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Section 504 of the Rehabilitation Act of 1973

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Section 504 of the Rehabilitation Act of 1973

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Section 504 is a federal law designed to protect the rights of individuals with disabilities in participating in federally funded programs. This was a social movement to get this law signed and prohibit the discrimination of people with disabilities from federally funded programs. This included granting physical accommodations, as well as providing services and aids to ensure access to education, participation in extracurricular activities, and the right to be free from bullying and discrimination.
Takeaways

Provides protections through evaluation and placement procedures that ensure the least restrictive environment, as well as periodic reevalution and reevaluation before changing placements

School districts must provide nonacademic services and activities in a manner that provides students with disabilities an equal opportunity for participation

If there is a reasonable suspension that a student has a disability, schools must conduct an evaluation and to deny or delay that would be a violation

A student is not required to stop taking medicine to take an evaluation

It is considered a change in placement if a student is suspended for 10 or more days (consecutively or summatively)-this requires a manifestation meeting to determine if the behavior is a result of the disability, and therefore a violation of 504 to restrict placement of a student.

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

This document is a revised version of a document originally developed by the Chicago Office of the Office for Civil Rights (OCR) in the U.S. Department of Education (ED) to clarify the requirements of Section 504 of the Rehabilitation Act of 1973, as amended (Section 504) in the area of public elementary and secondary education. The primary purpose of these revisions is to incorporate information about the Americans with Disabilities Act Amendments Act of 2008 (Amendments Act), effective January 1, 2009, which amended the Americans with Disabilities Act of 1990 (ADA) and included a conforming amendment to the Rehabilitation Act of 1973 that affects the meaning of disability in Section 504. The Amendments Act broadens the interpretation of disability. The Amendments Act does not require ED to amend its Section 504 regulations. ED's Section 504 regulations as currently written are valid and OCR is enforcing them consistent with the Amendments Act. In addition, OCR is currently evaluating the impact of the Amendments Act on OCR's enforcement responsibilities under Section 504 and Title II of the ADA, including whether any changes in regulations, guidance, or other publications are appropriate. The revisions to this Frequently Asked Questions document do not address the effects, if any, on Section 504 and Title II of the amendments to the regulations implementing the Individuals with Disabilities Education Act (IDEA) that were published in the Federal Register at 73 Fed. Reg. 73006 (December 1, 2008).
INTRODUCTION
An important responsibility of the Office for Civil Rights (OCR) is to eliminate discrimination on the basis of disability against students with disabilities. OCR receives numerous complaints and inquiries in the area of elementary and secondary education involving Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504). Most of these concern identification of students who are protected by Section 504 and the means to obtain an appropriate education for such students.

Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education (ED). Section 504 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 . . . ."

OCR enforces Section 504 in programs and activities that receive Federal financial assistance from ED. Recipients of this Federal financial assistance include public school districts, institutions of higher education, and other state and local education agencies. The regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104.

The Section 504 regulations require a school district to provide a "free appropriate public education" (FAPE) to each qualified student with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student's individual educational needs as adequately as the needs of nondisabled students are met.

This resource document clarifies pertinent requirements of Section 504.

For additional information, please contact the Office for Civil Rights.
INTERRELATIONSHIP OF IDEA AND SECTION 504 1. What is the jurisdiction of the Office for Civil Rights (OCR), the Office of Special Education and Rehabilitative Services (OSERS) and state departments of education/instruction regarding educational services to students with disabilities?
OCR, a component of the U.S. Department of Education, enforces Section 504 of the Rehabilitation Act of 1973, as amended, (Section 504) a civil rights statute which prohibits discrimination against individuals with disabilities. OCR also enforces Title II of the Americans with Disabilities Act of 1990 (Title II), which extends this prohibition against discrimination to the full range of state and local government services, programs, and activities (including public schools) regardless of whether they receive any Federal financial assistance. The Americans with Disabilities Act Amendments Act of 2008 (Amendments Act), effective January 1, 2009, amended the Americans with Disabilities Act of 1990 (ADA) and included a conforming amendment to the Rehabilitation Act of 1973 (Rehabilitation Act) that affects the meaning of disability in Section 504. The standards adopted by the ADA were designed not to restrict the rights or remedies available under Section 504. The Title II regulations applicable to free appropriate public education issues do not provide greater protection than applicable Section 504 regulations. This guidance focuses primarily on Section 504.

Section 504 prohibits discrimination on the basis of disability in programs or activities that receive Federal financial assistance from the U.S. Department of Education. Title II prohibits discrimination on the basis of disability by state and local governments. The Office of Special Education and Rehabilitative Services (OSERS), also a component of the U.S. Department of Education, administers the Individuals with Disabilities Education Act (IDEA), a statute which funds special education programs. Each state educational agency is responsible for administering IDEA within the state and distributing the funds for special education programs. IDEA is a grant statute and attaches many specific conditions to the receipt of Federal IDEA funds. Section 504 and the ADA are antidiscrimination laws and do not provide any type of funding.

2. How does OCR get involved in disability issues within a school district?

OCR receives complaints from parents, students or advocates, conducts agency initiated compliance reviews, and provides technical assistance to school districts, parents or advocates.

3. Where can a school district, parent, or student get information on Section 504 or find out information about OCR's interpretation of Section 504 and Title II?

OCR provides technical assistance to school districts, parents, and students upon request. Additionally, regulations and publicly issued policy guidance is available on OCR's website, at http://www.ed.gov/policy/rights/guid/ocr/disability.html.
4. What services are available for students with disabilities under Section 504?
Section 504 requires recipients to provide to 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 the Section 504 regulations could consist of education in regular classrooms, education in regular classes with supplementary services, and/or special education and related services.

5. Does OCR examine individual placement or other educational decisions for students with disabilities?

Except in extraordinary circumstances, OCR does not review the result of individual placement or other educational decisions so long as the school district complies with the procedural requirements of Section 504 relating to identification and location of students with disabilities, evaluation of such students, and due process. Accordingly, OCR generally will not evaluate the content of a Section 504 plan or of an individualized education program (IEP); rather, any disagreement can be resolved through a due process hearing. The hearing would be conducted under Section 504 or the IDEA, whichever is applicable.

OCR will examine procedures by which school districts identify and evaluate students with disabilities and the procedural safeguards which those school districts provide students. OCR will also examine incidents in which students with disabilities are allegedly subjected to treatment which is different from the treatment to which similarly situated students without disabilities are subjected. Such incidents may involve the unwarranted exclusion of disabled students from educational programs and services.

6. What protections does OCR provide against retaliation?

Retaliatory acts are prohibited. A recipient is prohibited from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by Section 504.

7. Does OCR mediate complaints?

OCR does not engage in formal mediation. However, OCR may offer to facilitate mediation, referred to as "Early Complaint Resolution," to resolve a complaint filed under Section 504. This approach brings the parties together so that they may discuss possible resolution of the complaint immediately. If both parties are willing to utilize this approach, OCR will work with the parties to facilitate resolution by providing each an understanding of pertinent legal standards and possible remedies. An agreement reached between the parties is not monitored by OCR.

8. What does noncompliance with Section 504 mean?

A school district is out of compliance when it is violating any provision of the Section 504 statute or regulations.

9. What sanctions can OCR impose on a school district that is out of compliance?

OCR initially attempts to bring the school district into voluntary compliance through negotiation of a corrective action agreement. If OCR is unable to achieve voluntary compliance, OCR will initiate enforcement action. OCR may: (1) initiate administrative proceedings to terminate Department of Education financial assistance to the recipient; or (2) refer the case to the Department of Justice for judicial proceedings.

10. Who has ultimate authority to enforce Section 504?

In the educational context, OCR has been given administrative authority to enforce Section 504. Section 504 is a Federal statute that may be enforced through the Department's administrative process or through the Federal court system. In addition, a person may at any time file a private lawsuit against a school district. The Section 504 regulations do not contain a requirement that a person file a complaint with OCR and exhaust his or her administrative remedies before filing a private lawsuit.
STUDENTS PROTECTED UNDER SECTION 504
Section 504 covers qualified students with disabilities who attend schools receiving Federal financial assistance. To be protected under Section 504, a student must be determined to: (1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such an impairment; or (3) be regarded as having such an impairment. Section 504 requires that school districts provide a free appropriate public education (FAPE) to qualified students in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities.

11. 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 regulatory provision 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; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as intellectual disabilities, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulatory provision 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 regulations 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. In the Amendments Act (see FAQ 1), Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a non-exhaustive list of examples of "major bodily functions" that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The Section 504 regulatory provision, though not as comprehensive as the Amendments Act, is still valid - the Section 504 regulatory provision's list of examples of major life activities is not exclusive, and an activity or function not specifically listed in the Section 504 regulatory provision can nonetheless be a major life activity.

12. 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.

13. Does the nature of services to which a student is entitled under Section 504 differ by educational level?

Yes. Public elementary and secondary recipients 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 recipient is 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. Recipients are not required to make adjustments or provide aids or services that would result in a fundamental alteration of a recipient's program or impose an undue burden.

14. Once a student is identified as eligible for services under Section 504, is that student always entitled to such services?

Yes, as long as the student remains eligible. 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 regulatory provision 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.

15. Are current illegal users of drugs excluded from protection under Section 504?

Generally, yes. Section 504 excludes from the definition of a student with a disability, and from Section 504 protection, any student who is currently engaging in the illegal use of drugs when a covered entity acts on the basis of such use. (There are exceptions for persons in rehabilitation programs who are no longer engaging in the illegal use of drugs).

16. Are current users of alcohol excluded from protection under Section 504?

No. Section 504's definition of a student with a disability does not exclude users of alcohol. However, Section 504 allows schools to take disciplinary action against students with disabilities using drugs or alcohol to the same extent as students without disabilities.
EVALUATION
At the elementary and secondary school level, determining whether a child is a qualified disabled student under Section 504 begins with the evaluation process. Section 504 requires the use of evaluation procedures that ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials.

17. What is an appropriate evaluation under Section 504?

Recipient 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 disability. The Section 504 regulatory provision 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 factor 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.

18. How much is enough information to document that a student has a disability?

At the elementary and secondary education level, the amount of information required is determined by the multi-disciplinary 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 regulatory provision 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.

19. 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 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 regulatory provision at 34 C.F.R. 104.35.

20. May school districts consider "mitigating measures" used by a student in determining whether the student has a disability under Section 504?

No. As of January 1, 2009, school districts, in determining whether a student has a physical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using. This is a change from prior law. Before January 1, 2009, school districts had to consider a student's use of mitigating measures in determining whether that student had a physical or mental impairment that substantially limited that student in a major life activity. In the Amendments Act (see FAQ 1), however, Congress specified that the ameliorative effects of mitigating measures must not be considered in determining if a person is an individual with a disability.

Congress did not define the term "mitigating measures" but rather provided a non-exhaustive list of "mitigating measures." The mitigating measures are as follows: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.

Congress created one exception to the mitigating measures analysis. The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining if an impairment substantially limits a major life activity. "Ordinary eyeglasses or contact lenses" are lenses that are intended to fully correct visual acuity or eliminate refractive error, whereas "low-vision devices" (listed above) are devices that magnify, enhance, or otherwise augment a visual image.

21. Does OCR endorse a single formula or scale that measures substantial limitation?

No. The determination of substantial limitation must be made on a case-by-case basis with respect to each individual student. The Section 504 regulatory provision 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.

22. Are there any impairments which automatically mean that a student has a disability under Section 504?

No. An impairment in and of itself is not a disability. The impairment must substantially limit one or more major life activities in order to be considered a disability under Section 504.

23. 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 an impairment or believed to have an impairment 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. As noted in FAQ 22, the Section 504 regulations require school districts to draw upon a variety of sources in interpreting evaluation data and making placement decisions.

24. Does a medical diagnosis of an illness automatically mean a student can receive services under Section 504?

No. A medical diagnosis of an illness does not automatically mean a student can receive servicesunder Section 504. The illness must cause a substantial limitation on the student's ability to learn or another major life activity. 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.

25. How should a recipient 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.

26. What should a recipient school district do if a parent refuses to consent to an initial evaluation under the Individuals with Disabilities Education Act (IDEA), but demands a Section 504 plan for a student without further evaluation?

A school district must evaluate a student prior to providing services under Section 504. Section 504 requires informed parental permission for initial evaluations. If a parent refuses consent for an initial evaluation and a recipient school district suspects a student has a disability, the IDEA and Section 504 provide that school districts may use due process hearing procedures to seek to override the parents' denial of consent.

27. Who in the evaluation process makes the ultimate decision regarding a student's eligibility for services under Section 504?

The Section 504 regulatory provision 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.

28. Once a student is identified as eligible for services under Section 504, is there an annual or triennial review requirement? If so, what is the appropriate process to be used? Or is it appropriate to keep the same Section 504 plan in place indefinitely after a student has been identified?

Periodic re-evaluation is required. This may be conducted in accordance with the IDEA regulations, which require re-evaluation at three-year intervals (unless the parent and public agency agree that re-evaluation is unnecessary) or more frequently if conditions warrant, or if the child's parent or teacher requests a re-evaluation, but not more than once a year (unless the parent and public agency agree otherwise).

29. Is a Section 504 re-evaluation similar to an IDEA re-evaluation? How often should it be done?

Yes. Section 504 specifies that re-evaluations in accordance with the IDEA is one means of compliance with Section 504. The Section 504 regulations require that re-evaluations be conducted periodically. Section 504 also requires a school district to conduct a re-evaluation prior to a significant change of placement. OCR considers an exclusion from the educational program of more than 10 school days a significant change of placement. OCR would also consider transferring a student from one type of program to another or terminating or significantly reducing a related service a significant change in placement.

30. 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 with difficulties in school. Section 504 requires recipient school districts to refer a student for an evaluation for possible special education or related aids and services or modification to regular education if the student, because of disability, needs or is believed to need such services.

31. A student is receiving services that the school district maintains are necessary under Section 504 in order to provide the student with an appropriate education. The student's parent no longer wants the student to receive those services. If the parent wishes to withdraw the student from a Section 504 plan, what can the school district do to ensure continuation of services?

The school district may initiate a Section 504 due process hearing to resolve the dispute if the district believes the student needs the services in order to receive an appropriate education.

32. 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 another major life activity 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.

33. How should a recipient school district view 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 activities 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 (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.

In the Amendments Act (see FAQ 1), Congress clarified that an individual is not "regarded as" an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
34. Is an impairment that is episodic or in remission a disability under Section 504?
Yes, under certain circumstances. In the Amendments Act (see FAQ 1), Congress clarified that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. A student with such an impairment is entitled to a free appropriate public education under Section 504.
PLACEMENT
Once a student is identified as being eligible for regular or special education and related aids or services, a decision must be made regarding the type of services the student needs.

35. If a student is eligible 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 for a free appropriate public education is to implement an IEP.

36. 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 public elementary and secondary schools, unless a student actually has an impairment 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 appropriate public education (FAPE). This is consistent with the Amendments Act (see FAQ 1), in which Congress clarified that an individual who meets the definition of disability solely by virtue of being "regarded as" disabled is not entitled to reasonable accommodations or the reasonable modification of policies, practices or procedures. 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.

As noted in FAQ 34, in the Amendments Act (see FAQ 1), Congress clarified that an individual is not "regarded as" an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

37. What is the receiving school district's responsibility under Section 504 toward a student with a Section 504 plan who transfers from another district?

If a student with a disability transfers to a district from another school district with a Section 504 plan, the receiving district should review the plan and supporting documentation. If a group of persons at the receiving school district, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options determines that the plan is appropriate, the district is required to implement the plan. If the district determines that the plan is inappropriate, the district is to evaluate the student consistent with the Section 504 procedures at 34 C.F.R. 104.35 and determine which educational program is appropriate for the student. There is no Section 504 bar to the receiving school district honoring the previous IEP during the interim period. Information about IDEA requirements when a student transfers is available from the Office of Special Education and Rehabilitative Services at http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C

40. 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.

41. 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.
PROCEDURAL SAFEGUARDS
Public elementary and secondary schools must employ procedural safeguards regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services.

42. Must a recipient school district obtain parental consent prior to conducting an initial 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, the IDEA and Section 504 provide that districts may use due process hearing procedures to seek to override the parents' denial of consent for an initial evaluation.

43. If so, in what form is consent required?

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.

44. What can a recipient school district do if a parent withholds consent for a student to secure services under Section 504 after a student is determined eligible for services?

Section 504 neither prohibits nor requires a school district to initiate a due process hearing to override a parental refusal to consent with respect to the initial provision of special education and related services. Nonetheless, school districts should consider that IDEA no longer permits school districts to initiate a due process hearing to override a parental refusal to consent to the initial provision of services.

45. What procedural safeguards are required under Section 504?

Recipient school districts are required to establish and implement procedural safeguards that include notice, an opportunity for parents to review relevant records, an impartial hearing with opportunity for participation by the student's parents or guardian, representation by counsel and a review procedure.
46. What is a recipient 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 explaining any evaluation and placement decisions affecting their children and explaining the parents' right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing.

47. Is there a mediation requirement under Section 504?

No.
TERMINOLOGY
The following terms may be confusing and/or are frequently used incorrectly in the elementary and secondary school context.

Equal access: equal opportunity of a qualified person with a disability to participate in or benefit from educational aid, benefits, or services

Free appropriate public education (FAPE): a term used in the elementary and secondary school context; for purposes of Section 504, refers to the provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met and is based upon adherence to procedures that satisfy the Section 504 requirements pertaining to educational setting, evaluation and placement, and procedural safeguards

Placement: a term used in the elementary and secondary school context; refers to regular and/or special educational program in which a student receives educational and/or related services

Reasonable accommodation: a term used in the employment context to refer to modifications or adjustments employers make to a job application process, the work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment; this term is sometimes used incorrectly to refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments, reasonable modifications, and auxiliary aids and services in the postsecondary school context

Reasonable modifications: under a regulatory provision implementing Title II of the ADA, public entities are required to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity

Related services: a term used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic services and transportation

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special education; disabilities; disability discrimination; fape; free appropriate public education

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Frequently Asked Questions about Section 504 requirements for the education by school districts of students with disabilities

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Watauga County Schools - Section 504 Resources

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Watauga County Schools - Section 504 Resources

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This is the website for Watuaga County Schools, where I will be working for at least practicum and student teaching. This link provides access to all the forms necessary in meeting 504 guidelines, such as the initial evaluation, the 3 year evaluation, the exit plan, and more. This will be a vital source for me in the upcoming years, as I will be required to both understand and complete this documentation to ensure that student's rights under 504 are being met.

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President Obama signed this law as a reauthorization of the Elementary and Secondary Education Act (ESEA) and cleared up goals from the previous version of the law,  the No Child Left Behind (NCLB) Act. This law focuses on the goal of preparing every student for college or careers by requiring, for the first time, that all students will be held to high standards, prepping them to succeed in college and careers.
- Expands investments towards improving access to high-quality preschools
- Annual, statewide assessments implemented to measure achievement towards goals and provide that information to families, educators, and districts
- Upholds critical protections for disadvantaged students, both with disabilities and from low-performing areas
- Incentivises and grows innovations in evidence-based and place-based interventions
- Holds an expectations for accountability and action in low-performing schools

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Every Student Succeeds Act (ESSA) | U.S. Department of Education

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Using Relationships to Advocate With, For, and To Families

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Using Relationships to Advocate With, For, and To Families

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This article breaks down the relationship with families, proposing that parents are partners in our mission rather than opponents. First it explores how we can use this partnership to gain better understanding and goals for our student, as well as how to use our knowledge and expertise to help them receive their rights and the best education for their child possible. It also covers how to maintain boundaries and advocate for ourselves to parents. This is a crucial document to me, as it gives practical pointers and resources on how to do all of this, and especially going into being a first year teacher, I need to practice exercising these skills and have a source for my resources.

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Sears_Using Relationships to Advocate With, For, and To Families

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This is a vital resource for both parents and teachers concerning special education law and advocacy. It includes countless topics available to explore to answer all of the frequently asked questions about SPED policies, rights, and laws. Wrightslaw is a great resource to share with parents who are confused about their child's rights, as well as teachers and administration as we navigate the sometimes complicated field of free and appropriate education.

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Peter W.D. Wright, Esq. and Pamela Darr Wright, MA, MSW

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Wrightslaw provides free access to articles, cases, resources and training about special education law and advocacy.

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Parent And Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools

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Parent And Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools

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This is an excellent source for both parents and teachers as it summarizes and explains the key components of Section 504, as well as specifies the obligations schools are under in regards to complying with 504. It provides hypothetical situations and analyzes the compliance or noncompliance with Section 504, as well as the next steps that should be taken. This is a critical resource going into SPED, as I will want to have a reliable but accessible handbook to refer to when I'm worried that either my administration or I am not meeting all the lawful rights of a student. I fully intend on sharing this resource with parents as well, as often they do not know their specific protections and accommodations required by law.

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ParentEducator Resource Guide to Section 504 (1)

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This Parent's Guide to Special Education in North Carolina is incredibly comprehensive, structured, and understandable which is why it is a key resource I will continue to use. It is a great resource to offer to parents, as it begins with basics like IDEA and SPED terms and concepts, and develops to guide parents to approaching IEP meetings and dispute resolution. I will also use it for myself, as the frequently asked questions are incredibly helpful for certain scenarios, and I will absolutely reference this again throughout dispute resolutions, 504 eligibility, and questions about school discipline.

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The Duke Children's Law Clinic has produced a comprehensive Guide for parents of children with special education needs. The Guide explains the special education law in clear terms so that parents can learn the vocabulary, navigate the special education system, and become an effective advocate for their children. The Guide is especially geared to assist North Carolina parents.

The Guide contains 11 chapters, beginning with the broad concepts of the special education law and the important terms, then moving to specific topics. Readers can access the Guide by clicking the desired chapter on the list below, or by downloading the entire Guide to their own computer. The Frequently Asked Questions are answered orally as well as in the text. See the videos below to hear answers to common questions.
Download the guide Descarga la Guía en Español
Frequently Asked Questions

Chapter 9 of the Guide provides answers to frequently asked questions about special education in North Carolina. The questions, which are divided into six groups, are also answered in the videos below. Click the play buttons to watch each grouping in its entirety, or use the links to jump to individual answers.

Eligibility for Special Education

Special Education Services and IEPs

Least Restrictive Environment and Placement Issues

Accommodations, Modifications, Supplementary Aids and Services, and Related Services

IEP Meetings

School Discipline

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A Parents' Guide to Special Education in North Carolina | Duke University School of Law

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The Duke Children's Law Clinic has produced a comprehensive Guide for parents of children with special education needs. The Guide explains the special education law in clear terms so that parents can learn the vocabulary, navigate the special education system, and become an effective advocate for their children.

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North Carolina Exceptional Children Division Website

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North Carolina Exceptional Children Division Website

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This website contains countless resources and up-to-date information on reform and change in NC's Exceptional Children Division. It provides links to webinars, information on conferences, extended content standards, as well as contact information to every EC director in the state. I fully intend on being a current SPED educator and this resource will help me attend conferences, apply new standards and practices, as well as be able to connect to the director of my county if issues or questions arise.

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North Carolina Department of Public Instruction Exceptional Children Division website contains resources for parents, teachers, and administrators.

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Individuals with Disabilities Education Act - 1975

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Individuals with Disabilities Education Act - 1975

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The IDEA was created to ensure that every child with a disability has a right and access to a free and appropriate education that meets their unique needs and prepares them for future education, employment, and independent living. This law introduces Individualized Education Plans (IEPs), which require that educators set curriculum-based goals, accommodations, and plans for their students, and reevaluate those at least every year. This law determined that schools must be held accountable for the education of their students with disabilities, through setting goals, collecting data, and offering the least restrictive environment possible.
Takeaways

Students are entitled to an evaluation if they are suspected of having a disability that affects their education

The input of both the family and the student must be taken into account in the IEP and educational decisions

Services must be provided in the least restrictive environment when possible, with their non-disabled peers

Students are entitled to free and appropriate education, meaning they cannot be asked to pay for extra services, and education must be designed to fit their needs

Provisions are also given to birth-2 years old, as families are required to receive an Individualized Family Service Plan (IFSP), which prioritizes goals and resources, as well as sets a plan with steps to a transition to formal education

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Individuals with Disabilities Education Act

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Individuals with Disabilities Education Act (IDEA)

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The U.S. Department of Education’s Individuals with Disabilities Education Act website brings together department and grantee IDEA information and resources. The IDEA makes available a free appropriate public education to and ensures special education and related services to eligible children with disabilities.

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This is North Carolina's Every Student Succeeds Act Consolidated State Plan, it provides information on NC's initiative to fulfill the requirements of the ESSA, including data, practices, and an accountability model as well as long-term goals. It proposes organized support for schools in the margins within three levels of support, intensive support with modeling, moderate support with coaching, and general support with consultation. This resource will come in handy as I explore practices and initiatives of the school to ensure success, as well as make sure we are following the ESSA.

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American's with Disabilities Act of 1990

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American's with Disabilities Act of 1990

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The American's with Disabilities Act is a federal civil rights law that prohibits discrimination of any individual with a disability in all areas of public life; this includes jobs, schools, transportation and includes all public and private places that are open to the general public. It was enacted to provide equal opportunity for those with disabilities. There are five titles (or sections) that give specifications for each area of public life: Title I (employment), Title II (state and local government), Title III (public accommodations), Title IV (telecommunications), and Title V (misc. provisions).

- Requires public entities (including schools) to make their programs, services, and activities accessibly to those with disabilities
- Requires employers to provide "reasonable accommodations" (an accommodation required so they may do their job without causing undue hardship)
- Requires employers to provide the same opportunities to those with disabilities, such as health insurance benefits and promotion opportunities
- Requires evaluation to determine architectural barriers and effectively communicate with those with disabilities
- Businesses must make reasonable accommodations to serve those with disabilities

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New on ADA.gov

Explore the new content we've added to ADA.gov

This document discusses and explains the requirements of the ADA's integration mandate and the Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), as applied to segregated employment settings and facility-based day programs. In addition, this document provides a link to the Department's Federal Register notice, which provides more information about this guidance.

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Disability rights are civil rights. From voting to parking, the ADA is a law that protects people with disabilities in many areas of public life.

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This is a useful form not only to remind myself of the key aspects of providing FAPE, but also to provide to families. It breaks down the key components of where students may not be achieving FAPE and not getting what they need. It helps parents structure their thoughts, as well as provide helpful examples of what they can say to their child's IEP meeting if one of the areas is not being met.

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I love this resource particularly as it breaks building a collaborative relationship with parents into a systematic checklist. I will most definitely be printing this list off and taping it on my desk as it holds you explicitly accountable for each step of the process. It specifies what to do for each stage, including before coaching, during coaching, after coaching and throughout. This holds me accountable to doing the most I can to ensure successful collaboration so that the student has the best chance to succeed.

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Relationships with School Administrators: Leveraging Knowledge and Data to Self-Advocate

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Relationships with School Administrators: Leveraging Knowledge and Data to Self-Advocate

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This article provides explicit steps in how to self-advocate to school administrators by using your knowledge and expertise. This was a great reminder for me, that I am a specialized instructor arriving in the field with data and knowledge to back up my decisions and needs: it suggests to first decide communication styles, seek clarification, determine communication styles, and demonstrate expertise. I will continue to reference this article as I continue to student teaching and beyond, as I consistently struggle with self-advocacy, but this source poses many different ways I can do that clearly and professionally.

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This is a great resource for breaking down and highlighting the six principles of IDEA. This could be a good resource to share if other educators or families are interested, but the main reason I am putting it here is it is a great resource for the practicum. When I am studying for it, I will be sure to reference and note this video as these principles will show up throughout the exam, across questions and contexts.

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Praxis Special Education Practice 5354, 5543, 5545 | 6 Principles of IDEA | Kathleen Jasper

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This article is filled with differing examples of who the "parent" is in a variety of scenarios. I fully expect to be in complex situations that are confusing as to who the responsible party is. This provides guidance in dealing with that, from the do's and don'ts, to a reference list of laws by state, to a flowchart helping you figure out documents to gather at enrollment.

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This is a case study on a real due process hearing in which the parents were seeking reimbursement for the failure of the state to provide a free and appropriate education, as well as an independent evaluation. I found this helpful as it takes you through the process, both before, during, and after the hearing with the final decision. I hope not to find myself in this position, but this article serves both to familiarize myself with the process, and also helps me reflect on what could have been done to prevent the situation.

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This is a comprehensive resource on providing compensatory education in the time of corona. The question and answer format makes it easy to navigate and highlight the significant aspects of compensatory education during this unprecedented pandemic. I'm saving this information as I do not expect Covid-19 to be entirely over as I am entering the field. After witnessing less-than-ideal compensatory practices given in my field placement, I want to ensure I am providing the best education possible to my students, even if they are distanced.

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Making Legally Sound Placement Decisions 

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Making Legally Sound Placement Decisions 

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This was an incredibly significant resource to me, as placement is possibly the biggest factor determining success in our students. This article covers both the IDEA requirements in deciding placement, as well as the court-case determined standards states must use to determine the least restrictive environment. I most definitely will reference this source, both the flowchart in determining where in the continuum my student best fits, as well as the common errors to avoid.

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Making Legally Sound Placement Decisions

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This is one particularly helpful document I plan to reference often, especially in my first year of teaching. Creating an IEP is a daunting task for new teachers, and this sample provides step by step tips for each section of the IEP. This will ensure that I am meeting all the requirements and providing the best Individualized Education Plan possible for my student.

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Developing Present Level of Academic Achievement and Functional Performance Statements for IEPs

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Developing Present Level of Academic Achievement and Functional Performance Statements for IEPs

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This is another critical resource I plan to use while developing my IEPs, as I believe an accurate PLAAFP is one of the most significant factors in providing students with FAPE. I plan to print off the worksheet, which systematically takes you through each of the parts to be addressed, so that I may be held accountable in providing a comprehensive PLAAFP. There are dozens of considerations needed, and provided with this and the samples I will better be able to ensure an appropriate education for my students.

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SMART or Not? Writing Specific, Measurable IEP Goals 

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SMART or Not? Writing Specific, Measurable IEP Goals 

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This article dives in to creating goals for the IEP, as they must be Specific, Measurable, Achievable, Relevant, and Time-Bound. It also provides the acronym MAD for creating your condition, as it must include the materials, assistance, and directions necessary for students to achieve the goal. The examples and nonexamples are extremely helpful for me to structure my goals, and with the extensive information on how to create each part of a SMART goal, I will employ this resource in making the best goals possible for my students.

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Iris Module: Collecting and Analyzing Data

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Iris Module: Collecting and Analyzing Data

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Data is admittedly my least comfortable aspect of special education. This module breaks down the best practices for collecting and analyzing data, using it to inform your teaching practice. The module allows you to practice with sample scenarios and the essential data-based intervention steps. I included the graphic of these steps below to reference as I practice, ensuring that I accurately collect and assess my students' performance to make informed educational decisions.

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This module, the second in a series on intensive intervention, offers information on making data-based instructional decisions. Specifically, the resource discusses collecting and analyzing progress monitoring and diagnostic assessment data. Developed in collaboration with the National Center on Intensive Intervention at American Institutes for Research and the CEEDAR Center, this resource is designed for individuals who will be implementing intensive interventions (e.g., special education teachers, reading specialists, interventionists) (est. completion time: 3 hours). If you have not already done so, we recommend that you complete part one:

The IRIS Center Peabody College Vanderbilt University Nashville, TN 37203 iris@vanderbilt.edu. The IRIS Center is funded through a cooperative agreement with the U.S. Department of Education, Office of Special Education Programs (OSEP) Grant #H325E170001. The contents of this Website do not necessarily represent the policy of the U.S. Department of Education, and you should not assume endorsement by the Federal Government. Project Officer, Sarah Allen.

Copyright 2022 Vanderbilt University. All rights reserved.

* For refund and privacy policy information visit our Help & Support page.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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Intensive Intervention (Part 2): Collecting and Analyzing Data for Data-Based Individualization

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This module, the second in a series on intensive intervention, offers information on making data-based instructional decisions. Specifically, the resource discusses collecting and analyzing progress monitoring and diagnostic assessment data. Developed in collaboration with the National Center on Intensive Intervention at American Institutes for Research and the CEEDAR Center, this resource is designed for individuals who will be implementing intensive interventions (e.g., special education teachers, reading specialists, interventionists) (est.

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How Can I Protect Our Children's Right to Inclusion

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How Can I Protect Our Children's Right to Inclusion

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This Wrightslaw page faces the difficult but too common scenario, as parents of students without disabilities complain that their child is included with students with disabilities. Pam offers incredibly thoughtful advice to navigating this situation. She provides a list of questions for the general parents, insisting that we listen to them as they are simply concerned for their child's education and do not understand the extensive benefits inclusion has on their children as well. I will pull this out as the situation occurs in my classroom, making a list of helpful questions and reminding myself to listen.

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Victoria writes:

I am incensed! As a consultant to a preschool program, I supervise students who provide language therapy to a group of children. Some of these children have disabilities. We use innocuous books and fun activities.

Today I learned that some parents of the non-disabled children have complained and don't want their children in this group. If the group ends, our kids will not be able to have language with their non-disabled peers. I am really angry! What can I do about this?

Pam answers:

Before you go on the warpath, step into the parents' shoes and answer these questions:

What are their assumptions?

What are their beliefs?

What are their hopes? What do they want?

What are their fears?

When you answer these questions, you will be less incensed. You may also have the key to solving the problem.
If I wanted to play devil's advocate, I might say:

"I just learned that my child was placed in a group with disabled children. The people running this group are students - they say they are using "innocuous books" and "fun activities. Since they are students, I assume they are not very knowledgeable."

" I believe my child is a young genius. I hope he will be the next Bill Gates."

"I am afraid that you want to use my child in a social engineering project that was probably dreamed up by Hillary Clinton and her cohorts."

" I do not want my child to read "innocuous books." I do not want my child to spend school time in "fun activities."

" I want my child will receive a more rigorous education than she/he would receive in public school - that is why I am paying to send my child to this expensive private school."

If I wanted my child to read "innocuous books" and engage in "fun activities" I would send my child to public school."

" I am AFRAID of the impact these disabled children will have on my child."

Victoria, do not allow yourself to be a lightning rod for conflict.

If the parents take a position and you take a position, this situation will not end well.

Talk to these parents. Ask questions and listen - they will share their fears and concerns with you. Find answers to the questions I posed.

If you take these steps, you may be able to solve the problem, instead of taking a position which will escalate conflict and cause unnecessary pain on all sides.

In your job, you teach others. This situation gives you a chance to teach your students about the power of emotions and beliefs. People who work in education need to understand and appreciate these emotions. Good luck!

Update from Victoria:

Your advice about not reacting immediately was excellent. One of the reasons I work here is because I realized that I could have a larger impact in a college training program, both with students and in the community.

Initially I saw my "soapbox" as the area of autism and Asperger's, but I have gone beyond this into inclusion issues in general. I think those of us on this side of the fence have a responsibility to educate others. But we must remember to start where the "educatees" are.

Pam responds:

From my perspective (and I'm a therapist, not an attorney), your dilemma may be more common as large numbers of children with disabilities move into regular ed classes.

Parents are likely to divide into groups, according to what they see as their children's interests.

What happens when "regular ed" parents are told that their kids cannot receive help because "We have to spend so much money on special ed kids?" Many regular ed parents resent special ed kids - at best.

"Special ed" parents are divided into different camps and often do not see eye to eye.

One camp wants their children to be fully included or mainstreamed. These children often have more severe disabilities - i.e. mental retardation, autism. These parents hope that if their child is included, he/she is more likely to be accepted by nondisabled kids (and less likely to be victimized because many people are afraid of those who are different.) These parents also want their children to learn social skills. They assume / hope / believe this learning is more likely to occur in a general ed environment (although I have seen no evidence that "incidental learning" of social skills works for most kids with disabilities).

The other camp includes parents of kids with "high incidence" disabilities (i.e., learning disabilities, speech language problems, ADD/ADHD). Most of these parents want their children to learn academic skills and receive remediation (intensive educational services in very small homogeneous groups or one-to-one). Since children with disabilities are less likely to master academic skills in large general ed classes, these parents are less concerned about inclusion and more concerned about learning and educational benefit.

Personal Experiences Affect Beliefs, Hopes, Fears

You mention that your child has Asperger's Sydrome. No doubt this experience has affected your beliefs, hopes, and fears about children with disabilities, especially children who are similar to your child.

Parents of nondisabled children are the same. Their beliefs, hopes, and fears for their children l cause them to take positions and advocate for what they believe to be their children's interests.

If these parents believe that disabled children are getting a bigger piece of the pie, and that their children are being harmed, they will try to change the rules of the game.

What's the answer?

We must remember that as parents (of children with and without disabilities), we have many things in common.

We want our children to learn. We want our children to be accepted by others. We want our children to be treated fairly.

Sometimes (or often) we are overwhelmed by our responsibilities as parents.

We are emotional. We are afraid. We need help.

We must ask questions and listen to the answers.

We must resist the impulse to blame, judge and find fault.

We must work to keep lines of communication open.

Good luck!

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wrightslaw special education law iep autism adhd needs learning disabilities advocacy 504 resources add dyslexia needs no child left behind act regulations services nclb idea ld peter pamela wright

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Advocacy - FAQs - How Can I Protect Our Children's Rights to Inclusion? - Wrightslaw

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Victoria writes: I am incensed! As a consultant to a preschool program, I supervise students who provide language therapy to a group of children. Some of these children have disabilities. We use innocuous books and fun activities. Today I learned that some parents of the non-disabled children have complained and don't want their children in this group.