Section 504: What Teachers Need to Know

Tom E. C. Smith
Intervention In School And Clinic

Vol. 37, No. 5, May 2002
pp. 259-266
Reprinted with permission.
 

Section 504 of the Rehabilitation Act of 1973 is civil rights legislation that is beginning to have a major impact on public schools. Schools have recently begun to pay more attention to this law because parents are beginning to request services for children not eligible under the Individuals with Disabilities Education Act. Schools must ensure that students who are protected under Section 504 have equal access to a free, appropriate public education and to extracurricular activities. To ensure this, schools must take several specific steps. This article presents an overview of the requirements of 504 and provides schools with actions that can be taken to ensure compliance.

In addition to the Individuals with Disabilities Education Act (IDEA) of 1990, another federal legislative act that is beginning to have a major impact on public schools is Section 504 of the Rehabilitation Act of 1973. For more than 20 years, Section 504 was virtually ignored by many public schools because many administrators assumed that meeting the needs of students with disabilities under P. L. 94-142 (now IDEA) was all that was required. Recently, the role played by Section 504 in schools has increased substantially. As parents and advocates for children with disabilities learn more about Section 504, schools are having to respond to requests for protections and services under this law.

Section 504 is civil rights legislation; it prohibits discrimination against individuals with disabilities, as defined in the act, and is applied to entities that receive federal funding, including public schools (Smith & Patton, 1998; Smith, Polloway, Patton, & Dowdy, 2001). Section 504 requires actions that attempt to level the playing field for individuals with disabilities; its intent is to create an equal opportunity for individuals with disabilities to be successful:

No otherwise qualified individual with a disability ... 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.

Schools thus must provide to students with disabilities equal opportunities "to obtain the same result, to gain the same benefit, or to reach the same level of achievement" as students without disabilities (Jacob-Timm & Hartshorne, 1994, p. 29).

Eligibility for Section 504 Services and Protections

Eligibility for protections and services under Section 504 is based on the definition of disability and is not the same as eligibility under IDEA. Key points to remember when determining eligibility under 504 include the following:

  • Eligibility is based on the definition of disability.
  • Eligibility is not age restricted (as with IDEA) it covers individuals from birth to death.
  • Eligibility is not related to specific categories of disabilities (as with IDEA).
  • Eligibility is based on the functional impact of a physical or mental impairment, not just the need for special education.

Otherwise Qualified

In order for a student with a disability to be covered under Section 504, it must be determined that the student is otherwise qualified. In other words, he or she must be qualified to do something before the presence of a disability can be a factor in discrimination: If the student wants to participate in some activity that he or she is not otherwise qualified to do, not allowing him or her to participate would not be considered discrimination. For example, a 16- year-old boy with Attention-Deficit/ Hyperactivity Disorder (ADHD) tries out for the basketball team but cannot dribble, shoot, or pass. The coach therefore does not allow the boy to play on the team. This is not discrimination under Section 504 because the boy was not otherwise qualified to be on the team.

Definition of Disability

Unlike IDEA, which uses a categorical approach to determining eligibility, Section 504 uses a noncategorical, functional model. As a result, eligibility is significantly broader. Under 504, a person is considered to have a disability if that person (29 U.S.C. 706(8)) "(a) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (b) has a record of such an impairment, or (c) is regarded as having such an impairment."

A physical or mental impairment is defined in the following ways:

1. 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;

2. any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Section 2 is similar to the categorical definition of disability found in IDEA; however, Section 1, although it includes some of the categories found in IDEA, goes well beyond those specific areas in defining disability.

The second part of the definition relates to the impact of the disability or condition on a major life activity. Major life activities include a wide variety of daily activities performed routinely by individuals. The sidebar "Major Life Activities" lists many recognized ones. For many school-age children, the affected major life activity is learning. This is very similar to the IDEA requirement that the disability results in a need for special education. Learning does not have to be the major life activity affected in order for an individual to be eligible for protections and services under Section 504, however.

In addition to having a physical or mental impairment, individuals are covered under 504 if they have a record of having such an impairment or if they are simply regarded as having such an impairment. These two categories are generally not the focus for cases involving school -age children; they are more likely to come into play in employment or community situations for adults (Hartwig, 2000). School personnel must not, however, discriminate against a student because of a record of a disability or being regarded as having a disability.

Major Life Activities

  • Walking
  • Talking
  • Seeing
  • Hearing
  • Speaking
  • Breathing
  • Learning
  • Working
  • Performing Manual Tasks
  • Sitting (a)
  • Reaching (a)
  • Stooping (a)
  • Procreating (a)

(a) Added as a result of court cases.

Determining Substantial Limitation

The determination of whether or not a disability substantially limits a major life activity is subjective because 504 does not provide any operational criteria for the term (Smith & Patton, 1998). School personnel therefore must use their collective, professional judgment to make this determination. Section 504 defines substantially limits as

- being unable to perform a major life activity that the average person in the general population can perform or

- being significantly restricted as to the condition, manner, or duration under which one can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same activity.

The standard that should be used in determining substantial limitation thus is average performance in the general population. For example, if a student with ADHD is performing as well as average children in his or her grade level, and significant extra work is not required to achieve this level, it is unlikely that there is a substantial limitation in learning. This standard applies regardless of the intellectual ability of the student. For example, a child with an IQ of 140 who is achieving as well as average children does not have a substantial limitation in learning, which may be difficult for parents to understand.

When determining if the substantial limits requirement is met, school personnel should consider the impairment's nature and severity, duration, and any long-term impacts (Smith & Patton, 1998). Schools should remember that simply because a student is considered for 504 services does not mean he or she will be determined to be eligible. Likewise, just because a student is determined to have a disability does not automatically result in eligibility for 504 services and protections; a substantial limitation must result from the impairment.

Individuals Covered Under 504

Because the definition of disability that determines eligibility for protections and services under 504 is significantly different from the definition used in IDEA, different individuals are covered. Some likely examples are the following:

  • students with learning disabilities whose discrepancy between intellectual ability and achievement is not significant enough for IDEA eligibility;
  • students with low IQ scores but who do not qualify as having mental retardation;
  • students with orthopedic problems who do not need special education;
  • students with health problems, such as asthma, epilepsy, and cardiac difficulties; and
  • students with communicable diseases, such as AIDS or hepatitis.

Because the disability definition and eligibility requirements under IDEA are more restrictive than those used for 504, all children eligible for services under IDEA are eligible for protections under Section 504. The reverse is not true, however.

Requirements of Section 504

For school-age children who have been found to be eligible for 504 protections and services, there are two primary requirements: nondiscrimination and the provision of a free, appropriate public education. Schools must also provide procedural safeguards for these children and their families, such as the right to notice and the right to a due process hearing (Allen & Galli, 2001).

Students with disabilities who are otherwise qualified should be allowed to participate in all activities that are available for students without disabilities (Office of Civil Rights [OCR], 1998). These include participation in the same academic curriculum, as well as nonacademic extracurricular activities (Pitasky, 2000). Students protected by Section 504 must have equal access to health services, recreational activities, athletics, student employment, clubs, specific courses, and field trips. Some of these extracurricular activities become issues for students served under IDEA as well.

In general, schools fulfill numerous responsibilities to meet the requirements of Section 504. For the most part, these actions are based on common sense and on treating individuals with disabilities fairly. If schools approach the implementation of Section 504 using the guidelines provided by OCR, then most instances of potential discrimination can be dealt with simply and without a great deal of expense. OCR (1989b) discussed specific Section 504 requirements for schools, which are listed in the sidebar.


Free, Appropriate Public Education

As with IDEA, Section 504 requires that schools provide students with disabilities with a free, appropriate public education (FAPE; Turnbull & Turnbull, 2000). Section 504 (104.33(b)) defines FAPE as the provision of general or special education and related aids and services that are

1. designed to meet the individual educational needs of persons with disabilities as well as the needs of a nondisabled person and

2. based on adherence to procedural safeguards outlined in the law.

School Requirements for Section 504

  • Annually identify and locate all children with disabilities who are unserved.
  • Provide a "free, appropriate public education" to each student with a disability, regardless of the nature or severity of the disability. This means providing general or special education and related aids and services designed to meet the individual educational needs of persons with disabilities as adequately as the needs of nondisabled persons are met.
  • Ensure that each student with disabilities is educated with nondisabled students to the maximum extent appropriate.
  • Establish nondiscriminatory evaluation and placement procedures to avoid the inappropriate education that may result from the misclassification or misplacement of students.
  • Establish procedural safeguards to enable parents and guardians to participate meaningfully in decisions regarding the evaluation and placement of their children.
  • Afford children with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. (Office for Civil Rights, Department of Education, 1989a, p. 8)

 

 

 

 

 

 

 

 

 

 

 

 

Meeting the needs of students with disabilities as well as the needs of students without disabilities is a very broadly stated requirement. It can include a variety of services, such as education in general education classes, education in general education classes with supplementary aids, or special education and related services outside the general education setting (Jacob-Timm & Hartshorne, 1994). The specific actions that schools must take in order to comply with the FAPE requirement will vary with each child. In most situations, simple, inexpensive, commonsense accommodations and modifications are sufficient.

Section 504 also mandates that related services should -be provided for students with disabilities if these services are required to meet students' educational needs and the educational needs of other students are met. Unlike IDEA, which requires schools to provide related services only to assist a student in benefiting from special education, under Section 504, related services can be provided to children who do not receive any other special education services or interventions. The key to determining the need for a related service is if it is required for the student to be able to access the educational program.

Steps in the 504 FAPE Process

  • Referral-Schools are required to refer students who they think would be eligible for Section 504 services. A committee of knowledgeable individuals will make that determination. Parents or school personnel may make referrals.
  • Evaluation-if the committee believes that the child would probably be eligible for Section 504 services, an evaluation of the area of suspected need must be completed. This evaluation must use nondiscriminatory procedures.
  • Eligibility Determination-After the evaluation, the committee must determine if the student has a physical or mental impairment that substantially limits a major life activity.
  • Accommodation Plan Development if the committee determines that the student is eligible under Section 504, an accommodation plan must be developed.
  • Periodic Reevaluation-The school must periodically reevaluate the student to determine continuing eligibility under Section 504.

Like IDEA, Section 504 requires that students with disabilities be educated with their nondisabled peers, to the maximum extent appropriate, while meeting the needs of the students with disabilities. This mandate also applies to extracurricular activities. It would be inappropriate, for example, to send a student with a mobility impairment on a field trip on a wheelchair-accessible bus by him - or herself.

Offering accommodations for students is one way schools can provide an appropriate education. These accommodations should be determined on an individual basis. Although schools do not have to develop formal Individualized Education Programs for students served under 504, they do have to develop individual plans for them (Wenkart, 2000).

Services in Public Schools

Students with disabilities who are protected under Section 504 but are not eligible for IDEA services must be afforded a FAPE through a designated process involving referral, evaluation, programming planning, placement, and reevaluation. Schools should establish policies that spell out the steps that must be taken to provide these services. Schools can use the same process they use with IDEA, or they can develop a set of specific procedures. (See the sidebar for an outline.)

Eligibility Determination and Program Development

School personnel should use all available assessment information to determine which students are eligible under Section 504. The eligibility decision, as well as decisions about accommodations, should be made by a group of professionals and other adults who know the child, the assessment procedures, and the different placement options.

As noted previously, unlike IDEA, eligibility determination under Section 504 is not based on a categorical approach to disabilities, but rather on whether there is a substantial limitation to a major life activity resulting from a physical or mental impairment. This is a subjective professional judgment. Although some guidelines for facilitating this determination are available, the ultimate decision falls to the professionals. Some educators may be uncomfortable making these decisions without specific guidelines, regulations, or norm-referenced test scores.

Evaluation Data

Nature of Mental or Physical Impairment: ____________________________________

Major Life Activity

School-Related Description of Impairment (1)

Source of Information (2)

Severity

.

mild

severe

1

2

3

4

5

Duration

.

short-term

long-term

1

2

3

4

5

Substantial
Limitation?
(3)

.

Yes

No

caring for oneself

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

performing Manual Tasks

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

walking

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

seeing

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

hearing

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

speaking

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

breathing

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

learning

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

working

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

other (4)

 

 

1

2

3

4

5

1

2

3

4

5

Yes

No

.

(1) description of educational-related behaviors associated with specific major life activities affected by mental or physical condition
(2) listing of persons and/or evaluation techniques used for identifying behaviors associated with impairment
(3) based on consideration of the nature, severity, and duration of the impairment
(4) other major life activities might include bending, stooping, reaching

Figure 1. Section 504 eligibility determination form.
Note. From Smith & Patton (1998), Section 504 and Public schools (p.35).
Austin, TX: PRO-ED. Used with permission

 

When determining if there is a substantial limitation to a major life activity, school personnel should consider the duration and severity of the impairment. Smith and Patton (1998) have developed a process for assisting school personnel in making this decision. This procedure uses a Likert-type scale to determine the degree of severity and duration for various functional limitations (see Figure 1). Using such a process can greatly facilitate arriving at a defensible eligibility decision. What school personnel must remember is that the primary determining factor is their professional judgment about the child's functioning, not test scores, numerical indices, discrepancy formulas, and other quantitative data.

Once eligibility has been determined, an individual plan must be developed. Schools should have 504 accommodation plans ready for teachers to use. These plans should be simple and easy to complete and should also include the important information that will enable school personnel to implement the necessary accommodations. (A sample 504 plan is included in Figure 2.)

Accommodations and Modifications

Accommodations and modifications are often necessary. The vast majority of these accommodations and modifications will occur in general education classrooms. Examples include accommodations in seating arrangements, testing modifications, homework modifications, the use of readers or taped materials, and accommodations in attendance policies.

For the most part, accommodations for this group of students are inexpensive, commonsense modifications that enable students to have equal access to educational and extracurricular activities. They are intended to "level the playing field" so that students with disabilities have an equal opportunity to be successful. Teachers have used these types of accommodations and modifications for years. Under Section 504, documentation regarding provision of these accommodations must be maintained.

Simple Guidelines

Section 504 is good legislation. It is designed to protect the civil rights of individuals with disabilities, regardless of their age and whether or not the major life activity that is affected is learning. In implementing Section 504, school personnel should keep some simple guidelines, described in the sidebar, in mind. If schools follow these guidelines, they should have no difficulties with this law.


 

Section 504 Accommodation Plan

Name: Jake Smith
School/Class: 11th grade-Central High School
Teacher:
Pratt-History, Jordan-Literature Date: 9/29/97
General Strengths: Jake is
a bright student, he wants to learn and make good grades. He is very ambitious and wants to go to college become an engineer.
General Weaknesses: Jake has been diagnosed with ADHD. His attention span is very short and he is easily distracted. He frequently gets out of his seat and walks around the room.

Specific Accommodations:
Accommodation #1

Class: History
Accommodation(s):
Jake will be given extra time to complete his assignments. He will be given assignments divided into shorter objectives so that his progress can be checked sooner.
Person Responsible for Accommodation #1: Mr. Pratt-teacher

Accommodation #2

Class:
History
Accommodation(s):
Jake will sit at the front of the class.
Person Responsible for Accommodation #2: Mr. Pratt-teacher

Accommodation #3

Class:
Literature Accommodation(s): Jake will work with selected other students in cooperative learning arrangements.
Person Responsible for Accommodation #3: Ms. Jordan-teacher

Accommodation #4

Class:
Literature Accommodation(s): An assignment notebook will be sent home each day with specific assignments noted. Parents will sign the assignment notebook daily and return it to school.
Person Responsible for Accommodation #4: Jordan-teacher

Accommodation #5

Class:
All classes Accommodation(s): A behavior management plan will be developed and implemented for Jake for the entire day. The plan will include time for Jake to take Ritalin and will focus on positive reinforcement.
Person Responsible for Accommodation #5: Ms. Baker-asst. prin.

General Comments:

Jake's plan will be reviewed at the end of the fall term to ensure that it is meeting his needs.

Individuals Participating in Development of Accommodation Plan:

William Pratt-teacher Fred Haynes-504 Coor.
Bonita Jordan-teacher Hank Smith-father
Mary Baker-asst. Prin.

Figure 2. Section 504 accommodation plan.
Note. From Smith & Patton (1998), Section 504 and public schools (p. 51).
Austin, TX PRO-ED. Used with permission.

 

 

 

 

 

 

ABOUT THE AUTHOR

Tom E. C.
Smith, EdD, is a professor in the Department of Educational Leadership at the University of Arkansas at Little Rock. He served three terms on the President's Committee on Mental Retardation and is the current executive director of the Division on Mental Retardation and Developmental Disabilities of CEC. His primary research interests focus on legal issues and disabilities. Address: Tom E. C. Smith, Dept. of Educational Leadership, UALR, 2801 S. University, Little Rock, AR 72204; e-mail: Tesmith@ualr.edu

REFERENCES

Allen, G. R., & Galli, L. (2001). Finding your way through an OCR complaint. Section 504 Compliance Advisor, 4, 1.

Hartwig, E. (2000). Not every ADD student is covered under Section 504. Section 504 Compliance Advisor, 4, 4.

Individuals with Disabilities Education Act of 1990, 20 U.S.C. 1400 et seq.

Jacob-Timm, S., & Hartshorne, T. S. (1994). Section 504 and school psychology. Psychology in the Schools, 31, 26-39. _

Office for Civil Rights. (198 8). Free appropriate public education for students with handicaps. - Requirements under Section 504 of the Rehabilitation Act of 1973. Washington, DC: Author.

Office for Civil Rights. (1 989a). The civil rights of students with hidden disabilities under Section 504 of the Rehabilitation Act of 1973. Washington, DC: Author.

Office for Civil Rights. (1 989b). Student placement in elementary and secondary schools and Section 504. Washington, DC: Author.

Pitasky, V. M. (2000). Extracurriculars top the list of legal trends for Section 504, ADA. Section 504 Compliance Advisor, 4, 1.

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.

Smith, T. E. C., & Patton, J. R. (199 8). Section 504 and public schools: A practical guide. Austin, TX: PRO-ED.

Smith, T. E. C., Polloway, E. A., Patton, J. R., & Dowdy, C. A. (2 00 1). Teaching students with special needs in inclusive settings (3rd ed.). Boston: Allyn & Bacon.

Turnbull, H. R., & Turnbull, A. (2 000). Free appropriate public education (6th ed.). Denver: Love.

Wenkart, R. (2000). Comparing the IDEA with Section 504. Special Education Law Update, 9, 1-3.

Posted May 14, 2002