Legal Obligations of the School District

All programs, services, and activities of the FDOE, school districts, colleges, universities, and public and private schools that receive federal financial assistance must comply with Section 504 requirements, regardless of whether the specific programs, services, or activities receive direct program-specific federal financial assistance. School districts have a number of obligations under Section 504, including the following:

• Conduct appropriate child find and initial evaluations.
• Establish standards and procedures for the identification and evaluation process.
• Conduct periodic reevaluations of students with disabilities.
• Provide FAPE through the provision of a Section 504 plan to meet the individual educational needs of eligible students as adequately as the needs of nondisabled students are met.
• Provide education to students with disabilities in the least restrictive environment (LRE).
• Provide students with disabilities equal access to nonacademic and/or extracurricular services.
• Establish and implement a system of procedural safeguards regarding the identification, evaluation, placement, or provision of FAPE to a student.
• Ensure behavior in question is not a manifestation of a student’s disability during disciplinary proceedings.
• Provide transportation under specific individual circumstances and conditions.
• Provide equal access to parents who have a disability.

For public schools, these obligations apply to all students within the age range served by the district. Section 504 regulations provide that:

“With respect to public preschool, elementary, secondary, or adult educational services, a disabled person is qualified if he or she is (i) of an age during which nondisabled persons are provided such services; (ii) of any age during which it is mandatory under state law to provide such services to disabled persons; or (iii) is an individual to whom a state is required to provide a free appropriate public education under Section 612 of the Education of the Handicapped Act.” (34 CFR §104.3(l)(2))

Students in Voluntary Pre-K (VPK) programs are covered under Section 504 if the program provider receives federal funds. Private providers for VPK are not subject to Section 504 unless the provider receives federal funds.

FAPE in the Least Restrictive Environment (LRE)

Public elementary and secondary education programs must provide FAPE to each qualified person with a disability, regardless of the nature or severity of the person’s disability (34 CFR §104.33). The implementation of an IEP is one way of meeting the FAPE requirement of Section 504 (34 CFR §104.33(b)(2).

For purposes of Section 504, the provision of an appropriate education can be the provision of general or special education or related services designed to meet individual educational needs of persons with disabilities as adequately as the needs of persons without disabilities are met and meet requirements related to the educational setting, established standards and procedures for evaluation and placement, and established procedural safeguards (34 CFR §104.33). Thus, there are some students with disabilities who do not need special education services but may be in need of accommodations and/or related services in the general education environment.

Districts must provide educational services to students with disabilities in the general education environment to the maximum extent appropriate to the needs of the students. A school or district may only remove a student with disabilities from the general education environment if it can be demonstrated that the education of the individual in the general education environment without the use of supplementary aids and services cannot be achieved satisfactorily (34 CFR §104.34). For a student who does not need exceptional education services, it is generally assumed that accommodations will be provided in the general education environment pursuant to the Section 504 plan.

Related Services

A student may receive related “aids and services” under Section 504 if such services are necessary to provide a FAPE. Under Section 504, FAPE includes any related aids and services designed to meet the individual student’s needs to the same extent as the needs of students without disabilities are met (34 CFR 104.33). A multidisciplinary team is responsible for determining eligibility and related services needs under Section 504. If the team determines that related aids and services are required to meet the individual educational needs of a Section 504-eligible student, the services should be documented on the student’s Section 504 plan. The district is obligated to provide these services to qualified students.

Related services are not explicitly defined in Section 504; however, technical assistance from the OCR indicates that related services refer to developmental, corrective, and other supportive services, including psychological, counseling, and medical diagnostic services and transportation. The definition of related services in IDEA 2004 may assist teams in identifying a range of services that might be applicable to a student with a Section 504 qualifying disability, or pursuant to IDEA provisions and state guidelines on discretionary use of 15 percent of IDEA B funds for early intervening services (34 CFR §300.34). If the student’s disability is severe enough to require related services, the team should review all available data to determine whether the student meets eligibility criteria for a disability category under IDEA.

Use of Service Animals

The U.S. Department of Justice finalized regulations promulgated under Title II of the ADA regarding the use of service animals in governmental settings, including public schools in 2011. The ADA regulatory mandate requires public entities, like schools, to modify their policies, practices and procedures to permit an individual with a disability to use his or her service animal. This mandate is not generally considered to be related to the provision of a FAPE and does not mandate that schools provide or pay for service animals. Rather, it affords a student with a disability who has a service animal the accommodation of being accompanied by the service animal at school.

There are only two questions that may be asked and answered when a request to allow a student to bring his or her service animal to school is made: 1) whether the student for whom the request is made is an individual with a disability; and 2) whether the service animal meets the definition of “service animal” under the law. 

The ADA regulations define a “service animal” as “any dog trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability” (emphasis added). The regulatory definition provides examples that do not constitute “work or tasks.”  Specifically, the regulation provides that “[t]he crime deterrent effect of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition” (28 CFR §35.104).

School districts should develop specific procedures for addressing service animal requests and should consider the inclusion of the following components in those procedures:

• A timely process for initiating a request that a student be allowed to bring a service animal to school.
• A process for making decisions and approving or denying a request for a student to bring a service animal to school, including responsibilities and timelines.
• A process for parent(s) to challenge a decision not to allow the use of the animal.
• A process for properly dealing with the service animal while it is in the school environment.

Important note: In all instances, a school district should involve legal counsel for input and approval in the process of developing or modifying its current policies, practices or procedures for addressing requests related to service animals and students and applying them in an individualized case-by-case fashion when faced with questions or issues related to an individual situation.

Nonacademic/Extracurricular Services

A district must ensure nondiscrimination in the provision of opportunities for students with disabilities to participate in nonacademic and extracurricular activities. Districts must provide equal opportunity in areas such as counseling, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs, referrals to other agencies, and employment (34 CFR §104.37).

A school district that offers physical education courses or sponsors or operates interscholastic, club, or intramural athletics shall provide an equal opportunity to participate to qualified students with disabilities. A school district may offer students with disabilities physical education and athletic activities that are separate or different from those offered students without disabilities only if the separation or differentiation is consistent with the requirements of 34 CFR §104.34 and only if no qualified student with a disability is denied the opportunity to compete or participate (34 CFR §104.37(c)).

Nonpublic School Placement by Parent

If the district has made available to a student a FAPE that conforms to the requirements of Section 504 but the parent chooses to place the child elsewhere, the district is not responsible for implementing a Section 504 plan or for any costs the parent incurs in placing the student elsewhere (34 CFR §104.33(c)(4)).

A student with a recognized disability who is eligible for accommodations under Section 504 is eligible for the McKay Scholarship Program for Students with Disabilities. To participate in this scholarship program, the student must meet the eligibility criteria described in s. 1002.39, F.S. School districts are required to provide a notice to parents within 10 days of the development of a Section 504 plan, alerting them of the option of accessing the McKay Scholarship. School districts are required to provide an annual notice to parents by April 1 of each year informing them of their school choice options. Students eligible for a temporary Section 504 plan for six months or less in duration are not eligible for the McKay Scholarship.

Students Who Transfer From Another District with a Section 504 Plan

If a student with a disability transfers with a Section 504 plan, the receiving district should review the plan and supporting documentation. If a group including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options determines that the plan is appropriate, the district is required to implement the plan.

If the district determines that the plan is inappropriate, the district is to evaluate the student consistent with the Section 504 procedures at 34 CFR §104.35 and determine which educational program is appropriate for the student. Section 504 does not prohibit to the receiving school district from honoring the previous plan during the interim period.

Next: Click to proceed to Module 2 — A Section 504 Disability.