When is a student eligible for a Section 504 plan?
Updated: Jan 26, 2022
Do you feel confused about Section 504 plans? You’re not alone!
Section 504 of the Rehabilitation Act prohibits schools and other organizations from discriminating against individuals with disabilities. In the school setting, Section 504 requires that students with disabilities are free from discrimination and have equal access to all programs. In the kindergarten through 12th grade setting, a Section 504 "plan," documents accommodations and supports a disabled student will receive to ensure equal access to their learning and school environment.
One thing that creates confusion about Section 504 is vague guidance online. I’ve seen websites that say a student is eligible for a Section 504 plan if they merely “learn or think differently,” (not accurate), and articles that say a student must be substantially limited in the specific activity of “learning,” in order to be eligible for a Section 504 plan (also not accurate).
Some disabilities create an obvious need for a Section 504 plan. Others, such as certain mental health issues, require a highly fact-specific consideration about what a student needs to equally access their education. Unfortunately, parents and schools continue to end up in court battles about Section 504 requirements. The cases vary in their outcomes depending on the facts of the case. This complicated legal picture adds to continued confusion about day to day application of Section 504.
The “Q” and “A” below will provide a very broad, but hopefully easy to understand, overview on Section 504 eligibility for students in kindergarten through 12th grade. This overview by no means covers all required Section 504 procedures and practices in the school setting. If you need help with a school situation involving Section 504, it is best to consult an education attorney.
First thing is first: What is “Section 504”?
The United States Department of Education’s Office for Civil Rights (OCR) offers a detailed discussion of “Section 504” on its website; it’s my recommended source of 504 information.
That website states that Section 504 is:
a federal law;
applicable to schools that receive any funding from the federal government (all public and charter schools are covered);
that protects the rights of individuals with disabilities.
Section 504 makes it illegal to discriminate against individuals with disabilities, exclude them from any activity or deny full benefit of the school’s programs because of a disability. Section 504 applies to all school programs, including extracurriculars, after-school programs and athletics.
The United States Department of Education’s website states, verbatim:
“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. 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." https://www2.ed.gov/about/offices/list/ocr/504faq.html
Which students are eligible for protection under Section 504?
“To be protected under Section 504, a student must:
(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) is regarded as having such an impairment.” https://www2.ed.gov/about/offices/list/ocr/504faq.html
Examples of impairments that may substantially limit a major life activity and impact a student in school include:
attention deficit disorders (ADHD)
post-traumatic stress disorder
a chronic/ongoing anxiety disorder
(these are just examples, not an exhaustive list)
The “major life activity” that is impaired in school does NOT have to be learning, though learning IS a “major life activity.” Other examples of major life activities are eating, walking, hearing and speaking. A student’s disability must impact them in some way during the school day, such that they need accommodations, modifications or supports in the school setting in order to participate in school. For example, if a student has a disability that only impacts them when they sleep at night, but never occurs during the school day, they are unlikely to be in need of Section 504 supports. In comparison, if the student has a disability that causes extreme fatigue such that they fall asleep at inconsistent times, but at times during school, they may need Section 504 supports.
How do we identify a student with a qualifying disability? Who does this?
Schools are required to have procedures for initial and periodic re-evaluations to determine Section 504 eligibility. Teachers or a parent may initiate a student’s evaluation for Section 504 supports. Parental consent is required for an initial evaluation under Section 504. The regulations do make clear that it is the school’s responsibility to undertake an “evaluation” to determine if a student has a qualifying disability, this duty does not rest solely on parents. Further, the regulations require that information from a “variety of sources” be used.
Equally important, the Section 504 regulations require that a team approach be used to determine how a student is supported. If a student’s placement is an issue, schools must: “ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options… .” 34 C.F.R. §104.35(c).
Are parents required to provide a medical diagnosis to obtain Section 504 supports?
Does a medical diagnosis automatically entitle a student to Section 504 supports?
No. This said, a medical diagnosis is one piece of information that can and should be considered as a part of a Section 504 eligibility determination. I’ve highlighted this point separately, because it may be the single most common question I hear on Section 504. The Office for Civil Rights specifically includes this issue in its Frequently Asked Questions guidance stating:
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. …the Section 504 regulations require school districts to draw upon a variety of sources in interpreting evaluation data and making placement decisions.”
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 services under 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.” https://www2.ed.gov/about/offices/list/ocr/504faq.html
When does a disability “substantially limit” a major life activity and who decides this?
Above we’ve discussed that a student must have a “disability” to be eligible for Section 504 supports. The next prong of a Section 504 eligibility analysis asks whether the student is “substantially limited” by their disability. Here is where things become tricky. Whether a student is “substantially limited” by their disability is determined on a case-by-case basis by what the Office for Civil Rights call a “multidisciplinary team.” The U.S. Department of Education says: “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 Office for Civil Rights does not foresee one school administrator making an eligibility decision on their own: “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.”
Examples of additional helpful and accurate Section 504 Resources:
1. In 2016, the Office for Civil Rights issued very detailed, clear guidance (interpreting the law), about Section 504 protections and procedures for students with ADHD. While the document focuses on ADHD, the information about evaluation and support procedures under Section would be most helpful to any school team: “Dear Colleague Letter and Resource Guide on Students with ADHD”
2. Another great source of information is The Office for Civil Rights’ website on protections for students with “hidden” disabilities: https://www2.ed.gov/about/offices/list/ocr/docs/hq5269.html
3. The New Jersey Department of Education also has a Section 504 summary and page of resources on its website: https://www.state.nj.us/education/students/safety/behavior/504/
4. While New Jersey Administrative decisions do not create case law precedent, there is a noteworthy decision from 2017 where the Administrative Law Judge found that a school violated Section 504 by refusing to provide a Section 504 plan for a student with Celiac disease. The school argued it could meet the student’s needs with an Individualized Health Plan. The Judge disagreed, finding the case presented a clear Section 504 violation. https://www.nj.gov/oal/decisions/final/pdf/EDS%2011880-16.pdf
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