Section 504 Disability and Need for Section 504 Plan Determination

The following are recommended steps when making the decision as to whether a student has a disability:

• Assemble a Section 504 team comprised of a group of individuals knowledgeable about the student, evaluation data, and placement options.
• Obtain consent prior to an initial evaluation.
• Conduct the evaluation – gather all available evaluation data, including information provided by the parent, and collect any additional data needed to answer the disability and need for services questions.
• Provide notice to the parent of the disability determination meeting.
• Identify the specific physical or mental impairment at the meeting.
• Identify the major life activity or bodily function impacted by the impairment at the meeting.
• Verify whether a substantial limitation in a major life activity exists. Determine the degree to which the identified physical or mental impairment substantially limits a major life activity.
• Determine whether a disability exists. Avoid basing this determination solely on a medical or clinical diagnosis with no evidence of the substantial limitation.
• If the student is determined to be disabled, determine if the student needs a Section 504 plan to meet his educational needs as adequately as the educational needs of nondisabled students are met. The disability determination and the need for a Section 504 plan should be based on current needs (validated by evaluation data) and not on anticipated future needs.

The Section 504 disability determination and the determination for the need for a Section 504 plan are separate determinations. The Section 504 team must first determine whether a student is Section 504 disabled, and, if so, whether the student requires a Section 504 plan. Office for Civil Rights (OCR) letters of finding have highlighted a view of Section 504 eligibility that requires public schools to separate the question of disability from the question of whether the student needs a Section 504 plan. OCR stated that:

The procedures also state that a student is not eligible under Section 504 as a student with a disability if the student does not need Section 504 services in order for the student’s educational needs to be met, which conflates the determination of disability with placement and services decisions, which should be separate (110 LRP 7395, OCR 2009).

This language from OCR seems to indicate that a student can be technically Section 504 disabled under Prong One but not be eligible for Section 504 services, for example, because the impairment is in remission and no services are necessary for the student to receive a free appropriate public education (FAPE) or because there are mitigating measures present that ameliorate the impact of the student’s disability so that no services are necessary.

Though the positive impact of accommodations is pertinent in evaluating the effectiveness of those accommodations, their impact should not be conflated with the issue of eligibility (55 IDELR 21, OCR 2009).

Based upon this guidance, it is clear that students who are disabled under Prong One are not necessarily entitled to a Section 504 accommodation plan. Where no plan is needed (there is no disability need to be addressed or accommodated because the student’s educational needs are being met as adequately as those of nondisabled peers), the student is to be considered disabled, however, and is protected from discrimination on the basis of disability, thereby receiving manifestation determination protections in discipline, procedural safeguards, and periodic reevaluation of the disability (as needed). Put simply, a student does not have to demonstrate a need for services to be Section 504 disabled. Consequently, students who meet the definition of disability under Prong One due to the existence of an impairment, or one that is in remission but who have no current need for educational services, would not receive a Section 504 accommodation plan. Should the need for a Section 504 plan develop, however, the Section 504 team would reconvene and reevaluate the student and develop an appropriate Section 504 plan at that time.

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MYTH: A student evaluated under IDEA and determined ineligible for an individual educational plan (IEP) is automatically covered by Section 504.

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