 34 C.F.R. 104.35.
9. Must school districts consider "mitigating measures" used by a student in determining whether the student has a disability under Section 504?
Yes. A school district must consider a student's use of mitigating measures in determining whether the student is substantially limited in a major life activity. "Mitigating measures" are devices or practices that a person uses to correct or reduce the effects of that person's mental or physical impairment. Examples include corrective eyeglasses and medications. A person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the definition of a person with a disability and would not be entitled to FAPE under Section 504.
10. Does OCR endorse a single formula or scale that measures substantial limitation?
No. The determination of substantial limitation must be made on a caseby-case basis with respect to each individual student. The Section 504 regulation, at 34 C.F.R. 104.35(c), requires that a group of knowledgeable persons draw upon information from a variety of sources in making this determination.
11. Are there any impairments which automatically qualify a student for protection under Section 504?
No. An impairment in and of itself does not qualify a student for protection under Section 504. The impairment must substantially limit one or more major life activity in order to qualify a student for protection under Section 504.
12. Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE?
No. A physician's medical diagnosis may be considered among other sources in evaluating a student with a disability or believed to have a disability which substantially limits a major life activity. Other sources to be considered, along with the medical diagnosis, include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior.
13. How should a school district handle an outside independent evaluation? Do all data brought to a multi-disciplinary committee need to be considered and given equal weight?
The results of an outside independent evaluation may be one of many sources to consider. Multi-disciplinary committees must draw from a variety of sources in the evaluation process so that the possibility of error is minimized. All significant factors related to the subject student's learning process must be considered. These sources and factors include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior, among others. Information from all sources must be documented and considered by knowledgeable committee members. The weight of the information is determined by the committee given the student's individual circumstances.
14. Who in the evaluation process makes the ultimate decision regarding a student's eligibility for services under Section 504?
The Section 504 regulation at 34 C.F.R. 104.35(c)(3) requires that school districts ensure that the determination that a student is eligible for special education and/or related aids and services be made by a group of persons, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options. If a parent disagrees with the determination, he or she may request a due process hearing.
15. What is reasonable justification for referring a student for evaluation for services under Section 504?
School districts may always use regular education intervention strategies to assist students in school. Section 504 requires school districts to refer a student for an evaluation for possible special education or modification to regular education if the student, because of disability, needs or is believed to need such services.
16. A student has a disability referenced in the IDEA, but does not require special education services. Is such a student eligible for services under Section 504?
The student may be eligible for services under Section 504. The school district must determine whether the student has an impairment which substantially limits his or her ability to learn or other major life activities and, if so, make an individualized determination of the child's educational needs for regular or special education or related aids or services. For example, such a student may receive adjustments in the regular classroom.
17. How should a school district regard a temporary impairment?
A temporary impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activity for an extended period of time. The issue of whether a temporary impairment is substantial enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (and expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.
18. If a student qualifies for services under both the IDEA and Section 504, must a school district develop both an individualized education program (IEP) under the IDEA and a Section 504 plan under Section 504?
No. If a student is eligible under IDEA, he or she must have an IEP. Under the Section 504 regulations, one way to meet Section 504 requirements is to comply with IDEA.
19. Must a school district develop a Section 504 plan for a student who either "has a record of disability" or is "regarded as disabled"?
No. In elementary and secondary schools, unless a student actually has a disabling condition that substantially limits a major life activity, the mere fact that a student has a "record of" or is "regarded as" disabled is insufficient, in itself, to trigger those Section 504 protections that require the provision of a free and appropriate public education (FAPE). The phrases "has a record of disability" and "is regarded as disabled" are meant to reach the situation in which a student either does not currently have or never had a disability, but is treated by others as such.
20. What are the responsibilities of regular education teachers with respect to implementation of Section 504 plans? What are the consequences if the district fails to implement the plans?
Regular education teachers must implement the provisions of Section 504 plans when those plans govern the teachers' treatment of students for whom they are responsible. If the teachers fail to implement the plans, such failure can cause the school district to be in noncompliance with Section 504.
21. Must a school district obtain parental consent prior to initiating a Section 504 evaluation?
Yes. OCR has interpreted Section 504 to require districts to obtain parental permission for initial evaluations. If a district suspects a student needs or is believed to need special instruction or related services and parental consent is withheld, districts may use due process hearing procedures to override the parents' denial of consent for an initial evaluation.
22. What procedural safeguards are required under Section 504?
School districts are required to establish and implement procedural safeguards that include notice, an opportunity for parents/guardians to review relevant records, an impartial hearing with opportunity for participation by the student's parents/guardians, representation by counsel and a review procedure.
23. What is a school district's responsibility under Section 504 to provide information to parents and students about its evaluation and placement process?
Section 504 requires districts to provide notice to parents/guardians explaining any evaluation and placement decisions affecting their children and explaining the parents'/guardians' right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing.