Chapter 16: Information on Section 504 and Disability-Based Discrimination

(16.1) What is disability-based discrimination?

Disability discrimination means denying students with disabilities equal access to educational programs as students who do not have disabilities.  This can include:

1. Denying admission to a student because of a disability;
2. Denying an equal opportunity to participate in the school’s programs;
3. Denying reasonable accommodations;
4. Subjecting a student with a disability to different standards and requirements;
5. Providing a student with a disability an aid or benefit that is not as effective as that provided to others;
6. Placing a student with a disability in a different or separate program, unless doing so is necessary to ensure her equal participation in the program.
   [34 C.F.R. Sec. 104.4.]

(16.2) What federal and state laws protect my child against disability-based discrimination?

These federal statutes provide protections:

Section 504 of the Rehabilitation Act, (Section 504) and Title II of the Americans with Disabilities Act (ADA) are federal laws that prohibit discrimination on the basis of disability. [42 U.S.C. Secs. 12101-12213;
29 U.S.C. Sec. 794.] Section 504 applies to any entity that receives federal financial assistance including all public school districts and most private schools. [29 U.S.C. Sec. 794(b).] Title II of the ADA applies to all state and local government agencies including public schools. [42 U.S.C. Secs. 12131-12165.] Title III of the ADA applies to all places of “public accommodations”, including private schools.  [42 U.S.C. Secs.12181-12189.] Section 504 applies to religious schools; the ADA does not. 
[28 C.F.R. Sec. 36.102(e).]

These California laws provide protections:

The Unruh Civil Rights Act (Unruh Act) protects students from discrimination by “business establishments” including public and private schools. [Cal. Civ. Code Sec. 51(b).]  The Unruh Act does not apply to religious schools that are open only to students of a particular religion, or espouse religious doctrine.  Any violation of the ADA is automatically a violation of the Unruh Act. [Cal. Gov. Code Sec. 51(f).]  California Gov. Code Sec. 11135 (Section 11135) prohibits discrimination in any program or activity that is conducted or directly funded by the state. [Cal. Gov. Code Sec. 11135(a).]  Programs and activities under Section 11135 are also mandated to conform with the requirements of ADA as well. [Cal. Gov. Code Sec. 11135(b).]  Section 11135 applies to all public schools and any private school, religious or non-religious, that receive financial assistance from the State of California.

California Education Code Section 220 similarly prohibits discrimination in any program or activity conducted by an educational institution that receives or benefits from state funding. [Cal. Ed. Code Sec. 220.]  This includes schools which have students with state student financial aid.  The courts have held that this provision of the Code is only violated by “behavior so severe and pervasive that it has a systemic effect of denying the victim equal access to an educational program or activity”. [J.E.L. v. San Francisco Unified Sch. Dist., 185 F. Supp. 3d 1196 (N.D. Cal. 2016).]

(16.3) Does my child’s school have to make extra efforts to ensure that my child participates fully in school programs and activities?

Yes. To ensure non-discrimination, a school must take steps to afford people with disabilities an equal opportunity to participate in their programs and activities, and to access and receive the aids, services and benefits that are afforded to people without disabilities on an equal basis. [42 U.S.C. Secs. 12132, 12182; 29 U.S.C. Sec. 794.]  In order to ensure equal participation, the school may need to provide reasonable accommodations (also known as “reasonable modifications”) to a person with a disability as long as the accommodation does not fundamentally alter the program or impose an undue administrative or financial burden on the school.  These accommodations may include changes to school rules, policies or practices, or provision of additional services to allow students with disabilities equal access to educational programs. [See 42 U.S.C. Sec. 12182(b)(2)(a).]

When an entity claims that an accommodation causes a fundamental alteration or undue burden, it has the burden to prove that the claim would not result in a fundamental alteration or undue burden, and to ensure that, to the maximum extent feasible, individuals with disabilities receive the benefits of the program. [28 C.F.R. 35.130(b)(7); 28 C.F.R. Sec. 35.164.] The claim for fundamental alteration or undue burden does not apply to  situations in which the school is obligated to provide a free, appropriate public education (FAPE) under Section 504. [See Dear Colleagues Letter, 60 IDELR 167, (OCR 2013).] To challenge a school district’s claim of fundamental alteration or undue burden, the parent must file a complaint with the Office for Civil Rights (OCR).  See Q & A 24 U.S. Dept. of Education for more information for filing with O.C.R..

(16.4) What programs of the school district are covered by Section 504 and the ADA?

The ban on disability-based discrimination applies to all programs, activities and services of the school district (i.e., all academic programs, all nonacademic programs, and extracurricular activities). Here are some examples of 504-covered programs and activities that must be made available to students with disabilities on an equal basis:

1. Academic programs – including, but not limited to:  regular education classes, remedial/instructional classes, after-school classes and supports, and graduation ceremonies;
2. Nonacademic services and activities including, but not limited to: field trips, sports/athletics/interscholastic programs, music/play activities, student and special interest clubs and cheerleading opportunities.

(16.5) What are some examples of reasonable accommodations available under Section 504/ADA?

In order to ensure the equal participation of a child with a disability in its programs, the school district may need to provide nonsubstantive changes in the administration of a program, specialized devices and assistive technology, accessible vehicles, a personal health assistant, communications in alternative formats, permission to use trained service animals and special education services. 

(16.6) What criteria does my child need to meet to be eligible for protections and services under federal and state discrimination laws?

A student is protected under disability discrimination laws if she:

1. Has a physical or mental impairment that limits  (under state law) or substantially limits (under federal law), one or more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment.

In making this determination, the school must take a broad view of the available information in favor of finding that the student has a disability.
[28 C.F.R. Sec. 35.108(a)(2); 29 U.S.C. Sec. 794(d).]

The key component of the eligibility criteria is the requirement that a student have a “physical or mental impairment that substantially limits a major life activity.

This language has three parts:

1.  Physical and mental impairment;
2.  Substantial limitations; and
3.  Major life activity.

Federal law defines a physical or mental impairment as:

1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
2. Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.
   [28 C.F.R. Sec. 35.108.]

Physical or mental impairments include, but are not limited to: orthopedic, visual, speech, hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia, learning, reading, and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus Infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

Under federal law, the condition/disability must substantially limit a life activity. “Substantially limits” means a significant limitation on the ability of an individual to perform a major life activity as compared to most people in the general population.  A substantial limitation does not need to prevent, or significantly or severely restrict the performance of the activity.

This determination should be made through an individualized assessment that:

1. Does not take into account the ameliorative effects of mitigating           measures except ordinary eyeglasses and contact lenses;
2. Need not be based on scientific, medical or statistical evidence, unless deemed appropriate;
3. But can, in a particular case, involve consideration of the condition, manner and duration in performing a major life activity such as effort and time required, pain experienced or the effect on a major bodily function.”

Mitigating measures include, but are not limited to:

1. Medication, medical supplies, equipment, appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies;
2. Use of assistive technology;
3. Reasonable modifications or auxiliary aids or services;
4. Learned behavioral or adaptive neurological modifications; or
5. Psychotherapy, behavioral therapy, or physical therapy.

Major life activitiesinclude, but are not limited to:

1. Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and
2. The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system. [28 C.F.R. Sec. 35.108(b)(1)(i).]

The definition of disability under state law is broader, extending to any health impairment that requires special education or related services. [Cal. Civ. Code Sec. 51(e)(1); Cal. Gov. Code Sec. 11135; Cal. Gov. Code Sec. 12926(m)(2).]

An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Similarly, a temporary illness is a disability if it substantially limits a major life activity for an extended period of time that will likely disrupt a student’s education.
[28 C.F.R. Sec. 35.108(d)(1)(iv)-(ix).]

(16.7) What are some examples of an “impairment that substantially limits a major life activity”?

Examples of an impairment that substantially limits a major life activity include, but are not limited to:

1. Deafness substantially limits hearing;
2. Blindness substantially limits seeing;
3. Intellectual disability substantially limits brain function;
4. Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
5. Autism substantially limits brain function;
6. Cancer substantially limits normal cell growth;
7. Cerebral palsy substantially limits brain function;
8. Diabetes substantially limits endocrine function;
9. Epilepsy, muscular dystrophy, and multiple sclerosis each substantially limits neurological function;
10. Human Immunodeficiency Virus (HIV) infection substantially limits immune function; and
11. Major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia each substantially limits brain function.

These disabilities/conditions may substantially limit a child’s major life activity of learning.

(16.8) What do “having a record of an impairment” and “being regarded as having an impairment” mean?

Having a record of an impairment means having a history of, or being misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. Reasonable modifications may be appropriate for a person with a record of an impairment when needed and related to the past disability.

Being regarded as having an impairment means being subjected to discrimination because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the entity can show a defense to the alleged discriminatory action. [28 C.F.R. Sec. 35.108(a)(1)(iii).]

(16.9) My child has a disability under Section 504. What is her school’s educational obligation?

Section 504 requires every covered school district or educational agency (district) to provide a free, appropriate public education (FAPE) to every eligible student. [34 C.F.R. Sec. 104.33)(a).] The district must make available educational and related services that are designed to meet the needs of students with disabilities as adequately as the needs of students without disabilities are met. [34 C.F.R. Sec. 104.33(b).] Appropriate education under Section 504 is defined as: “the provision of regular or special education and related aids and services” that:

1. Are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met; and
2. Are carried out in compliance with Section 504 procedures.
   [34 C.F.R. Sec. 104.33(b)(2).]

In examining whether a district has met its FAPE obligations under Section 504, the Office for Civil Rights (OCR) looks at three factors:

1. Did District evaluate the student in compliance with Section 504 requirements?
2. Did District determine the student’s needs based on an individual basis:
3. Did District provide aids and services necessary to meet the student’s individual needs. [Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012).]

School districts cannot evade their duty to provide FAPE under Section 504 by claiming fundamental alteration or undue burden. [See Dear Colleagues Letter, 60 IDELR 167 (OCR 2013).]

A child who is eligible under Section 504/ADA on the basis of having a qualifying impairment resulting in a substantial limitation of a major life activity should be evaluated to determine her needs for aids and services in order to receive FAPE. However, having a record of an impairment or being regarded as having an impairment in themselves do not entitle a student who meets either criteria to FAPE under Section 504/ADA.  A student must meet all three components of the Section 504 eligibility criteria to be eligible for protections and services. 

One way a district can provide FAPE under Section 504 is by providing an Individualized Educational Program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA).  [34 C.F.R. Sec. 104.33(b)(2).] See Chapter 4 for Information on IEP Process. Typically, however, districts use a document commonly known as a 504 Plan to identify a child’s disability, report the results of evaluations, determine the aids and services the child requires, and decide on the placement in which she will be educated.

(16.10) Must school districts be proactive in identifying students who may be eligible for educational services under Section 504?

Yes. School districts have an obligation under Section 504 to look for and assess students who may be eligible under this law. This is commonly known as “Child Find”. Districts must “identify and locate” every eligible student with disabilities living in their jurisdiction (including a homeless child) “who is not receiving a public education”.  [34 C.F.R. Sec. 104.32(a).] Districts must “identify and locate” every eligible student with disabilities living in their jurisdiction (including a homeless child) “who is not receiving a public education”.  [34 C.F.R. Sec. 104.32(a).]  Districts must inform students and their parents of this obligation. [34 C.F.R. Sec. 104.32(b).] In addition, districts are required to evaluate students who, because of a disability “need or are believed to need special education or related services”.  [34 C.F.R. Sec. 104.35(a).] These regulations put an affirmative duty on districts to have procedures in place to ensure that a child with a potential eligibility under Section 504 is promptly evaluated.

These circumstances can trigger the duty of your district to evaluate your child for Section 504 eligibility, ongoing behavioral and disciplinary problems, medical/psychological documentation of a condition provided by parents, sudden need for a wheelchair, or hospitalization due to psychological and emotional needs. Likewise, information from a screening test could raise the suspicion of a disability and be subject to the inquiry on whether district has met its Child Find duty. Additionally, because the ADA Amendment Act (ADAA), effective on January 1, 2009, expanded the scope of disability under both the ADA and Section 504 (especially with respect to mitigating factors, temporary disabilities and impairments that are episodic or in remission), districts’ Child Find duty must be designed to identify students who are now covered under the broader definition.

(16.11) What is the evaluation process for Section 504?

Section 504 does not establish a specific assessment process. But each school district must have standards and procedures in place and ensure that:

1. Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
2. Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
3. Tests are selected and administered so as best to ensure that when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect his aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting his impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).
   [34 C.F.R. Sec. 104.35.]

Additionally, Section 504 does not establish a timeline for completing evaluations. However, districts must complete the process, which includes the initial evaluation, within a reasonable period of time. [Lumberton (MS) Pub. Sch. Dist., (OCR 1991).] OCR looks to state law as a guideline to decide what is a reasonable period of time. [Beach Park (IL) CMTY Consol. Sch. Dist. (OCR 2013).]  In California, the timeline for conducting a special education evaluation is 60 days from the date parent gives informed consent to the evaluation.[Cal. Ed. Code Sec. 56344(a).]  If a district does agree that a child has or may have such an impairment, a delay of four months to conduct the evaluation was found to be violation of Section 504.  [Tracy Unified School District (2015) Office for Civil Rights, Western Division, San Francisco.]

Once a child is found eligible under Section 504, the school district must also conduct periodic re-evaluations of that child. [34 C.F.R. 104.35(d).] To meet this duty, the school district can follow the evaluation requirements and procedures under the IDEA. Parents should write to their district Section 504 Coordinator and obtain a copy of the district’s 504 Policies and Procedures. [34 C.F.R. Sec. 104.35.]

(16.12) If I request an assessment for Section 504 eligibility, does the school district have to assess my child to determine her eligibility for accommodations and/or services? Can I appeal if my child is denied eligibility?

No.  If the school district believes that your child does not have a “physical or mental impairment which substantially limits a major life activity”, the district may refuse to evaluate her.  You would have to file for and prevail in  a Section 504 hearing to require the district to evaluate your child for eligibility.  [OCR Memorandum April 29, 1993; 19 IDELR 876.]

If your child is not found to have a disability for purposes of Section 504 accommodations and/or services, you can appeal that determination. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency. The hearing officer could be, for example, a special education administrator from another school district, from the County Office of Education or from a special education local plan area (as long as there is no conflict of interest).  See Q & A #16.

(16.13) If a student is eligible for services under Section 504 only, can she receive special education services?

Yes.  An OCR Memorandum written April 29, 1993, addresses this question: Is a child...who has a disability within the meaning of Section 504 but not under the IDEA, entitled to receive special education services?

Yes.  If a child...is found to have a disability within the meaning of Section 504, he or she is entitled to receive any special education services the placement team decides are necessary. [19 IDELR 876.]

Districts generally are not aware of this OCR legal interpretation.  If you believe your child needs special education services to receive FAPE, you should inform the 504 planning team of the above memo before meeting.

(16.14) Does Section 504 require provision of related services?

Yes. Section 504 requires the provision of “related aids and services”, in connection with a student’s right to regular or special education. The aids and services should be designed to provide her with an appropriate education.  This means the district must provide those aids and services that meet her individual education needs as adequately as the needs of students without disabilities. [34 C.F.R. Sec. 104.33.]

The provision of aids and services must be made based on an evaluation of the child, by a group of persons knowledgeable about the child and the evaluation data, and in conformity with the requirement for a least restrictive environment (LRE) and district’s procedural safeguards.
[34 C.F.R. Secs. 104.34 -104.36.]

The scope of aids and services under Section 504 is substantially similar to the provision of “related services” for a child who has an IEP under the IDEA. However, unlike the IDEA, Section 504 does not provide an illustrative list of the aids and services a child may receive. School health/nursing services, administration of medication, assistive devices and even athletic and nonacademic programs are examples of related aids and services that are furnished under Section 504.

(16.15) How should a school make a placement decision for my child who is eligible for services under Section 504?

The placement decision for a child who is eligible for services under Section 504 begins with an evaluation. [34 C.F.R. Sec. 104.35.] Once evaluations are conducted, the school should interpret the evaluation information and make a placement decision by:

1. Drawing upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior;
2. Establishing procedures to ensure that information obtained from all such sources is documented and carefully considered;
3. Ensuring 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;
4. Ensuring that the placement decision is made in conformity with the mandate for least restrictive environment (LRE).
   [34 C.F.R. Sec. 104.35.]

The LRE mandate states that the school must educate or provide for the education of a student with a disability alongside students without  disabilities to the maximum extent appropriate to the needs of the student with a disability. The school’s first choice should be the “regular educational environment” unless it is demonstrated that the education of the student with a disability in this environment with the use of supplementary aids and services cannot be achieved satisfactorily. If a placement other than the regular environment is chosen, the school must take into account the proximity of the alternate setting to the child’s home. [34 C.F.R. Sec. 104.34.(a).] If the school operates a separate facility for students with disabilities, it must ensure that the facility and the services in that facility are comparable to the school’s other facilities and services. [34 C.F.R. 104.34.(c).] The LRE mandate applies equally to the school’s nonacademic and extracurricular services, activities and  programs.
[34 C.F.R. Sec. 104.34(b).]

Section 504 is not as specific as the IDEA regarding many aspects of placement of students with disabilities. However, OCR has found that the following may be provided under Section 504:

1. The duty to have a continuum of alternative placement options. [Boston (MA) Renaissance Charter Sch., (OCR 1997)];
2. Home instruction placement based on an individualized determination. [Forest Hill (MI) Pub. Schs., (OCR 2013)];
3. Placement in general classroom with age-appropriate peers. [Edgefield County (SC) Sch. Dist., (OCR 1990).]

(16.16) Does Section 504 establish procedural safeguards for parents?

Yes. Section 504 requires school districts to establish a system of procedural safeguards to include the following rights for parents:

1. Right to a written notice of procedural safeguards containing information about identification, evaluation, refusal to evaluate and educational placement of the child. [Forest Hills (OH) Local Sch. Dist., 58 IDELR 114 (OCR 2011).];
2. Right to information about denial of an educational placement and any significant change of placement. [Hudson (NH) Sch. Dist., 58 IDELR 22 (OCR 2011).];
3. Right to an evaluation of a child suspected to have a disability before the initial placement and before any subsequent significant change of placement.  [Lourdes Charter Sch., 57 IDELR 53 (OCR 2011).];
4. An opportunity to examine all relevant records in a timely manner. [Indian Prairie Sch. Dist., 51 IDELR 255 (OCR 2008).];
5. Right to an impartial hearing, with participation by parent and representation by counsel, for disputes concerning identification, evaluation or educational placement of the child. [Talbot County (OH) Pub. Schs., 52 IDELR 205 (OCR 2008).];
6. Right to appeal the final decision of the impartial hearing officer to a court of competent jurisdiction. [Forest Hills (Oh) Local Sch., 58 IDELR 114 (OCR 2011).];

(16.17) When does the school need parent’s consent under Section 504?

The school must obtain parent’s consent prior to conducting the initial evaluation for eligibility and for the provision of services to the student under Section 504. The form of the consent is not specified by Section 504 and the school can follow the IDEA’s procedures. Written consent is appropriate and is required under the IDEA. If a parent does not provide consent, the school may use the due process to obtain an override of the parental refusal. However, OCR has reminded school districts that under the IDEA, school districts may not initiate due process to override parental refusal to consent to initial provision of services.[ See Protecting Students with Disabilities, FAQs, (OCR 2016).]

(16.18) What rights to her school’s nonacademic and extracurricular services does my child have under Section 504?

Section 504 prohibits discrimination on the basis of disability in the administration of both academic and nonacademic services and activities of a covered entity. [34 C.F.R. Sec. 104.37.] Specifically, a school or an educational agency covered by Section 504 must provide nonacademic services and activities in a manner that is necessary to afford a student with a disability an equal opportunity to participate in those services and activities at every level of participation from applying for the service or activity to participation with reasonable modification and necessary aids and services. [Jurupa (CA) Unified Sch Dist., (OCR 2015).] For instance, OCR has found an afterschool program could not disenroll a child with a developmental disability because of his behaviors without conducting an individualized inquiry into how to address the student’s behaviors. [Elmore County (AL) Sch Dist., (OCR 2017).] The provision of modifications, aids and services under Section 504 are not required if they fundamentally alter the service or activity or impose undue financial or technical burden on the school or agency. [28 C.F.R. Sec. 35.130(b)(7).]

Nonacademic services and activities include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school, referrals to agencies which provide assistance to persons with disabilities, and employment of students, including both employment by the school and assistance in making available outside employment. [34 C.F.R. 104.37(a)(2).]

If the school provides personal, academic, or vocational counseling, guidance, or placement services, it must also ensure that students with disabilities are not counseled toward more restrictive career objectives than are students without disabilities with similar interests and abilities.
[34 C.F.R. Sec. 104.37(b).]

When offering physical education courses or operating or sponsoring interscholastic, club, or intramural athletics, the school shall make an equal opportunity available to students with disabilities to participate in those programs. [34 C.F.R. Sec. 104.37(c)(1).]

The school is permitted to offer separate and different physical education and athletic activities, but only if students with disabilities are not denied an equal opportunity to compete for teams and participate in activities that are offered to all students. [34 C.F.R. Sec. 104.37(c)(2).]

According to OCR, Section 504 does not give every student with a disability the right to be on an athletic team. In addition, the school is not required to create a separate or different activity for students with disabilities. However, the school must make a reasonable, timely, and good-faith effort to determine whether students with disabilities can participate in existing activities with modifications, aids and supports. This determination can occur outside the Section 504 team process. [See Dear Colleagues Letter of January 25, 2013 (OCR 2013).]

(16.19) What are some health conditions that are typically covered by Section 504, and what accommodations are provided to a child with a health condition?

A child with any health condition may qualify under Section 504 if the condition substantially limits her in a major life activity such as breathing, respiratory function, immune function, concentration,  caring for one’s self, or learning. [42 U.S.C. Sec. 12102(2)(B)-(4)(E).] Conditions such as diabetes, asthma, food allergy, environmental allergy (multiple chemical sensitivity), epilepsy, and Attention Deficit Hyperactivity Disorder (ADHD) are commonly covered by Section 504 when there is evidence that the condition limits the child’s ability to perform a major life activity as compared with other children of same age in the general population. [28 C.F.R. Sec. 35.108(d)(1)(v).] These conditions may also qualify a child for an IEP under the IDEA’s category of other health impairment (OHI). See Chapter 3, Information on Eligibility Criteria.

Once a child is eligible under Section 504, her school has an overarching obligation to ensure that she has an equal opportunity to receive the same benefits and participate in the same programs as her peers without disabilities on an equal basis. [34 C.F.R.Sec.104.4.] OCR has held that schools have an obligation under Section 504 to take steps to make school environments as safe for students with disabilities as they are for students without disabilities. [Washington (NC) Montessori Pub. Charter Sch., 60 IDELR 79 (OCR 2015).] Also, the school must ensure that students with disabilities are not excluded from a program, class or an extracurricular activity because of  their disability if appropriate and reasonable accommodations addressing their disability needs can be implemented to ensure their safe and effective participation. [Bethlehem (NY) Cent. Sch. Dist.,52 IDELR 69 (OCR 2009); Donegal (VA) Sch Dist., 66 IDELR 231 (OCR 2015).]

In addition to its duty to prevent discrimination on the basis of disability, districts, through evaluations, must make an individualized determination of the impact of the health condition on the child and identify specific accommodations and services in her 504 plan that will ensure her receipt of a FAPE as well as her equal participation in district programs and activities. [34 C.F.R. Sec. 104.35.] The following accommodations have been found appropriate and reasonable for some of the health conditions covered under Section 504.

Diabetes

1. Administering insulin when student is unable to self-inject. [Duval County (FL) Pub. Schs., 113 LRP 27887 (OCR 04/19/13).];
2. Administering insulin and glucagon, and calculating ketones on field trips.[Clayton County (GA) Sch. Dist., 52 NDLR 170 (OCR 2015).];
3. Developing nutritional information for school lunches), [Rudyard (MI) Area Schs.,115 LRP 10469 (OCR 10/19/14).];
4. Installing insulin pod refills for an insulin pump), [Prince William County (VA) Pub. Schs., 69 IDELR 168 (OCR 2016).];
5. Administering insulin and providing snacks on the school bus, [Bryan County (GA) Schs., 69 IDELR 43 (OCR 2016.]

Asthma

1. Assisting with the use of inhalers and administering medication, [Pueblo (CO) Sch. Dist. 60, 60 IDELR 25 (OCR 2012).];
2. Providing transportation to school. [ Montgomery County (AL) Pub. Schs., 68 IDELR 282 (OCR 2016).;
3. Developing a safety emergency plan and informing all school staff of the steps to take under the plan. [Encinita (CA) Union Sch. Dist., 114 LRP 23545 (OCR  01/29/14).] ;
4. Letting student administer an epinephrine auto-injector pen; [Franklin County (TN) Pub. Schs., 52 IDELR 143 (OCR 2009).] ;
5. Prohibiting presence of substances such as peanuts and peanut products from classes. [South Windsor (CT) Pub. Schs., 49 IDELR 107 (OCR 2007).];
6. Installing hand-wash stations outside class. [Encinitas (CA) Union Schs. Dist., 114 LRP 23545, (OCR 01/29/14).]; 
7. Apprising cafeteria staff of food restrictions. [Henry County (MO) R-I Sch. Dist.,52 IDELR 233 (OCR 2009).];

Food Allergies. 

1. Developing a safety emergency plan and informing all school staff of the steps to take under the plan. [Encinita (CA) Union Sch. Dist., 114 LRP 23545 (OCR  01/29/14).] ;
2. Letting student administer an epinephrine auto-injector pen; [Franklin County (TN) Pub. Schs., 52 IDELR 143 (OCR 2009).] ;
3. Prohibiting presence of substances such as peanuts and peanut products from classes. [South Windsor (CT) Pub. Schs., 49 IDELR 107 (OCR 2007).];
4. Installing hand-wash stations outside class. [Encinitas (CA) Union Schs. Dist., 114 LRP 23545, (OCR 01/29/14).]; 
5. Apprising cafeteria staff of food restrictions. [Henry County (MO) R-I Sch. Dist.,52 IDELR 233 (OCR 2009).];

Environmental Allergies (Multiple Chemical Sensitivity)

1. Monitoring by qualified nurse;
2. Developing protocol ensuring oxygen availability;
3. Carrying out emergency protocol.
   [Stafford County (VA) Pub. Schs., 70 IDELR 164 (OCR 2017).]

Epilepsy

1. Providing aide with medical training to address seizure episodes.[Yakima (WA) Sch. Dist. No. 7, 64 IDELR 53 (OCR 2014).]

Hirschsprung's Disease

1. Assisting with use of colostomy bags.
   [Alachua County (FL) Sch. Dist., 52 IDELR 204 (OCR 2009).]

Tube Feeding

1. Providing tube feeding in the classroom.
   [Huntsville (AL) City Schs., 73 IDELR 270 (OCR 2018).]

ADD/ADHD

1. Administering medication during school day.
   [Letter to Mentink, 19 IDELR 1127 (OCR 1993).]

(16.20) What are the rules governing the discipline of students identified as having a disability under Section 504?

If discipline of a student results in her removal from her educational placement and that removal constitutes a “significant change in placement”, Section 504 requires her school to conduct an evaluation before the disciplinary removal. [34 C.F.R. Sec. 104.35(a).] According to OCR, the exclusion of a student for more than 10 consecutive days, the exclusion for an indefinite period, and the permanent exclusion of a student (expulsion) can constitute significant changes of placement under Section 504. A series of suspensions — each of which is 10 or fewer days in duration, but that creates a “pattern of exclusions” — may also be a significant change in placement. [Office for Civil Rights, Letter re: Akron City School Dist., 19 IDELR 542 (Nov. 18, 1992) (cited in Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1495 (9th Cir. 1994).]

Similar to the process under the IDEA, this evaluation under Section 504 is known as a Manifestation Determination Review (MDR). The purpose of the evaluation or MDR is two-fold:

1. Determine whether the misconduct underlying the disciplinary action was related to the student’s disability; and,
2. If so, determine whether the student’s current educational placement is appropriate. [34 C.F.R. Sec. 104.35(d).]  

If the behavior or misconduct is found to be related to the student’s disability or if the student’s current placement is inappropriate, the school cannot expel the student and should review and revise the student’s 504 services to ensure that the district is providing FAPE to the student.

The determination of the relationship between the misconduct and disability may be made by the same group of persons who make initial placement decisions for Section 504 students. Recent psychological evaluation information related to the behavior should be made available to the group. The determination should not be made by those responsible for the district’s regular disciplinary procedures, such as administrators, who lack expertise and personal knowledge about the student. These individuals, however, may participate as members of the placement decision group.

If it is determined that the misconduct is not caused by the student’s disability, the student may be expelled from school in the same manner as students without disabilities. For a student eligible solely under Section 504, Section 504 and the ADA would permit all educational services to cease. This is one of the differences between the standards under Section 504 and those applied to students eligible for services under the IDEA.

Under the   IDEA, a school district must continue to provide FAPE to a student who has been expelled from school. [Discipline of Student with Disabilities in Elementary and Secondary Schools, OCR, October 1996, available at: http://corporate.findlaw.com/law-library/discipline-of-students-with-disabilities-in-elementary-and.html.]

Another important distinction between Section 504 and IDEA discipline procedures is what could happen to a student eligible for Section 504 while these important educational decisions at an MDR or administrative hearing are being made.  Unlike the IDEA discipline procedures, the Section 504 procedures do not have a “stay put” provision. Therefore, even if you have requested a hearing to challenge the results of the MDR and the hearing is pending, a Section 504 student’s placement or services could be changed or he could be expelled from school.  However, OCR has suggested that changing a student’s placement before the parent has challenged the decision “seems to undermine the rights given by due process’, and that a “fair due process system would encompass the school district waiting for the results of the process before making the change”. [Letter to Zirkel,22 IDELR 667(1995).]

If the behavior is related to the current use of alcohol or illegal drugs, school districts may take disciplinary action against a student with a disability to the same extent that it takes disciplinary action against persons not having disabilities.

(16.21) My child has a Section 504 plan. How is she protected against bullying at school?

Section 504 and the ADA prohibit any intimidation or abusive behavior related to a student’s disability that creates a hostile environment for the student and causes her to lose education, services and activities for which she is eligible. To be illegal, the bullying behavior must be severe, persistent and pervasive. However, a one-time conduct can violate the law if it is very severe. [See Dear Colleagues Letter, 111 LRP 45106 (OCR 07/25/00).];

Harassment/bullying can occur in different forms:  verbal, nonverbal and physically threatening, bullying, harmful and humiliating, and can be present even if the student does not show a tangible effect. Disparaging comments, obstructing accessible paths, inappropriate physical restraints and denial of school activities such as field trips and school assembly could all be unlawful harassment if they meet the criteria. [See Dear Colleagues Letter, 55 IDELR 174 (OCR 2010).];

Once the school or the educational agency knows or should know about the harassment, it must take the following actions promptly:

1. Investigate the incident or allegation;
2. Act to remedy the impact of the harassment on the student which may include compensatory services for denial of a free and appropriate education;
3. Ensure the behavior will not recur which can include providing counselling to the student who was harassed and the person(s) responsible for the harassment;
4. Ensure that the hostile environment is ended by taking schoolwide or districtwide actions such as establishing and disseminating anti-harassment policy, creating an effective grievance process, training to staff and students and a monitoring protocol. [See Los Angeles (CA) Unified Sch. Dist. (OCR 2007).];

(16.22) Can the school district retaliate against me or my child for using our rights under Section 504?

Retaliation is an act of discrimination, coercion, intimidation or threat against a person for the purpose of interfering with the exercise of a protected right.  Retaliation is illegal under both federal and state laws, including Section 504 and the ADA.

In addition, California Education Code Section 56046 protects an employee or contractor of a school district or other local educational agency who advocates, or assists the parent in advocating for a student with exceptional needs to obtain services or accommodations for the student.  An educational agency is barred from retaliating against the helpful staff member for the purpose of interfering with the action of that person.
[Cal Ed. Code Sec. 56046(a).]

In most cases, retaliation is inferred from surrounding circumstances, in which case four questions are asked:

1. Did the person engage in a legally protected activity?
2. Was the person the target of adverse action?
3. Was there a connection between the protected activity and the adverse action to support an inference of retaliation?
4. Did the school identify a legitimate, non-retaliatory reason for the adverse action?

For a more detailed explanation of retaliation, please see: https://www.disabilityrightsca.org/publications/is-the-school-retaliating-a-guide-to-your-rights.

(16.23) My child who is eligible for services under Section 504 has transferred to a new school district. What happens to his Section 504 plan from the previous district?

In the new school district, a group of persons knowledgeable about the evaluation data regarding your child and placement options in the district should review the plan. If the team determines that the plan is appropriate, then the district must implement it. If the team determines that the plan is not appropriate, the district should conduct new evaluations and develop a new plan. [See Protecting Students with Disabilities, Frequently Asked Questions (OCR 2016).]

(16.24) What rights do I have under Section 504 if I disagree with the District?

If you disagree with the district on any matter relating to identification, evaluation, provision of FAPE, or placement, you may request a Section 504 hearing. The regulations require that the hearing be impartial, and that parents have the opportunity to participate and be represented by counsel. [34 C.F.R. 104.36.] Each school district establishes its own Section 504 hearing procedures. The school district chooses a hearing officer to make a decision on the disagreement. OCR has stated that employees and board members of your district may not serve as hearing officers. If another district shares a contract with your district to provide services to students with disabilities, its employees are also prohibited from serving as hearing officers. [Letter to Anonymous,18 IDELR 230 (OCR 1991).]

However, if you believe your child has not been afforded her rights under Section 504 (i.e. the district has not followed Section 504 requirements and procedures), you may file a complaint with OCR.  OCR administers and enforces Section 504 protections in education.  You have 180 days from the date of alleged violation to file your complaint with OCR. Your complaint should be filed with OCR at:

U.S. Department of Education
Office for Civil Rights, Region IX Office
50 Beale Street, Suite 7200
San Francisco, CA 94105
Telephone: 415-486-5555
TDY: 877-521-2172
FAX: 415-486-5570

See Chapter 6, Information on Due Process Hearings/Compliance Procedures.