Questions and Answers
If a child has been diagnosed with Attention Deficit Disorder, and found to be ineligible for services under IDEA, is that child automatically eligible for protection from discrimination under Section 504?
Neither IDEA nor Section 504 allow for “automatic” eligibility. One might assume that the child was not eligible under IDEA because he/she did not require specially designed instruction in order to receive FAPE (no evidence of adverse effect on educational performance). The question under Section 504 is whether the identified disability (ADD) results in a substantial limitation in a major life activity. Given this framework, it is indeed possible that students with a diagnosis of ADD will be treated differently~, as all decisions must be made on an individual student basis. Section 504 eligibility is not automatically given to a student who is referred for a special education (IDEA) evaluation and who is subsequently determined not to be IDEA-eligible.
If a child is eligible under IDEA, but the parent wants a Section 504 plan instead of an IEP, must the district comply?
No. A rejection by the parent of the services available under IDEA amounts to a rejection of services under Section 504. OCR has stated in Letter to McKethan, 25 IDEA 295 (OCR 1996) that it is impermissible for a student’s parent to refuse to accept IDEA services and require the district to develop an IEP under Section 504.
Do parents with disabilities have a right to accommodations even though their child does not have a disability?
Yes, when accommodations are needed in order for them to participate in essential components of their child’s educational program. For example, an interpreter might be needed during the awards night program when their child is receiving an award. Be aware that such services cannot be afforded through IDEA funds.
Is every student with an IEP (eligible under IDEA) also eligible for protection under Section 504?
Yes. As stated, OCR cannot conceive of any situation in with IDEA-eligible children would not also be entitled to the protection extended by Section 504 (Letter to Veir, 20 IDELR 864 (OCR 1993). This does not mean that a Section 504 Plan should be developed in addition to the Individual Education Program (IEP). Due process rights and protections under IDEA are designed to prevent discrimination due to a disability.
Is there a transition requirement under Section 504?
No. There is a transition requirement under the IDEA, but not under Section 504. However, it is strongly advised that a transition conference be held for all students with disabilities prior to graduating from high school. Of course, students with disabilities served under the IDEA must have a conference to finalize transition services. Those students only protected under Section 504 do need, at a minimum, the documentation of their disability and the accommodations that have been provided to them in their secondary setting. It is advised that all schools inform students with disabilities that they may be eligible for protections under Section 504 and the ADA.
What disciplinary requirement exist in Section 504?
Section 504/ADA provides civil rights protections. Denial of access, and/or a significant change in placement, should not occur when there is a definable nexus or relationship between the misconduct and the disability. Negative action must not be taken against a student for misconduct that is a product of the disability. The student’s 504 team should meet and make this decision. A reevaluation should be conducted prior to any significant change in placement.
Section 512(a) of the ADA amended Section 504 to allow schools to take disciplinary action against students with disabilities to the same extent as it would take action against non-disabled students in areas pertaining to the use or possession of illegal drugs or alcohol. Under this language, OCR has issued policy guidance which recognizes that students who are disabled by drug addiction or alcoholism may be disciplined to the same extent as other students, but that a student who is disabled by some other condition in addition to drug addiction or alcoholism must be evaluated and afforded due process prior to disciplinary action that would constitute a significant change in placement.
There is no requirement in Section 504 for the continuation of FAPE following the expulsion of a student. However, school districts should be aware of specific state regulations which may address the continuation of services for any student who may be denied attendance at a public school site due to disciplinary infractions.
How should a local school district operationalize the concept of “substantially limits”?
The phrase “substantially limits” is possibly the most critical part of the Section 504 eligibility process, and the most misunderstood. Without specific clarification it can be one of the most subjectively implemented components of the eligibility determination. The actual presence of an identified disability is not sufficient, in and of itself, to qualify a student as eligible for protection under Section 504. Just as ~adverse effect on educational performance~ must be proven under IDEA, so must there be clear evidence of a ~sustantial limitation of a major life activity~ under Section 504.
It is the belief of CASE that the intent of Section 504 is NOT to have every student who may have a disability qualify for Section 504 accommodations and protections. Only when the disability results in ~substantial limitation in the performance of a major life activity should the student be protected from discrimination due to this disability.
The Americans with Disabilities Act provides some assistance in interpreting the phrase “substantially limits”. In that law, the impairment or disability must be substantial and somewhat unique, rather than commonplace, when compared to the average person in the general population (Sec: 1630.2(j) (1).
Thus, for the purpose of this discussion, it is suggested that the term “substantially limits” be interpreted to mean that the student is unable to perform a major life activity that the average student of approximately the same age can perform, or that the student is significantly restricted as to the condition, manner or duration under which a particular major life activity is performed as compared to the average student of approximately the same age.