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Section 504 in the Public Schools: How Does It Differ from the IDEA? Overview Three laws: Section 504 of the Rehabilitation Act of 1973 ("Section 504"), Title II of the Americans with Disabilities Act ("ADA"), and the Individuals with Disabilities Education Act ("IDEA") provide procedural and substantive protection for students with disabilities. Section 504 and the ADA are federal antidiscrimination laws that prohibit discrimination based on disability and are applicable in public schools. However, the ADA also applies to non-public schools. Section 504 was passed in 1973, as an amendment to the Federal Rehabilitation Act, as Congress' first response to try to correct unconstitutional discrimination against disabled students in public schools. The IDEA, passed in 1975, includes provisions granting funds for special education implementation and ensuring that all states provide procedural rights and entitlements to eligible individuals and their parents or guardians. There are important differences between the legal requirements of Section 504 and the requirements of IDEA. For instance, the assurance of a free and appropriate public education ("FAPE") under IDEA applies only to students who, because of their disability, need special education and related services. Section 504's protections, on the other hand, include all students covered by IDEA as well as students whose disabilities substantially impair one or more major life activities. A student with diabetes or with ADHD in need of just accommodations within the classroom may not be covered under IDEA but would likely be covered under Section 504. Most protected individuals under 504 are entitled to a "free appropriate public education" in much the same way that students with qualifying disabilities are entitled to FAPE under IDEA. Eligibility Unlike the IDEA which prescribes specific eligibility definitions and criteria, students are eligible for Section 504 protection if they have a physical or mental impairment that substantially limits one or more major life activities or if they have a record of or are regarded as having such an impairment. The term "substantially limits" means when the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people. Section 504 is based on a three-pronged evaluation.
Procedural Requirements: There are many procedural protections in Section 504, a few of the more significant requirements require the school district:
The Plan The regulations for Section 504 do require school districts to provide an individualized program under which an eligible student receives FAPE, however, it does not specify the format of that plan, as do the regulations for the IDEA. Although not recommended, courts and OCR have held that Section 504 permits informal or even verbal accommodation plans. M.H. v. Montana High Sch. Ass'n, 25 IDELR 42 (Mont. 1996). However, OCR does require an evaluation and a placement decision by a group of knowledgeable persons. Culver City (CA) Unified Sch. Dist.,16 IDELR 673 (OCR 1990). School districts should look to OCR guidance and case law to provide some guidance for what plans must contain to be compliant with the law. The following are some basic requirements: 1. Nature of the student's disability and the major life activity it. Usually this is learning; however, it is not limited to that. It's the job of the team that evaluates the student to determine if the disability substantially limits a major life activity. 2. The basis for determining the disability. Section 504, like the IDEA, requires schools to meet certain evaluation procedures, which must be documented in the accommodation plan. Appendix A, below, provides some examples. 3. The educational impact of the disability. The multidisciplinary team must describe how the disability affects the child's educational performance so proper accommodations can be prescribed. 4. The necessary accommodations. Section 504's FAPE standard requires schools to provide services that are designed to meet the individual needs of individuals with disabilities as they meet the needs of individuals without disabilities (non-discrimination) . This standard differs from the IDEA's standard, thus, it is possible in some cases for the required services to also differ from those mandated under the IDEA. Some sample accommodations are available in Appendix B. 5. Placement in the least restrictive environment. The LRE requirement in Section 504 is similar to the LRE mandate of the IDEA. Generally Section 504 plans will contain less components than an IEP. Most education experts do not recommend following IEP procedures for students who are ineligible for IDEA services. A sample Section 504 plan is provided in Appendix C, below. OCR has stated that lack of specificity in a written Section 504 plan is excusable where the district has provided the required accommodations and the district required flexibility to enable it to modify the student's services according to her needs during the course of year. Wayne Cent. Sch. Dist., 43 IDELR 257 (OCR 2005). Similarly, in Cascade Sch. Dist., 37 IDELR 300 (SEA OR 2002), parents of a child with a peanut-allergy argued that a 504 plan was not sufficiently detailed. An administrative law judge decided the district offered a 504 plan that provided accommodations and services that allowed the student to safely access school as adequately as the district allowed for safe access to students without disabilities, and that the 504 plan was designed to meet her individual needs as adequately as the needs of students without disabilities are met. Services Because they are generally accommodations and modifications, not specially designed instruction, services for children with Section 504 plans are most often delivered in the regular education classroom. See Appendix B below, for a list of common Section 504 services. Legal Remedies for Violations of Section 504 There is a lot less litigation under Section 504 than under the Individuals with Disabilities Education Act. A hearing procedure is available, but it is much less formal than under the IDEA. An impartial hearing officer is appointed by the school district. This person must have some knowledge of 504, although a law degree is not required. The hearing officer must not be an employee of the school district. The hearing must be at least tape-recorded, but transcripts are not required. The formal question and answer format of an IDEA hearing is not required, both parties make informal presentations instead. Legal objections to evidence or testimony will not be recognized; the hearing officer merely gathers all the evidence he or she feels is required to make a decision. The hearing officer must issue a written decision with findings of fact and conclusions of law. The remedies available under the IDEA are not necessarily available under Section 504. The following are available remedies under the IDEA:
Appendix A The following list shows what a typical student can do. If a given student cannot do one or more of these tasks, the student may be eligible for Section 504 protections. ____ Get to school the same way that typical children their age get to school ____ Arrive at school on time ____ Stay outside on the school grounds, without unusual supervision, until the bell rings ____ Go to the right room when the bell rings ____ Interact with other students during the day in socially appropriate ways ____ Understand and follow school rules ____ Respond appropriately to instructions from school personnel ____ Ask for help when needed ____ Receive information both orally and in writing ____ Communicate effectively through speech or writing to teachers and classmates ____ Participate in class as required by the teacher ____ Work independently ____ Work in groups ____ Not disrupt the class ____ Handle the volume of material introduced each day in the regular curriculum ____ Handle the rate at which material in introduced in the regular curriculum ____ Read at grade level ____ Write at grade level ____ Not require the use of assistive technology during the day ____ Take tests without modifications such as extra time, oral administration taking the test in a quiet place ____ Change classes when the bell rings ____ Go to the restroom, if needed, during the class changes and without assistance ____ Get the next period's classroom on time ____ Sit in the correct assigned seat in each class ____ Use a school locker and get the right materials ____ Each lunch with the regular students ____ Participate in regular PE ____ Participate in recess or free time with little or no supervision ____ Not create a safety concern ____ Attend general school meetings ____ Copy down the homework assignments correctly ____ Do the required homework each night ____ Take the homework and necessary materials back to school ____ Turn the homework in on time ____ Attend school each day ____ Stay for the whole day ____ Have only a few absences ____ Make up any work that is missed ____ Stay after school and participate in extracurricular activities ____ Pass each year and advance to the next grade ____ Return to school each Fall ____ Take all required exit exams or other tests ____ Be on schedule to graduate with a regular diploma after 12 years of instruction ____ Be prepared to live independently after graduation ____ Be prepared to be employed after graduation ____ Be able to get access to recreation and leisure activities in your community after graduation ____ Be able to get access to further education and training to upgrade their skills after graduation Appendix B Services that should be considered available when writing a Section 504 Plan include: ____ Providing a structured learning environment ____ Repeating and simplifying instructions about in-class assignments ____ Repeating and simplifying instructions about homework assignments ____ Supplementing verbal instructions with visual instructions ____ Using behavioral management techniques ____ Adjusting class schedules ____ Modifying test delivery ____ Using tape recorders ____ Computer aided instruction ____ Other audio-visual equipment ____ Selecting modified textbooks ____ Selecting modified workbooks ____ Tailoring homework assignments consultation with special education ____ Reducing class size ____ Use of one-on-one tutorials ____ Use of classroom aides ____ Use of classroom note takers ____ Involvement of services coordinator to oversee implementation of special programs and services ____ Possible modification of nonacademic time such as lunch room ____ Possible modification of nonacademic time such as recess ____ Possible modification of nonacademic time such as physical education Appendix C - Sample Section 504 Conference Summary SECTION 504 CONFERENCE SUMMARY STUDENT: __________________________________ DATE: __________________ SCHOOL: ___________________________________ GRADE: _________________ CONFERENCE PARTICIPANTS (Title and Name) _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ PURPOSE OF CONFERENCE: To consider possible eligibility and provision for services under section 504 of the Rehabilitation Act of 1973 To review eligibility and services being provided for under Section 504 of the Rehabilitation Act of 19783 Other: (Specify) ________________________________________________________ I. IDENTIFY EDUCATIONAL CONCERN(S): II. SUMMARY OF EVALUATION (if applicable) Identify assessment procedure(s) and results: III. DETERMINATION OF ELIGIBILITY (if applicable) Consider and specify if a mental or physical condition impacts significantly on one or more of the following: care of oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, an/or learning, in the school setting. Condition/Life Function Description of the Significant Impact Within the School Setting IV. APPROPRIATE SERVICES/ACCOMMODATIONS TO BE PROVIDED (if applicable) Describe each accommodation/service to be provided by the district for areas of significant impact listed in Section II. V. SUMMARY OF OTHER POINTS OF DISCUSSION/RECOMMENDATIONS (if applicable) You have the right to review your child's records and to request a hearing if you disagree with the district's identification, evaluation, provision of services, or change or termination of services under Section 504. If you desire a review of the records or wish to initiate a hearing, please contact the school principal. You have the right to legal representation, to review your child's records and to request a hearing if you disagree with the district's identification, evaluation, provision of services, or change or termination of services under Section 504. If you desire a review of the records or wish to initiate a hearing, please contact the school principal I have received a copy of the 504 Conference Summary and an explanation of the rights explained above. _____________________________________________________________________ Signature of Parent/Guardian Date |
