A Parent
Guide to
SECTION
504
of the
Rehabilitation
Act of 1973
August
2005
Director
of Student Service
This guidebook, A Parent Guide to Section 504, is designed
to give an overview of Section 504 of the Rehabilitation Act of 1973 and answer
basic questions pertaining to the implementation of Section 504 in the Glen
Ridge Public Schools.
While
Section 504 defines the equal access requirements for both students and
employees, this guide will focus on students. This information has been
organized around frequently asked questions when trying to understand this
civil rights statute.
What is
Section 504?
Section 504 of the
Rehabilitation Act of 1973 is an anti-discrimination, civil rights statute that
requires the needs of students with disabilities to be met as adequately as the
needs of students without disabilities. Section 504 was enacted to "level
the playing field," eliminating impediments to full participation by persons
with disabilities. The statute was
intended to prevent intentional or unintentional discrimination against persons
with disabilities, persons who are believed to have disabilities, or family
members of persons with disabilities.
Section
504 states that:
“No
otherwise qualified individual with a disability in the United States, as
defined in section 706(8) 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....” [29 U.S.C. §794(a), 34 C.F.R. §104.4(a)].
Schools must afford
students with disabilities with equal opportunities "to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement" as students without disabilities (Jacob-Timm &
Hartshorne, 1994, p. 29).
Section 504 applies
only to entities that receive federal funds. It is also important to understand that schools
receive no additional funding to implement Section 504 accommodations. At each
school, the responsibility for insuring Section 504 compliance rests with the
building principal or principal’s designee.
Who is
covered by Section 504?
To be covered under
Section 504, a student must be “qualified” (between 3 and 21 years of age and must have a disability) [34 C.F.R. §104.3(k)(2)].
To be covered under Section 504, a
student must be otherwise qualified. This means that a person with a disability must be
qualified to do something before the presence of a disability can be a factor
in discrimination. In other words, if a person with a disability wants to
participate in some activity in which the individual is not otherwise
qualified to participate, not allowing the person to participate would not
be considered discrimination. (Smith, 2001.) For example, a 16-year-old boy
with attention-deficit/ hyperactivity disorder (ADHD) tries out for the
basketball team but cannot dribble, shoot, or pass. As a result, the coach does
not allow the boy to play on the team. This is not discrimination under Section
504 or the
What is a
“disability”?
As defined by federal law:
“An individual with
a disability means any person who:
1. has a mental or physical impairment which substantially limits one
or more major life activity;
2. has a record of such an impairment; or
3. is regarded as having such an impairment” [34 C.F.R.
§104.3(j)(1)].
What is an
“impairment”?
A
mental or physical impairment is defined as any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more
body systems. This can also include any mental or psychological disorder. This
criterion, however, does not limit eligibility to specific diseases or
categories of medical conditions.
What are
“major life activities”?
Major life activities include, but are not limited to: self-care, manual tasks,
walking, seeing, speaking, sitting, thinking, learning, breathing,
concentrating, interacting with others, and working.
Any function that is performed routinely by an individual is considered a major
life activity.
All
students, with and without disabilities, are entitled to a free appropriate
public education. An appropriate education for a Section 504 disabled student
may require the provision of specific accommodations and related services in
order to meet the needs of the student. Section 504 focuses on insuring a level
of access to educational services and the learning process for qualified
disabled students that is equal to that given non-disabled students
What
does “Substantially limits” mean?
In order to be eligible
for services under Section 504 and the
“Substantially limits” will be defined as:
1. unable to perform a major life activity that the average person in the
general population can perform, or
2. significantly restricted as to the condition, manner, or duration for which
an individual can perform a particular major life activity as compared to the
condition, manner, or duration for which the average person in the general
population can perform that same major life activity.
Therefore, the standard to be used
in determining substantial limitation is average performance in the general
population (OCR, 1989b). An example of this would be: if a student with a
disability is performing as well as average children in his grade level, and
the student does not have to do significantly extra work to achieve at this
level, it is unlikely that there is a substantial limitation in learning. This
standard applies, regardless of the intellectual ability of the student. (Smith,
2001)
When determining
whether the substantial limitation requirement is met, the nature and severity
of the impairment, the duration of the impairment, and any long-term impact of
the impairment needs to be considered. However,
being considered for Section 504 services does not mean the student is
eligible. Simply having a
condition or disability does not automatically qualify a student for Section
504 protection. The condition must present a barrier to the student’s ability
to access the same educational opportunities as a non-disabled student.
Mitigating factors may also be considered on a case by case basis.
The
Office of Civil Rights states: "Mitigating
measures" are devices or practices that a person uses to correct or reduce
the effects of his or her mental or physical impairment, such as: 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.
As previously noted
the standard used to determine whether a physical or mental impairment results
in a substantial limitation is “average performance in the general population”.
Therefore, the standard used is not the optimal performance level for a person
but the average performance of individuals found in the general population. For
example, a child with an IQ of 140 who is achieving as well as average children
are achieving does not have a substantial limitation in learning. This may be
difficult for parents to understand, but the standard is average performance in
the general population. (Smith, 2001)
Students
eligible for Section 504 protection must meet the above definition. It is
important to understand that all three criteria must be present for a student
to be eligible for a Section 504 plan.
Equally important, this disability must be why the student cannot
equally access or receive benefit from the school’s programs and
services.
How is a
Section 504 referral made?
A
parent, guardian, teacher, I&RS team, counselor, or other school staff can
initiate a review request for Section 504 eligibility. The person making the
review request will complete a Section 504
Identification Request Form and forward it to the
school principal/or designee. This form is available at your child’s school.
It
is a good idea to discuss the appropriateness of a 504 plan with your child’s
teacher, counselor or principal before completing the review request, as there
are a number of intervention strategies that may be used to assist students. By
discussing your concerns with one of these people, it can be determined if a
504 plan will best support the student’s needs.
Referral
is just the first step of the process. However,
just because a child is referred for Section 504 consideration, a referral does
not mean that the child will be determined eligible. Please note that a child who has a doctor’s
diagnosis does not automatically receive a Section 504 plan. The diagnosis is
only part of the referral and the determination of eligibility rests with
school personnel.
Who determines
eligibility?
Each school in
A Section 504 team needs to include individuals who
are knowledgeable about the needs of the student, the interpretation of the
data being reviewed, and accommodation options available at the school.
Whenever possible, parents should be part of the process but are not required
members as they are under IDEA regulations; however cooperation and
collaboration with the parent(s) is our philosophy in
·
teachers
·
school
nurse
·
principal
or administrative designee
·
school
psychologist
·
school
counselor
·
parents
and/or family members
·
social
worker
·
specialists
The team's first responsibility is to
review the nature of the impairment and determine how it affects the student’s
education. Section 504 eligibility meetings are not intended to be as
comprehensive as a special education evaluation. However, in every case the
eligibility team needs to investigate the specific concern that triggered the
student review request.
A student
must be evaluated by the school district in order to determine Section 504
eligibility. The evaluation must be conducted by a team composed of
individuals who know the student and understand the evaluation
information. Under Section 504, no formalized testing
is required. Since schools must consider a variety of sources, a single source
of information, such as, a doctor’s report, cannot be the only information
considered. Information
to be considered and documented from a variety of sources may include
(but is not limited to):
·
teacher observations, reports
·
anecdotal information and judgments
·
attendance records
·
behavior plans
·
review requests (referral forms)
·
cumulative file information
·
medical information
·
observations
·
home
language survey
·
report
cards
·
disciplinary
records
·
health
records
·
prior
Section 504 or Special Education evaluations or services
·
standardized testing information
·
parent/family
information
·
private
evaluation reports (provided by the parent)
How is eligibility
determined?
School personnel use all available assessment information to
determine which students are eligible under Section 504 and the
How are
504 accommodations and related services documented and reviewed?
If
the eligibility team determines that a student is eligible for a Section 504
plan, the team then identifies the specific accommodations that will support
equal access. Documentation of these accommodations is done in a Section
504 Accommodation Plan. This
plan provides a summary of the accommodations that a student requires in order for
the student to have equal access to the learning process, or to other programs,
activities, and services.
In
What is
meant by the word accommodation and where will these accommodations occur?
Implementation
of most Section 504 Plans occurs in the
regular classroom setting. Accommodations generally are those minor adjustments
to things like seating arrangements, lesson presentation, assignments, and
other facets of the learning environment that provide the student with equal
access to learning opportunities. An example might be moving the student to a
position in the room that best supports his/her ability to focus on schoolwork.
Accommodations might involve the use of such things as special visual aids or
large print. Allowing a student
additional time to complete a specific kind of task is also an accommodation.
Countless accommodations are available that support a student’s equal access to
educational opportunities. It is the job of the eligibility team to identify
those accommodations that will support the needs of a given student that are
the result of the identified impairment.
Miscellaneous
Questions regarding Evaluation and eligibility:
(Excerpts from Office of
Civil Rights guidance document)
1. Can a medical
diagnosis suffice as an evaluation?
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.
2. 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
activities in order to qualify a student for protection under Section 504.
3. Does a medical
diagnosis of an illness automatically qualify a student for services?
No. A medical
diagnosis of an illness does not automatically qualify a student for services under Section 504. The illness must
cause a substantial limitation on the student's ability to learn or other major
life activities. For example, a student who has a physical or mental impairment
would not be considered a student in need of services under Section 504 if the
impairment does not in any way limit the student's ability to learn or other
major life activity, or only results in some minor limitation in that regard.
4. How should a school
district handle an outside independent evaluation provided by the parent? Is
all data considered and given equal weight?
The results of
an outside independent evaluation may be one of the many sources considered.
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 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.
5. 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.
6. What is the
difference between a regular education intervention plan and a Section 504
plan?
A regular
education intervention plan is appropriate for a student who does not have a
disability or is not suspected of having a disability but may be facing
challenges in school. School districts vary in how they address performance
problems of regular education students. Some districts employ teams at
individual schools, commonly referred to as "building teams." These
teams are designed to provide regular education classroom teachers with
instructional support and strategies for helping students in need of
assistance. These teams are typically composed of regular and special education
teachers who provide ideas to classroom teachers on methods for helping
students experiencing academic or behavioral problems. The team usually records
its ideas in a written regular education intervention plan. The team meets with
an affected student's classroom teacher(s) and recommends strategies to address
the student's problems within the regular education environment. The team then
follows the responsible teacher(s) to determine whether the student's
performance or behavior has improved. In addition to building teams, districts
may utilize other regular education intervention methods, including
before-school and after-school programs, tutoring programs, and mentoring programs.
In
7. Must the 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.
8. 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 recipient school district
re-evaluates 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.
9.
What about the parent who says that with a 504 plan, his child could get
the straight A’s (that the parent knows the child should get)? Is that child
eligible under Section 504?
While parents may honestly believe that a child is not performing to his or her
potential, that failure is not sufficient reason for referral and evaluation.
For example, OCR has found no duty to qualify a child 504 despite his having
ADD when the child had acceptable behavior and was making A’s and B’s in all of
his classes.
“When the handicapped child is being educated in the regular classrooms of a
public school system, the achievement of passing marks and advancement from
grade to grade will be one important factor in determining educational benefit.”
Hendrik Hudson District Bd. of Education v. Rowley, 458
What
rights do parents (and students) have under Section 504?
The
following is a list of parent rights granted by federal law. The intent of the
law is to keep parents fully informed concerning decisions made about their
children and to inform them of their rights should disagreement occur over a
504 decision.
PARENT AND
STUDENT RIGHTS UNDER SECTION 504:
1. You
have a right to be informed by the school district of your rights under Section
504/ADA.
2. Your
child has the right to an appropriate education designed to meet his/her
individual educational needs as adequately as the needs of nondisabled students
are met.
3. Your
child has the right to free educational services except for those fees that are
imposed on nondisabled students or their parents. Insurers and similar third parties are not
relieved from an otherwise valid obligation to provide or pay for services
provided to a disabled student.
4. Your
child has a right to placement in the least restrictive environment.
5. Your
child has a right to facilities, services, and activities that are comparable
to those provided for nondisabled students.
6. Your
child has the right to an evaluation prior to an initial Section 504/ADA
placement and any subsequent significant change in placement.
7. Testing
and other evaluation procedures must conform with the requirements of 34 CFR
104.35 as to validation, administration, areas of evaluation, etc. The district shall consider information from
a variety of sources, including aptitude and achievement tests, teacher
recommendations, physical condition, social and cultural background, adaptive
behavior, physical or medical reports, student grades, progress reports, parent
observations, and anecdotal reports.
8. Placement
decisions must be made by a group of persons (i.e. the Section 504/ADA
Committee), including persons knowledgeable about your child, the meaning of
the evaluation data, the placement options, and the legal requirements for
least restrictive environment and comparable facilities.
9. If
eligible under Section 504/ADA, your child has a right to periodic
reevaluations generally every three years.
10. You
have the right to notice prior to any action by the district in regard to the
identification, evaluation, or placement of your child.
11. You have the right to examine relevant
records.
12. You
have the right to an impartial hearing with respect to the district's actions
regarding your child's identification, evaluation, or educational placement,
with opportunity for parental participation in the hearing and representation
by an attorney.
13. If
you wish to challenge the actions of the district's Section 504/ADA Committee
in regards to your child's identification, evaluation, or educational
placement, you should file a written Notice of Appeal with the district's
Section 504/ADA officer within fifteen (15) calendar days from the time you
received written notice of the Section 504/ADA Committee's action(s). A hearing will be scheduled before an
impartial hearing officer, and you will be notified in writing of the date,
time and place for the hearing.
14. If
you disagree with the decision of the impartial hearing officer, you have the
right to a review of the decision by a court of competent jurisdiction.
15. On Section 504/ADA matters other than your
child's identification, evaluation, and placement, you have a right to file a
complaint with the district's Section 504/ADA Officer (or designee), who will
investigate the allegations to the extent warranted by the nature of the
complaint in an effort to reach a prompt and equitable resolution.
16. You
also have a right to file a complaint with the Office of Civil Rights.
Whom
should parents contact when they have a Section 504 complaint?
The
best solutions to parent and student concerns occur at the school level.
Therefore, the first step in resolving a complaint involves the parent or
guardian contacting the building principal and discussing the issue with the
principal and other appropriate building staff. Should the issue not be
resolved through these discussions, the parent or guardian can file a Section
504 Complaint Form with the school principal or
coordinator. The form is available at
your local school. If the issue remains, the parent or guardian can continue
the complaint process by contacting the District 504
Officer. The District 504 Officer
will review and respond to the parent concern. If the concern is still not
resolved, the Superintendent or designee will review the
decision to determine if all District and 504 policies
have been followed.
Information
on how to contact the District 504 Coordinator as well
as other important contacts is listed below. The Office of Civil Rights (OCR)
is the federal agency responsible for enforcing Section 504 compliance. While
the best resolutions occur at the school level, parents and guardians always
have the right to initiate a complaint with OCR or to involve OCR at any time
during the complaint process.
Glen
Ridge Public Schools 504 Contacts
Please
contact your local school principal for additional details on Section 504. If
you should have further needs, the contacts listed below will provide any
assistance.
Section
504/ADA Officer for the
Mrs.
Mrs.
Heather Kobylinski (973)
429-8303 x 2257
Mrs.
Deborah Fitzpatrick (973)
429-8308
Mr.
Joseph Caravela (973)
429-8301
Mr. Dirk
Phillips (973)
429-8306
The
Office of Civil Rights is another valuable resource for Section 504
information. They can be contacted at:
Region II
Office for Civil Rights, Region II
26 Federal Plaza
33rd Floor, Room 33-130, 02-1010
(212) 254-4633; TDD (212) 254-9464
References:
Jacob-Timm, S. & Hartshorne, T.S. (1994). Section 504
and school psychology, Psychology in the Schools, 31, 26-39.
Office of Civil Rights:
http://www.ed.gov/about/offices/list/ocr/504faq.html
Smith, T.E.C.,(2001). Remedial
and Special Education, Vol. 22, No. 6, November/December, 335-343. PRO-ED.
SchwabLearning.org.: A Parent’s Guide to
Section 504.