A child who may have learning problems still may not be found eligible for special education services because she does not fit into one of the special education eligibility categories and/or because her learning needs are not intensive enough to qualify her for special education.  (This may often be the case for children identified as having hyperactivity, dyslexia, Pervasive Developmental Disorder, Tourette Syndrome, Obsessive Compulsive Disorder, Conduct Disorder, Oppositional Defiant Disorder, or ADD/ADHD.   Of these conditions, only ADD/ADHD and Tourette Syndrome are mentioned specifically in the special education eligibility criteria.

Such a child, however, may be eligible for special services and program modifications under a federal antidiscrimination law designed to reasonably accommodate the student’s condition so that her needs are met as adequately as the needs of non-disabled students.  The law is commonly known as Section 504 of the Rehabilitation Act of 1973.  [29 U.S.C. Sec. 794; implementing regulations at 34 C.F.R. 104.1 and following.]

Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as ADD/ADHD are frequently recognized as Section 504 qualifying conditions).  Rather, Section 504 protections are available to students who can be regarded as “disabled” in a functional sense.  Such students:

1. Have a physical or mental impairment which substantially limits a major life activity (such as learning and attention);
2. Have a record of such an impairment; or
3. Are regarded as having such an impairment.

[See 34 C.F.R. Sec 104.3(j).]

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.

The Office for Civil Rights (OCR) administers and enforces Section 504 protections in education.  If you believe your child has not been afforded her rights under Section 504, you may file a complaint with the Office for Civil Rights at:

San Francisco Office
Office for Civil Rights
U.S. Department of Education
50 United Nations Plaza
San Francisco, CA 94102
Telephone: 415-486-5555
Fax: 415-486-5570; TDD: 800-877-8339

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

When you are referring your child for special education eligibility, your referral letter can include a request that your child also be assessed under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) to determine whether your child might be eligible for services under that law.  If eligible, the school district may be required to provide reasonable accommodations and/or services, including special education services, to allow your child to benefit from school like children without disabilities. These accommodations and/or services may be important if your child does not qualify for special education/IEP, or if such accommodations and/or services are, for some reason, not provided under special education.  [OCR Memorandum, Letter to Veir, 19 IDELR 876 (April 29, 1993).]