Section 504 Information

Section 504 Manual

What is Section 504?

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. Alpena Public Schools is such a recipient. Section 504 provides: "No otherwise qualified individual with a disability in. . . 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 . . . ." 

The Section 504 regulations require APS 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 non-disabled students are met. 

Who is protected under Section 504?

Section 504 covers qualified students with disabilities who attend Alpena Public Schools. To qualify, 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. be regarded as having such an impairment. 

What services are available for students with disabilities under Section 504?

Section 504 requires Alpena Public Schools 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 could consist of education in regular classrooms, education in regular classes with supplementary services, or special education and related services. 

What is a physical or mental impairment?

The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on a case-by-case basis. 

Section 504 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 mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 

This list is not to be considered an exhaustive list. 

What is a major life activity?

Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 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. 

An activity or function not specifically listed in the Section 504 regulatory provision can nonetheless be a major life activity.

Is there a formula to determine what constitutes a "substantial" limitation?

No. This has to be determined on a case-by-case basis for each individual student. 

Are there any impairments which automatically qualify a student as having 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. 

Does a medical diagnosis of an illness automatically mean a student can receive services?

No. A medical diagnosis of an illness does not automatically mean a student is eligible. The illness must cause a substantial limitation of the student's ability to learn or another major life activity. 

How does Alpena Public Schools determine if a child qualifies?

APS determines eligibility based upon an evaluation process. Evaluation procedures ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed. 

What constitutes an appropriate evaluation under Section 504?

A student must be individually evaluated before classifying the student as having a disability or providing the student with services. Tests used for this purpose must be selected and administered 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 valid and appropriately administered. 

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

The amount of information required is determined by the committee evaluating 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. Section 504 requires that APS draw from a variety of sources in the evaluation process. 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. 

Is a medical diagnosis sufficient as an evaluation for the purpose of providing FAPE?

No. A physician's medical diagnosis may be considered as one source in evaluating a student with an impairment or believed to have an impairment which substantially limits a major life activity. Other sources must be considered, along with the medical diagnosis as discussed above. 

May the district 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 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. 

Congress did not define the term “mitigating measures” but did provide a list of examples 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. 

The effects 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” are devices that magnify, enhance, or otherwise augment a visual image. 

How should we handle an outside independent evaluation?

The results of an outside independent evaluation may be one source of information to consider. Committees must use variety of sources in the evaluation process. All significant factors related to the student's learning process must be considered. Information from all sources must be considered and documented by the committee members. The weight given to the information is determined by the committee given the circumstances. 

What should be done if a parent refuses to consent to an initial evaluation but demands a plan?

The 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 the district suspects a student has a disability, Section 504 provides that school districts may use due process hearing procedures to try to override the parents' denial of consent. 

Who makes the ultimate decision regarding a student's eligibility for services?

The decision that a student is eligible for services under Section 504 is to 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/she may request a due process hearing. 

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. If the school district re-evaluates the student 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 becomes ineligible. 

Is there a review requirement?

Yes, periodic review is required. This may be conducted in accordance with the IDEA regulations, which require re-evaluation at three-year intervals (unless the parents and district agree otherwise) or more frequently if warranted, or if the parent or teacher requests a re-evaluation, but not more than once a year. Section 504 also requires that we conduct a re-evaluation prior to a "significant change of placement." OCR considers an exclusion (e.g. suspension or expulsion) 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. 

When should a student be referred for evaluation for services under Section 504?

The district may of course use regular education intervention strategies to assist students with difficulties in school. Section 504 requires that we 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. 

What if the parent wishes to withdraw the student from a Section 504 plan?

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

A student has a disability under IDEA, but does not require special education services. Is such a student eligible for services under Section 504?

Maybe. The district must determine whether the student has an impairment which substantially limits his or her ability to learn or carry out another major life activity and, if so, make an individual determination of the student's needs. For example, such a student may receive adjustments in the regular classroom. 

What about a temporary impairment?

A temporary impairment does not constitute a disability under of Section 504 unless it is severe enough that it results in a substantial limitation of one or more major life activities for an extended period of time. This question must be answered 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. Congress has 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 six months or less. 

What about an impairment that is episodic or in remission?

Congress recently clarified that an impairment that is episodic or in remission is a disability if it significantly limits a major life activity when active. A student with such an impairment is entitled to FAPE. 

If a student is eligible for services under both IDEA and Section 504, must we develop both an IEP and a Section 504 plan?

No. If the student is eligible under IDEA, he or she must have an IEP. Implementing the IEP is one way to meet the requirements for a free appropriate public education. 

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. Unless a student actually has an impairment that substantially limits a major life activity, the fact that a student has a "record of" or is "regarded as" disabled is not enough to require a plan. (However, the student may not be discriminated against). Congress has clarified that an individual who meets the definition of disability because he/she is “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 cover the situation where a student either does not currently have or never had a disability, but is treated by others as such. 

What is the district's responsibility toward a student with a Section 504 plan who transfers from another district?

If a student with a disability transfers from another school district with a Section 504 plan, APS should review the plan and supporting documentation. If the committee determines that the plan is appropriate, the district is required to implement the plan. If the committee determines that the plan is not appropriate, the district must evaluate the student according to Section 504 requirements and determine which educational program is appropriate for the student. We are not prohibited from honoring the previous IEP during the interim period. 

What responsibilities do regular education teachers have with respect to implementation of Section 504 plans?

Regular education teachers must implement the provisions of Section 504 plans for their students. 

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.  

What procedural safeguards are required under Section 504?

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. 

What is the district's responsibility under Section 504 to provide information to parents?

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. This would be done through the hearing process. 

Who has authority to enforce Section 504?

The Office of Civil Rights (OCR) has 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. 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. 

Where can I get more information on Section 504?

Guidance from the Office for Civil Rights (OCR) is available on OCR’s website.

Section 504 Terms:

disability/disabled

a physical or mental impairment which "substantially limits" one or more "major life activities"

episodic impairment

a physical or mental impairment which comes and goes over time; an impairment of a major life activity that is episodic or in remission; must consider whether the impairment, when active, would substantially limit a major life activity

FAPE

free, appropriate public education guaranteed to all students with disabilities

major bodily functions

the subset of "major life activities" including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions

major life activities

functions including, but not limited to, caring for oneself, sleeping, performing manual tasks, standing, walking, lifting, seeing, bending, hearing, reading, speaking, concentrating, breathing, thinking, learning, communicating, working, eating, or operating "major bodily functions"

mitigating measures

measures used to ameliorate the effects of a disability, including but not limited to medication; medical supplies, equipment or appliances; low-vision devices (devices that magnify, enhance, or otherwise augment a visual image); 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.

regarded as

perceived as being impaired; students "regarded as" having an impairment shall not treated differently based upon a record that shows that they were disabled in the past, or based upon an assumption or perception of disability; there is no requirement to develop a Section 504 plan for a student who either has a record of an impairment or who is regarded as having an impairment, but who is not otherwise currently eligible under Section 504

substantially limits

although the law does not define this term, it is not to be construed as synonymous with "unable to perform" or "significantly restricted;" degree of limitation must be considered without the effects of "mitigating measures" (with the exception of regular glasses or contact lenses