Section 504 Introductory Course

Section 504 of the Rehabilitation Act of 1973 (Section 504) is one of several federal and state laws that protect students with disabilities. Section 504 is a federal civil rights statute prohibiting discrimination on the basis of disability in any program or activity receiving federal financial assistance.

As applied to public schools, Section 504 broadly prohibits discrimination by denying participation in public education, or the enjoyment of the benefits offered by public school programs because of a student’s disability.

Section 504 guarantees the right to full participation and access to a free appropriate public education (FAPE). FAPE is documented on a Section 504 plan identifying the services and accommodations that are necessary for the student to access instruction and participate in educational and school-sponsored extracurricular activities. The law recognizes that equal treatment and services may not be sufficient to convey equal benefit; however, for nondiscrimination to occur, the school must provide services that level the playing field so that Section 504-eligible students have equal participation and opportunity for benefit.

Section 504 (34 CFR §104.4(b)(1)) specifically prohibits schools (as well as other programs or activities that received Federal financial assistance) from engaging in the following discriminatory actions:

• Denying a qualified student with a disability the opportunity to participate in or benefit from the aids, benefits, or services that are afforded other students.
• Affording a qualified student with a disability an opportunity to participate in or benefit from the aids, benefits, or services that are not equal to that afforded other students.
• Providing aids, benefits, or services to a qualified student with a disability that are not as effective as those provided other students.
• Providing different or separate aids, benefits, or services to a qualified student with a disability unless necessary to provide aids, benefits, or services that are as effective as those provided others.
• Aiding or perpetuating discrimination by providing significant assistance to an agency, organization, or person that discriminates on the basis of a disability.
• Denying qualified persons with disabilities the opportunity to participate as a member of a planning or advisory board because of their disability.
• Limiting a qualified student with a disability from the enjoyment of any right, privilege, advantage, or opportunity enjoyed by other students.

To be equally effective, aids, benefits, and services do not have to produce identical results, but must afford equal opportunity to obtain the same result in the most integrated setting appropriate (34 CFR §104.4(b)(2)). A qualified student with a disability may not be denied the opportunity to participate in a program or activity that is not separate or different; providing unnecessarily separate or different services is a discriminatory practice under Section 504.

The United States Department of Education, Office for Civil Rights (OCR) provides compliance oversight for Section 504. OCR clarifies the requirements of Section 504 in Frequently Asked Questions: Section 504 Free Appropriate Public Education (FAPE).

There are other federal and state laws that, like Section 504, were enacted to protect students with disabilities from discrimination and establish guidelines for the provision of services designed to meet the needs of students with disabilities. The table below summarizes the legal citations and references for the major federal and state laws that set forth the obligations of school districts and postsecondary institutions in serving the needs of students with disabilities.

		Federal Laws		State Law
	Section 504	ADA	IDEA 2004	FEEA
Current Law	PL 93-516	PL 101-336	PL 108-446	s. 1000.05, F.S.
Legal Citations	29 U.S.C. Chapter 794	42 U.S.C. Chapter 12131	20 U.S.C. Chapter 33, 1400ed.seq
Implementing Regulations	34 CFR Part 104	28 CFR Part 35	34 CFR Part 300 & 301 (August 2006)	Chapter 6A-19 F.A.C.

Because the lines of demarcation between these laws and Section 504 are not always evident, it is important to understand the interdependence and uniqueness of each when serving students with disabilities. A brief summary of the other major laws impacting students with disabilities follows.

Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act (IDEA) was initially enacted in 1975 as the Education for All Handicapped Children Act (Public Law 94-142). IDEA requires public schools to provide a FAPE (i.e., specially designed instruction and related services designed to meet unique needs) to all eligible children with disabilities in the least restrictive environment. FAPE is documented on an individual educational plan (IEP) designed to meet the unique needs of each student with a disability. IDEA was most recently reauthorized in 2004 as the Individuals with Disabilities Education Act (IDEA 2004). IDEA 2004 moved the emphasis from educational access to improved educational outcomes for students with disabilities.

In contrast to the other disability laws summarized in this module, IDEA is an entitlement that provides federal financial assistance to states and districts for the provision of special education and related services to qualifying students. The United States Department of Education, Office of Special Education Programs and the Florida Department of Education (FDOE), K–12 Schools, Bureau of Exceptional Education and Student Services provide compliance oversight for IDEA in Florida.

In many ways, the requirements of IDEA and Section 504 are similar. Both focus on children, require a FAPE, are documented in a plan (IEP for IDEA or 504 plan for Section 504), and provide procedural safeguards. However, IDEA is an entitlement that has different standards for evaluation, eligibility, and services. IDEA offers a higher level of protection while Section 504 offers broader coverage. Technically, any student who qualifies for an IEP is protected under Section 504 but does not need a separate 504 plan as the provision of an IEP is one way to meet the requirements of Section 504 (34 CFR §104.33(b)(2).

Americans with Disabilities Act Amendments Act of 2008

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities and extends this prohibition to the full range of state and local government services, programs, or activities regardless of whether they receive federal assistance. The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) revised the ADA to broaden the definition of “disability” to allow for broader coverage, expand the list of major life activities to include major bodily functions, lower the standard for a “substantial limitation,” and introduced a new mitigating measures rule. The changes made to ADAAA apply to public school students under Section 504 and significantly change Section 504 eligibility determinations.

The OCR is responsible for resolving complaints alleging noncompliance with the ADA. OCR has provided guidance on the impact of the ADAAA on public schools in the Q&A document Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools.

Florida Educational Equity Act

The Florida Educational Equity Act (FEEA) mirrors many of the protections provided in Section 504 and ADA. FEEA prohibits discrimination against students and employees in the K–20 public education system on the basis of race, ethnicity, national origin, gender, disability, or marital status. It specifies that no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any K–20 public education program or activity (section 1000.05, Florida Statutes (F.S.)). The definition of disability is the same as defined in Section 504 and ADA. The implementing rules for this statute are found in Chapter 6A-19, Florida Administrative Code (F.A.C.). FDOE’s Office of Equal Educational Opportunity provides compliance monitoring and technical assistance for FEEA.

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.

Click on the myth below to reveal the reality behind the myth.

MYTH: School districts may deny a request for a student to bring a service animal to school if the school has trained personnel who can provide the student the same assistance as the service animal.

According to the OCR and the U.S. Department of Justice, whether a student with a disability may bring his or her service animal to school does NOT depend upon whether the animal is necessary to provide the student FAPE.

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.

Click on the myth below to reveal the reality behind the myth.

MYTH: When the school district has offered a Section 504 accommodation plan to the student but the parent decides to place the student in a private school, the school district must provide accommodations in the private school.

Under Section 504, only a FAPE is required. Once the school district has afforded access to a public educational program, it has fulfilled its obligation under Section 504.

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.

Section 504 was enacted to protect qualified individuals from discrimination based solely on their disability. Whether a particular student is protected under Section 504 requires a determination that the student is an “individual with a disability” and that the student is “qualified” under Section 504. A student is “disabled” under the Section 504 regulations if the student meets any one of the three “prongs” listed in 34 CFR §104.3(j)(1). An individual is considered disabled under Section 504 if the individual:

1. has a physical or mental impairment which substantially limits one or more major life activities,
2. has a record of such an impairment, or
3. is regarded as having such an impairment.

Although all students who fit the definition of disability under any of the prongs receive the nondiscrimination protections of Section 504, the requirements of a free appropriate public education (FAPE) under Section 504 are more limited and require additional analysis. Being identified as a student with a disability is necessary but is not sufficient to establish a need for FAPE under Section 504. The applicable prongs of the disability definition determine which of the Section 504 protections are extended to the student. The table at the end of this module summarizes the protections that correspond to each of the three prongs of the disability definition.

To be considered disabled under Prong One, the student must currently have a physical or mental impairment that substantially limits one or more major life activities or major bodily functions. Finding a disability under Prong One requires careful analysis of: 1) the physical or mental impairment; 2) the major life activity or bodily function impacted; and, 3) the degree to which the impairment limits the activity. Students described in Prong One are protected from discrimination under Section 504 and may be entitled to FAPE via a Section 504 Plan if determined necessary by the Section 504 team.

Physical or Mental Impairment

The Section 504 regulations provide a broad definition of the “physical or mental impairment.”

Physical or mental impairment means (A) 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 (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities (34 CFR §104.3(j)(2)).

Age and conditions resulting only from cultural or economic factors are not considered disabilities under Section 504.

Major Life Activities

Section 504’s definition of disability requires a team to look at the impact of the physical or mental impairment on one or more major life activities. The list of major life activities includes, but is not limited to, the following:

The italicized major life activities above were specifically added to the list as a result of changes made by the Americans with Disabilities Act Amendment Act of 2008 (ADAAA). It is important to note that ADAAA additions to major life activities could likely result in more students technically meeting the definition of disability under Section 504. For example, a student with dyslexia who is able to learn (due to compensatory skills and extra work) may not have been viewed as disabled prior to the ADAAA; but after the ADAAA, may be substantially limited in her ability to read (as opposed to her ability to learn).

Section 504 teams cannot limit their analysis of whether a student has a disability to a review of the impairment’s impact on the major life activity of learning (one of multiple major life activities identified by Congress) to the exclusion of other major life activities or bodily functions. The Office for Civil Rights (OCR) has consistently found Section 504 violations when schools limit their determination of disability to whether the student is substantially limited in the ability to learn. All major life activities must be considered in determining whether a disability exists.

Major Bodily Functions

In the definition section of the ADAAA, Congress provided that “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

One of the problems encountered in making a disability determination is identifying the major life activity or major bodily function the impair­ment impacts. To ease the burden and make the analysis more disability-friendly, it is helpful to identify major bodily functions. For some impairments, like diabetes, the addition of major bodily functions (specifically, the endocrine function) makes tying the impairment to a major life activity obvious. When determining whether a disability exists, schools that merely look to major life activities, while ignoring major bodily functions do so at their own peril. For example, OCR found a school’s Section 504 evaluation for a student with irritable bowel syndrome and other digestive complaints in violation of law when the district improperly concluded that the student was not eligible due to good grades, failing to consider the impact on the major life activity of digestive function (55 IDELR 21, 2009). Again, that district limited its consideration of whether a disability existed to the major life activity of learning.

Substantial Limitation

In order to be considered disabled under Prong One, the physical or mental impairment must also be found to “substantially limit” a major life activity or bodily function. Section 504 does not currently provide an operational definition of “substantial limitation.” Instead, the U.S. Department of Education (USDOE) has concluded that each Local Education Agency (LEA) should make its own determination of what the phrase “substantial limitation” means.

The federal Equal Employment Opportunity Commission (EEOC) created a definition of “substantial limitation” for use in employment cases that is sometimes used by schools in making Section 504 disability determinations. Current EEOC regulations have been put into place as follows: (i) the term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted under the terms of the ADA.  “Substantially limits” is not meant to be a demanding standard. (ii) An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.  An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.  Nonetheless, not every impairment will constitute a disability within the meaning of this section (29 CFR § 1630.2(j)(1)). 

Based upon this analogous language, determining whether a student has a “substantial limitation” in a major life activity could be based upon a comparison of how that particular student performs a major life activity at issue as compared to “most people” in the general population.  While this new regulation may be useful, schools still have the discretion to define the meaning of “substantial limitation” when determining whether a student has a disability.

Click on the myth below to reveal the reality behind the myth.

MYTH: Section 504 provides more than the IDEA in terms of coverage and protection in the educational environment.

Yes and no. Section 504 provides for wider nondiscrimination coverage than the IDEA due to 504’s coverage of individuals with records of impairment and individuals regarded as impaired. As far as protections are concerned, special education students receive rights, procedural protections, and access to resources under IDEA that exceed those available for students disabled under Section 504.

Temporary Impairments
A temporary impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities for an extended period of time. The issue of whether a temporary impairment is substantial enough to be a disability must be resolved 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 of the affected individual (Question #33 in OCR’s revised Q&A). Consequently, the fact that the impairment is not permanent does not prevent the impairment from constituting a disability under Prong One if it is substantially limiting.

Episodic Impairments
The ADAAA declares that, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Some students have physical or mental impairments that ebb and flow in activity and severity. Conditions such as seasonal allergies or asthma, migraines, and cystic fibrosis are good examples of impairments that may be substantially limiting at times (in hot weather, when the student is stressed, when irritants or trigger factors are present) and have little impact at other times. Schools commonly find such students to be disabled under Section 504 if their condition, though not constant, episodically rises to the level of substantial limitation of a major life activity. Congress’ concern seems to be that eligibility is not denied simply because the disability, at the moment of evaluation, is not substantially limiting, when the school knows from experience that substantial limitation will recur at some time. Thus, Section 504 teams should look carefully at data over a range of time (as opposed to a snapshot of what is occurring on the day the Section 504 team performs the evaluation to determine whether the student is disabled). The timing of the evaluation should not function to preclude a finding of disability for students whose impairments are episodic and who are not substantially limited at the time of evaluation.

Impairments in Remission
The ADAAA’s language regarding impairments in remission is identical to that regarding episodic impairments: “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” In essence, this provision takes impairments that were historically covered only by Prong Two (“record of” a disability) and transforms them into current (Prong One) impairments if the student is substantially limited when the impairment in remission is active. For example, a student who had cancer in elementary school could be disabled under Prong One of Section 504 in middle school, even though the student’s cancer has been in remission for five years, if the cancer was substantially limiting when it was active in elementary school.

Individuals with a record or history of a physical or mental impairment that substantially limits one or more of the individual’s major life activities are protected from discrimination under Section 504. A student who no longer meets eligibility criteria for a special program for students with disabilities (a former IDEA-eligible student) is an example of someone who has a record of having had a disability. Denying that student the opportunity to participate in field trips because of a previous history of a disability is an example of discrimination under Section 504. Some of these “records of impairment” may also trigger Prong One protections, including a Section 504 accommodation plan, due to the ADAAA’s rule on impairments in remission.

Students described in Prong Two are protected from discrimination under Section 504, even though they are not individuals with a current disability under Section 504 (i.e., Prong One) for which accommodations may be necessary and therefore would not require an accommodation plan.

Click on the myth below to reveal the reality behind the myth.

MYTH: Every student who has ever been in special education is automatically eligible for 504 accommodations because the student has a “record of” a disability.

When a student is dismissed from exceptional student education (ESE) services, best practice would include notifying the Section 504 contact at the student’s school to ensure proper monitoring or other appropriate services that may be required. While the student would receive nondiscrimination protection due to former IDEA eligibility, not all students dismissed from ESE will be automatically evaluated under Section 504 or entitled to Section 504 plans. Should the student be dismissed from ESE due to lack of need for ESE services, but still need some services and/or accommodations due to disability, that student should be referred for a Section 504 evaluation, and, if found to be disabled and in need of services to be educated as adequately as his/her nondisabled peers, would receive a Section 504 plan. Students dismissed from ESE, who the school suspects have no need for services, or are no longer substantially limited by their physical or mental impairment, would not need to be referred to Section 504. This decision is made on a case-by-case basis.

Finally, individuals who are regarded as having a physical or mental impairment when in fact such impairment may or may not actually exist are protected from discrimination under Section 504.

A person with a history of a mental or physical impairment because of misclassification is entitled to protection against discrimination under Section 504. For example, a limited English proficient student mistakenly determined to be eligible for a special program for students who have intellectual disabilities could have been illegally “regarded as” being disabled; or a student with epilepsy might be treated as having an impairment that limits physical activities such as participation on the basketball team when the student actually has no limitation that would affect participation in sports at all.

Others might treat a person with HIV as if a physical impairment existed based simply on the medical condition. Unlike individuals with a current disability, students with a record of a disability or who are regarded as having a disability are not eligible for services and/or accommodations not afforded to the general population, because they do not currently need such services. However, such individuals are protected against discriminatory action based on the recorded or perceived disability. Students described in Prong Three are protected from discrimination under Section 504, even though they are not individuals with a current disability under Section 504 (i.e., Prong One). However, they would not need an accommodation plan because they do not have a current disability and a need for such a plan.

	Discrimination Protection	Disciplinary Safeguards	Section 504 Plan
Disability that substantially limits and requires services	✓	✓	✓
Disability that substantially limits	✓	✓
Disability that does not substantially limit	✓
Record of disability	✓
Regarded as having a disability	✓

Like the Individuals with Disabilities Education Act (IDEA), Section 504 includes a Child Find requirement, which extends to students in private schools and students who are homeschooled. The district is responsible for evaluating students who, because of a suspected disability, need special education and related services under Section 504 (34 CFR §104.35(a)). Districts must annually

• Identify and locate all children in the district’s jurisdiction who are disabled under Section 504 and are not receiving a public education (34 CFR §104.32(a)); and
• Notify students with disabilities and their parents or guardians of the district’s responsibility under Section 504 (34 CFR §104.32(b)).

In Florida, each district is responsible for developing and implementing a multi-tiered system of supports (MTSS) for students who are struggling using a data-based, problem-solving model (Rule 6A-6.0331(1), Florida Administrative Code). Florida’s problem-solving model provides a systematic process for identifying and providing supports for students who need additional assistance. School-based teams (e.g., problem solving, school-based intervention, school leadership) facilitate the identification of off-track students, coordinate the development and implementation of interventions, and monitor the effectiveness of the interventions. When properly implemented, a multi-tiered system of supports addresses the needs of all students and ensures that students with disabilities, including students who are Section 504 disabled, are identified and given appropriate support.

Under Section 504 (34 CFR §104.35), a district is obligated to evaluate students who need or are believed to need special education or related services because of a disability. Provision of interventions through a multi-tiered system of supports does not supplant the district’s responsibility to evaluate under Section 504 (i.e., to conduct Child Find) nor can an evaluation be conditioned on completion of tiers of support in a MTSS/Response to Intervention (RtI) framework.

There are circumstances where referral to the school-based problem-solving/intervention team would not be appropriate (i.e., when the student’s disability clearly requires special education and related services for the student to benefit from education). Further, it would not be appropriate under the Florida’s multi-tiered system of supports to require students with physical conditions (e.g., asthma) who are not demonstrating academic or behavioral difficulties to go through interventions prior to considering whether the student is disabled under Section 504.

Click on the myth below to reveal the reality behind the myth.

MYTH: A student cannot be considered as disabled under Section 504 until the student has completed interventions through the multi-tiered system of supports (Problem Solving/RtI).

Data-based problem solving facilitates the systematic identification of students needing additional assistance and matches the intervention support to student need. The ongoing progress monitoring of student response to instruction and intervention helps identify students who may have a disability (i.e., Child Find) but cannot delay a referral for a Section 504 evaluation when there is evidence that the student may be a student with a disability and in need of services under Section 504.

Referrals for a Section 504 evaluation can be initiated by parents or school personnel and may be based on the student’s response to intervention in a multi-tiered system of supports. In most circumstances, a request for evaluation from the parent or a referral resulting from observation by a classroom teacher triggers the obligation to evaluate a student for problems related to a suspected disability. If the school suspects that the student might be eligible for exceptional student education (ESE) services under IDEA, then an evaluation that meets the IDEA requirements should be conducted. However, there may be students for whom a disability and need for accommodations and supports is suspected that may result in the need to consider whether the student is disabled under Section 504. Examples may include the following:

• Parent or teacher request based on suspicion of a disability;
• Documentation of a physical or mental impairment (e.g., medical diagnosis);
• A known chronic health condition;
• Persistent academic, learning, or behavioral problems;
• Behaviors that result in suspension or expulsion when appropriate behavior management approaches have been ineffective;
• Failure to demonstrate sufficient improvement with evidence-based interventions that are implemented with fidelity;
• Student is evaluated but not eligible for a disability under IDEA (i.e., the student is not sufficiently disabled to meet eligibility criteria or is not in need of ESE services).

Even though 34 CFR §104.36 does not contain a requirement for obtaining parental consent for an evaluation to determine the existence of a disability under Section 504, the Office for Civil Rights (OCR) has interpreted Section 504 to require districts to obtain parental consent for initial evaluation (Letter to Durheim, 27 IDELR 380 (OCR 1997)).

If upon receipt of a parental request for a Section 504 evaluation, the team determines that an evaluation is not required, they must indicate a refusal to evaluate and provide parents with their procedural safeguards (34 CFR §104.36).

Evaluation

Evaluation and disability determinations are made by the Section 504 team, which consists of a group knowledgeable about the student, the meaning of evaluation data, and the placement options (34 CFR §104.35(c). An evaluation under Section 504 is not a full and individual evaluation as required under IDEA. Data used for the evaluation and determination of a disability and required accommodations can be broad and may include, but is not limited to, medical records, school records, standardized test results, classroom observations, and anecdotal records. Section 504 evaluations may encompass record and work sample reviews; direct observation in the natural setting; interviews with the student, parent, and school personnel; and/or administration of more formal assessment measures. If formal tests and other evaluation procedures are used, they must meet the following criteria (34 CFR §104.35(b)):

• Have been validated for the specific purpose for which they are used and are administered by trained personnel.
• Be tailored to assess specific areas of educational need and not merely those designed to provide a single intelligence quotient.
• Accurately reflect aptitude or achievement or whatever else the tests purport to measure rather than reflect the student’s impaired sensory, manual, or speaking skills (unless the test is designed to measure these particular factors).

The evaluation should provide the team information about: 1) the physical or mental impairment at issue, 2) the major life activity or bodily function impacted by the impairment, and 3) the degree to which the impairment substantially limits the major life activity (or activities). This information is critical to the determination of whether the student has a qualifying disability and whether the student needs a Section 504 plan in order to have his/her educational needs met as adequately as those of nondisabled peers.

Section 504 regulations do not specify the time period within which an evaluation must be conducted. Typically, OCR and courts will use a “reasonable amount of time” standard. Absent specific guidelines, and given that Section 504 does not require a full and individual evaluation it would be prudent (though not required) to apply IDEA timelines when conducting Section 504 evaluations.

Click on the myth below to reveal the reality behind the myth.

MYTH: Section 504 requires comprehensive, formal evaluations to determine whether a student is disabled.

Although a Section 504 “evaluation” may include formal assessment, it is not required. Only an evaluation sufficient to provide information to determine the existence of a disability under Section 504 need be obtained. The Section 504 team determines what data is necessary to make the appropriate disability and services decisions.

In the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) Congress created a new rule addressing the impact of mitigating measures during the evaluation and disability determination process. Mitigating measures are services or things provided to the student or used by the student to decrease the impact of an impairment. The ADAAA provides a list of examples of mitigating measures, which includes (but is not limited to) the following:

• 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; or oxygen therapy equipment and supplies;
• use of assistive technology;
• reasonable accommodations or auxiliary aids or services; or
• learned behavioral or adaptive neurological modifications (42 USC §12102(4)(E)).

The ADAAA mitigating measures rule provides that when making the disability determination, “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” Therefore, in determining whether a student has a disability, the Section 504 team must ignore any positive impact of mitigating measures. For example, when determining whether a student with attention deficit hyperactivity disorder (ADHD) is disabled, the Section 504 team must make that determination without considering the positive effects of medication that the student is using.

Click on the myth below to reveal the reality behind the myth.

MYTH: A medical diagnosis is required to determine whether a disability exists under Section 504 for students with characteristics of an attention deficit hyperactivity disorder (ADHD).

Section 504 regulatory provisions require school districts to individually evaluate a student suspected of having a disability and need for services under a Section 504 plan. Although a medical diagnosis of ADHD is one source of data to consider, a medical diagnosis is neither required nor sufficient for establishing a disability under Section 504. If the Section 504 team determines that a medical evaluation is necessary for the team to make the disability and services determination, the district is responsible for providing the medical evaluation at no cost to the parent.

“Periodic” reevaluations must take place for students with disabilities. The district must establish procedures consistent with 34 CFR §104.35(d). A reevaluation procedure consistent with IDEA is one way of meeting this requirement although many districts annually review the disability and services determinations (Frequently Asked Questions about Section 504, OCR 2013).

A Section 504 reevaluation would consist of a review of the Section 504 plan and current data on performance, including classroom grades and assessment information. Reevaluation under Section 504 does not require a comprehensive evaluation and the Section 504 team determines if additional information is required. Additionally, it is best practice to review the student’s Section 504 plan at critical transition times, such as when a student transfers from one school to another, from elementary to middle school, or from middle to high school. Reevaluations under Section 504 are also required before any significant change in placement occurs, such as expulsion, a pattern of serial suspensions that exceeds 10 days in a school year, and significant change in the delivery of educational accommodations or services specified in the Section 504 plan.

An annual review is best practice since school staff, subject matter, and school demands change annually. It is imperative that all staff are aware of responsibilities for implementation of a Section 504 plan. If the student remains disabled, the team should focus on the student’s changing needs due to the effects of different classroom subject matter, school demands, and other factors for the coming school year.

Click on the myth below to reveal the reality behind the myth.

MYTH: A reevaluation under Section 504 must be conducted every three years, just like under IDEA.

A “reevaluation” need only be conducted “periodically” and as necessary under Section 504. OCR indicates that a three-year interval reevaluation as specified under IDEA would satisfy the “periodic” requirement (Frequently Asked Questions about Section 504, OCR 2013). In addition, formal testing may not be required as part of an “evaluation” or “reevaluation” under Section 504. The process of collecting data, reviewing eligibility, and reviewing a Section 504 plan constitutes an evaluation in and of itself.

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. Applying a similar analysis to the mitigating measures issue, OCR wrote the following:

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.

Click on the myth below to reveal the reality behind the myth.

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

Ineligibility under IDEA does not necessarily mean that the student will be disabled or in need of services under Section 504. When a student is found to be ineligible under IDEA, a referral should be made to the Section 504 team for consideration of whether the student is disabled under Section 504 and in need of Section 504 services.

When determining whether a disability exists under Section 504, the team must address three questions.

1. Does the student have a physical or mental impairment?
   The Section 504 team must specify the physical or mental impairment. Medical diagnoses are often helpful, but are not required, nor sufficient for establishing a disability or need for a plan under Section 504. A medical diagnosis or a medication prescription does not by itself establish this.
   
2. Does the physical or mental impairment affect one or more major life activities or bodily functions?
   Identify the major life activities or bodily functions impacted by the impairment and how the impairment impacts functioning. A common error is to limit the analysis to learning and to ignore other major life activities and bodily functions. Learning does not have to be impacted for a student to be disabled under Section 504.
   
3. Does the physical or mental impairment substantially limit the major life activity or bodily function impacted by the impairment?
   Using evaluation data, determine whether the learning and/or accessibility to other school activities are limited and to what extent as compared to the learning and accessibility provided to the average population.

If the answer to these three questions is YES, then the student is disabled under Section 504, and will receive the nondiscrimination protections of Section 504, including periodic reevaluations, procedural safeguards, and manifestation determinations, where applicable.

Once the team has determined that the student is disabled under Section 504, the team must then address whether the student needs an accommodation plan in order to be educated as adequately as his/her nondisabled peers. In determining the need for Section 504 services (i.e., Section 504 plan), the team must answer one additional question:

4. Does the student need Section 504 services in order for his/her educational needs to be met as adequately as nondisabled peers?
   If a plan is needed, the student will receive services that are documented in a Section 504 plan that governs the provision of a Section 504 FAPE.

Click on the myth below to reveal the reality behind the myth.

MYTH: If a parent does not attend a Section 504 meeting, the team cannot proceed with the meeting.

Of course, best practice would dictate that parents be invited to participate in Section 504 meetings, and most districts have incorporated into their Section 504 procedures a requirement to invite parents to attend. As a general rule, however, Section 504 does not require that parents be a part of the Section 504 team or group of knowledgeable persons making Section 504 decisions. If the district’s policy is to invite parents to attend Section 504 meetings, they should always be invited. However, unlike IDEA, there is statutory requirement that parents participate in Section 504 meetings. Thus, a Section 504 meeting may be conducted without the parent.

Pursuant to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the determination of whether an impairment substantially limits a major life activity is required to be made without regard to the ameliorative effects of mitigating measures, such as:

• 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; oxygen therapy equipment and supplies; use of assistive technology;
• Reasonable accommodations or auxiliary aids or services; and
• Learned behavioral or adaptive neurological modifications.

To comply with the mitigating measures rule, the Section 504 team must identify the mitigating measures currently being used by the student. Once identified, the team must determine how the student’s impairment would impact the major life activity at issue in the absence of the ameliorative effects of each mitigating measure. For example, if the student has been diagnosed with ADHD and is medicated (medication is a mitigating measure), the team must determine whether the student’s impairment would substantially limit concentration or learning (or any other appropriate major life activity or major bodily function) if medication were removed. The team must identify each mitigating measure used and determine how the impairment would impact the major life activity without the positive impact of the mitigating measure.

OCR has determined that health plans and emergency plans are mitigating measures. When a student with a health plan or emergency plan is evaluated for the existence of a Section 504 disability, the positive or “ameliorative effects” of the health plan cannot be considered in determining whether the student is substantially limited (in the same manner as discussed previously with respect to medication) and, therefore, disabled (54 IDELR 61, OCR 2009).

Click on the myth below to reveal the reality behind the myth.

MYTH: Learning must be impacted for a student to be Section 504 disabled.

Learning does not have to be impacted for a student to be disabled under Section 504. Learning is one of many major life activities and bodily functions that may be impacted. There may be no substantial limitation in learning, but limitations of other major life activities may affect equal access to educational opportunities (e.g., asthma, physical disability).

The key here is whether the impairment in remission was substantially limiting when active. That question requires the Section 504 team to look back to the time when the impairment was not in remission (as opposed to looking at current data) to make the disability determination. Of course, if the school does not suspect that the student is disabled (and does not know of any impairment in remission) or the student does not demonstrate a need for services, the Section 504 duty to evaluate would not seem to apply, and evaluation would only have to be considered based on a parent referral. Talk with your school board attorney about how to appropriately address child find and evaluation duties for students with impairments in remission.

Historically, OCR has rejected the notion of Section 504 plans for students with records of impairment (Prong Two) or students regarded as impaired (Prong Three). Using these prongs is most often useful in the areas of employment and postsecondary education and apply primarily to discrimination on the basis of a record of an impairment or on the basis of the school’s “regard” of someone as being impaired. It is rare for these prongs to be used in elementary and secondary student education cases. They cannot be the basis upon which the requirement for FAPE is triggered.

Once a student is determined to be disabled under Section 504 and in need of services and accommodations, the Section 504 team will develop a Section 504 plan. Although Section 504 regulations do not specify that a written plan is required, the district must document activities and decisions made regarding students with disabilities (34 CFR §104.35(c); Frequently Asked Questions about Section 504, OCR 2013). Thus, best practice is to put Section 504 plans in writing. A Section 504 plan is not written for a student eligible under the IDEA; all special education and related services and other needed supports are documented on an individual educational plan (IEP) rather than a Section 504 plan for those students.

Although the required components of a Section 504 plan are not prescribed by law, best practice suggests a plan should address the educational impact of the identified disability(ies) and the services and accommodations necessary to facilitate equal access to education in the least restrictive environment.

• To assure information is available from the family, parents should be invited and encouraged to assist in developing the Section 504 plan.
• Services and accommodations should be based on information and data used in the evaluation and disability determination process.
• Services and accommodations should address the student’s identified disability and need to receive services to ensure that the student’s educational needs are met as adequately as those of his/her nondisabled peers.
• The plan should indicate how, where, and by whom the services and accommodations will be provided.
• The plan may include self-management of health conditions in the school setting or school-sponsored activities, if needed.
• The plan may include services and accommodations for the school building, classroom, or transportation; administrative adjustments; academic and instructional accommodations; and/or behavioral intervention and testing accommodations.
• The plan should indicate whether it is an initial plan, a revised plan, or continuation of an existing plan.
• A monitoring system should be developed and responsibilities assigned for implementation.
• Copies of the plan should be distributed to parents, teachers, and any responsible individuals.
• A copy of the plan should be placed in the student’s records.

In general, a student identified as disabled under Section 504 should be provided the same types of accommodations for both classroom assignments and assessments. If a student needs additional time to complete assignments and tests, he or she should also be allowed extended time for classroom tests and standardized tests (if allowable).

Accommodations for testing situations, both classroom and standardized assessments, such as the Florida Standards Assessment (FSA) or end of course (EOC) assessments must be addressed when developing the Section 504 plan and the testing accommodation(s) specified in the written plan. Accommodations used in the administration of standardized tests must be consistent with what is specified in the test administration manual. Allowable testing modifications include the following:

• Flexible scheduling
• Flexible setting
• Recording of answers
• Mechanical aids

Further guidance pertaining to administration of tests to students with disabilities can be found in Rule 6A-1.0943, Florida Administrative Code, and on the Bureau of Exceptional Education and Student Services’ website at http://www.fldoe.org/academics/exceptional-student-edu/beess-resources/presentations-pubs/index.stml. These guides include information about accommodations for EOC assessments.

• Using a predetermined checklist and checking accommodations or services that are not necessary to ensure Section 504 FAPE
• Failing to match services and accommodations with student needs
• Failing to provide copies and an explanation of the Section 504 plan to everyone responsible for implementation
• Writing vague plans
• Providing minimal or no monitoring of the implementation of the plan
• Failing to get school administration involved with monitoring of Section 504 plan implementation
• Developing a Section 504 plan for a student with an IEP

Section 504 requires school districts to conduct an evaluation of any student who, because of a disability, “needs or is believed to need special education or related services” (34 CFR §104.35(a). A student’s physical or mental impairment does not have to substantially limit the major life activity of learning for the student to be considered disabled under Section 504. Thus, students with physical impairments, such as diabetes, asthma, allergies, or epilepsy, may be Section 504 eligible if their impairment substantially limits one or more major life activities or major bodily functions, even if the impairment does not limit learning.

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) does not allow the consideration of mitigating measures when determining whether a student has a disability; therefore students with medical conditions who were not previously considered under Section 504 to be disabled because they received health services through an individual health care plan (IHCP) may now be considered disabled for purposes of ensuring for protections and the provision of any services that may be necessary under Section 504. Because the Office for Civil Rights (OCR) has determined that IHCPs are mitigating measures, the provision and implementation of an IHCP may not fully satisfy all of the requirements of Section 504. Districts that only implement IHCPs for students with qualifying disabilities are in danger of violating Section 504’s procedural safeguards, especially if students with IHCPs are categorically excluded from consideration for a Section 504 disability determination or services. The determination of whether students with IHCPs are disabled and, therefore protected from discrimination under Section 504, or for a Section 504 plan over and above the IHCP, should be made on an individual case-by-case basis.

Click on the myth below to reveal the reality behind the myth.

MYTH: A student whose health care needs are addressed by an IHCP is not eligible for protections or services under Section 504.

Students with qualifying disabilities, including medical conditions and health impairments, may be eligible for protections and services under Section 504 if the disability substantially limits a major life activity (not limited to learning) or major bodily function. Since an IHCP is triggered by the presence of a health condition, the 504 team should consider whether a student with an IHCP is disabled and in need of services under Section 504 on a case-by-case basis.

Students who have IHCPs cannot be categorically excluded from consideration under Section 504 just because they are receiving health services via an IHCP. Given the scope of the definition of disability under Section 504 after the passage of the ADAAA, districts should reconsider whether students previously not considered disabled or in need of services under Section 504, because the needs were met though an IHCP, are disabled under the expanded definition and whether the student may also be in need of Section 504 services or procedural protections under Section 504.

When determining whether to refer a student with an IHCP for a Section 504 disability determination, the school should consider whether the student needs Section 504 special education and related services because of a health-related impairment.

When evaluating a student with an IHCP, the Section 504 team must determine whether the student would be substantially limited by his or her impairment without the provision of services listed in the student’s IHCP or any other mitigating measure utilized by or for the student. This analysis must be conducted to satisfy the mitigating measures rule contained in the ADAAA. The Section 504 team should carefully review and consider all available medical and nursing information, as well as other relevant data gathered from a variety of sources. The Section 504 team should consider all relevant educational factors for each student individually, as well as, the following factors:

• Frequency of IHCP services
• Intensity of the required IHCP services
• Complexity of the required IHCP services
• Health and safety risk to the student if IHCP services are not provided or are provided incorrectly

If the student is disabled under Section 504 because the student has a physical or mental impairment that substantially limits a major life activity, the Section 504 team must then determine whether the student needs a Section 504 plan. Once a district determines that a student has a Section 504 disability, the use of mitigating measures (e.g., IHCP) may be relevant in determining whether the student needs a plan to have his or her educational needs met as adequately as the needs of nondisabled students. While the ameliorative effects of the IHCP cannot be considered in determining whether a particular student has a disability under Section 504, the IHCP can be considered in determining whether the student is in additional need of a Section 504 plan. The extent of a school district’s obligation to make reasonable modifications or to provide educational accommodations is fact dependent and requires a case-by-case analysis. Not every student with an IHCP that is determined to be disabled will need a Section 504 plan.

If the team determines that the disabled student with an IHCP requires, in addition to an IHCP, educational accommodations or services to address academic, social, emotional, physical or behavioral needs in order to meet the student’s educational needs as adequately as those of nondisabled students are met, the student would be entitled to a Section 504 plan. Even if the student does not need a plan, the student will receive the procedural protections afforded to students who have a qualifying disability under Section 504 and cannot be discriminated against solely on the basis of his or her disability.

To be in compliance with Section 504’s notice provision, school districts must provide public notification of their policies of nondiscrimination, identify the person who coordinates compliance within the district, and adopt grievance procedures (34 CFR §104.36).

Procedural safeguards that are established to ensure that parents and guardians are fully informed about their rights under Section 504 include the following:

• Taking part in and receiving benefits from public education programs without discrimination because of disability (34 CFR §104.33 (a));
• Receiving notice of rights under this federal law (34 CFR §104.36);
• Receiving notice with respect to identification, evaluation, or placement (34 CFR §104.36);
• Receiving a free appropriate public education with nondisabled students to the maximum extent appropriate (34 CFR §104.34(a)); it also includes the right to have the school district make reasonable accommodations to allow an equal opportunity to participate in school and school-related activities (34 CFR §104.4(b)(2));
• Being educated in facilities and receiving services comparable to those provided to nondisabled students (34 CFR §104.34(c));
• Having an appropriate education designed to meet individual educational needs as adequately as the needs of nondisabled students (34 CFR §104.33(b)(1)(i));
• Having evaluation, educational, and placement decisions made based on a variety of information sources and by a group of persons, including persons who know the student, the evaluation data, and placement options (34 CFR §104.35(c));
• Having transportation provided to and from an alternative placement setting at no greater cost than would be incurred if the student were placed in a program operated by the district (34 CFR §104.33(c)3(2));
• Having an equal opportunity to participate in nonacademic and extracurricular activities offered by the district (34 CFR §104.37(a));
• Examining all relevant records relating to decisions regarding a child’s identification, evaluation, educational program, and placement (34 CFR §104.36);
• Requesting an impartial due process hearing related to decisions or actions regarding identification, evaluation, educational program, or placement (34 CFR §104.36)
• Filing a local grievance with respect to alleged disability discrimination with the district’s designated Section 504 Coordinator (34 CFR §104.36).

A sample of procedural safeguards, Notice of Rights for Disabled Students and their Parents Under Section 504 of the Rehabilitation Act of 1973, is located in Appendix E of the District Implementation Guide for Section 504.

Elementary and secondary educational programs are required to establish and implement a system of procedural safeguards with respect to the identification, evaluation, or provision of services under Section 504 (34 CFR §104.36). This system includes notice, an opportunity for the parents or guardian to examine relevant records, an impartial hearing with the opportunity for participation by the parent or guardian and representation by counsel, and a review procedure. Individuals disagreeing with the identification, evaluation, and/or provision of services have several options available under Section 504, including:

• Filing a complaint or grievance through the district’s discrimination complaint procedure (required under Section 504 and the Florida Educational Equity Act)
• Requesting a hearing before an impartial hearing officer
• Filing a complaint with the Office for Civil Rights (OCR)

Review Procedure

Should the parent disagree with any decision made through the impartial hearing process regarding the identification, evaluation, or placement decision of a Section 504 team or the decision of a Section 504 hearing officer, the parent may appeal to state or federal court, as specified in the school district’s Section 504 procedures.

OCR Complaints

Parents may also file a complaint alleging disability discrimination with the:

Office for Civil Rights
U.S. Department of Education
Atlanta Federal Center, Suite 19T10
61 Forsyth Street, S.W.
Atlanta, GA 30303-8927
Telephone: (404) 974-9406
Fax: (404) 974-9471; TDD: (800) 877-8339
Email: OCR.Atlanta@ed.gov

Click on the myth below to reveal the reality behind the myth.

MYTH: OCR investigates every complaint that it receives alleging disability discrimination by a school district.

OCR revised its enforcement policy in or around 1994 such that it no longer investigates every complaint it receives. Instead, it screens incoming complaints for, among other things, substantive merit.

Section 504 regulations also direct school districts to adopt grievance procedures that incorporate due process standards and provide “prompt and equitable resolution” of any complaints regarding alleged discrimination under Section 504. What precisely is required in terms of the development and maintenance of a Section 504 grievance procedure is within the discretion of the school district. Best practice is typically found to be the use of the district’s formal grievance procedure for other complaints of discrimination. With respect to such procedures, OCR has indicated that a compliant grievance procedure should include the following:

• Reasonable time frames
• The opportunity to present evidence
• Notification of the findings
• An appeal process

School districts should have a written grievance procedure to address alleged complaints of discrimination under Section 504. Section 504 regulations require such a procedure if the district has at least 15 employees. This procedure can serve as a mechanism for resolving Section 504 complaints in lieu of the costly involvement of OCR, due process hearings, and courts (34 CFR §104.7).

The pertinent Section 504 regulations only provide that the grievance procedures incorporate “appropriate due process standards” and be “prompt and equitable.” The following checklist provides best practices criteria for 504 grievance procedures (34 CFR §104.7):

• The district has adopted an appropriate grievance procedure.
• The district shows that this procedure is generally available (e.g., in a parent handbook).
• The procedure extends to not only student education issues, but also any individual’s complaint relating to the other applicable aspects of Section 504, including nonacademic services, preschool and adult education programs, employment, and facilities (including communications).
• The district’s grievance procedure is separate from and not confused with other complaint-resolution mechanisms, such as a student’s right to an impartial Section 504 due process hearing and any individual’s right to file an OCR complaint.
• The procedure has a minimum of two, preferably three, levels, typically starting with a relatively informal step and ending with a formal central office (or in small districts, school board) appellate decision.
• The procedure includes expeditious and adequate investigation by the designated Section 504 coordinator.
• The procedure specifies time lines (e.g., five working days) for prompt processing of complaints with a written reply to the grievant at each level.

Click on the myth below to reveal the reality behind the myth.

MYTH: Under Section 504 parents have the right to an independent educational evaluation (IEE) at public expense.

Section 504 does not include a requirement granting parents the right to obtain an IEE at public expense. However, districts must consider information from a variety of sources, including independent evaluations.

The Florida Department of Education has made school safety one of its highest priorities. The safety and discipline of students with disabilities is of major concern in this area. Some educators are under the misconception that current law prohibits disciplining students with disabilities. Others are unclear about the procedural safeguards afforded to students with disabilities and the flexibility that schools and districts have in disciplining them.

Regulations under the IDEA have provided increased flexibility to school districts in disciplining students with disabilities while preserving essential protections and rights afforded to them. IDEA and its regulations are mentioned here by reference because the OCR maintains a policy of reviewing IDEA and related case law by analogy in determining whether due process and other free appropriate public education (FAPE) standards have been met under Section 504 and ADA.

Click on the myth below to reveal the reality behind the myth.

MYTH: A student covered by Section 504 is not entitled to any special rules of discipline.

Special rules of discipline apply to all students with disabilities to ensure that they are not discriminated against on the basis of their disability. Excluding students from school because of behavior related to the disability is a discriminatory practice prohibited by Section 504. The discipline rules regarding changes of placement, patterns of exclusion, and manifestation determinations are founded on nondiscrimination principles. Manifestation determinations are designed to identify situations in which removal would be discriminatory on the basis of disability and to protect the student from discriminatory removals of educational services via the use of traditional disciplinary removals.

When the exclusion of a student with a disability is permanent, for an indefinite period of time, or for more than 10 consecutive school days, OCR generally considers the exclusion to be a significant change in placement that would trigger the requirement for a manifestation determination. Additionally, a series of suspensions within a school year that exceeds 10 cumulative days may create a pattern of exclusions that OCR would consider to constitute a significant change in placement. Whether serial suspensions constitute a change in placement, however, must be determined on a case-by-case basis and by considering factors such as length of each suspension, the proximity of suspensions to one another, and the total amount of time the student is excluded from school.

An in-school suspension (ISS) may constitute a significant change in placement if it results in a removal of the services or educational program that the district must provide to the student with a disability. The critical question is whether the ISS is the educational equivalent of an out-of-school suspension — that is, whether the student is denied educational services during the period of suspension.

The use of ISS is also to be considered when determining whether a significant change in placement has occurred as a result of disciplinary sanctions. When in-school suspensions result in the student’s removal from the educational program and/or there is failure to provide services as specified in a student’s Section 504 plan, then the ISS would be counted in determining whether a significant change in placement has occurred.

Schools seeking to use the ISS exception should become familiar with the following commentary from the U.S. Department of Education in the IDEA regulations of 2006. The commentary explains that three factors are critical should the school seek to use ISS and not count the days toward a pattern of exclusion. The commentary provides that:

…it has been the Department’s long-term policy that an in-school suspension would not be considered a part of the days of suspension addressed in §300.530 as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s individual educational plan, and continue to participate with nondisabled children to the extent they would have in their current placement (71 Fed. Reg. 46715).

A final note: The exception appears focused on ISS placements made for a few days at a time. It should not be read as a mechanism to justify long-term ISS placement, even if the three requirements are met.

Click on the myth below to reveal the reality behind the myth.

MYTH: Students covered by Section 504 cannot be expelled.

Students with Section 504 plans can be expelled, but care must be taken not to do so in a discriminatory manner. Manifestation determination prior to a change in placement protects the student with a disability from discriminatory discipline. If the behavior is related to disability, no expulsion can occur. Students whose behavior is not a direct result of his/her disability are subject to the same discipline procedures as students without disabilities.

The IDEA uses the term “manifestation determination” to mean the evaluation of the relationship between a student’s disability and act of misconduct that must be undertaken when a district proposes to change the student’s placement by imposing disciplinary removals. Under Section 504, a district is required to conduct a manifestation determination before suspension or expulsion of a student with a disability if the disciplinary action constitutes a significant change in placement.

The requirement to conduct a manifestation determination under Section 504 requires school districts to conduct an “evaluation” in accordance with 34 CFR §104.35(b) prior to any subsequent significant change in placement as noted in 34 CFR §104.35(a). If disciplinary actions constitute a significant change in placement, a school district must conduct a reevaluation of the student. In a disciplinary context, the reevaluation process is to include a determination of whether the misconduct is related to the student’s disability. This determination is made prior to implementing a disciplinary removal of more than 10 consecutive school days or a pattern of short-term removals that cumulate to more than 10 school days in a year that would constitute a significant change of placement.

The requirement that the Section 504 team complete a discipline review is found in 34 CFR §104.35(c). Per a memorandum to chief state school officers (“Questions and Answers on Disciplining Students with Disabilities,” OCR, April 1995), parents must be given an opportunity to provide input into the manifestation determination, as persons uniquely knowledgeable about their child’s disability. As with any placement meeting, parental participation in the manifestation determination meeting is a practical and effective means of obtaining the information 34 CFR §104.35(c) requires. Parents must be given notice of the results of the manifestation determination and of the available procedural safeguards. Persons knowledgeable about the student may include the persons involved in the evaluation process or individuals who have sufficient knowledge regarding the student, the meaning of the evaluation data, and the placement options (34 CFR §104.35(c)). This knowledgeable group should determine whether the conduct in question was caused by or had a direct and substantial relationship to the student’s disability.

An additional question to ask is, was the conduct in question the direct result of the school’s failure to implement the student’s Section 504 plan? If either of these standards is met, the group concludes that the behavior is a manifestation of the disability. In making this determination, the group takes into account the appropriateness of the student’s placement and whether the school’s failure to provide aids and services or strategies identified in the student’s Section 504 plan directly resulted in the behavior at issue.

If it is determined that the misbehavior is a manifestation of the disability, the student may not be expelled or suspended for more than 10 days (OSEP Memorandum 95-16). School officials should review the student’s current educational placement to determine appropriateness and whether behavioral intervention strategies should be implemented. Changes in the student’s placement may be appropriate subject to applicable procedural safeguards.

When the determination is that the misconduct is not caused by the disability, the district may suspend for more than 10 days or expel the student, consistent with the district’s Student Code of Conduct applicable to all students.

The illegal use of drugs is not included in the definition of a student with a disability under Section 504; therefore, current illegal drug users are excluded from Section 504 disciplinary protections. A student with alcoholism (which, for purposes of this issue, is defined as a student addicted to the use of alcohol) may meet the definition of a student with a disability under Section 504 and be eligible for protection and services. Nevertheless, that protection does not provide immunity for use of alcohol in violation of the district’s Student Code of Conduct.

Section 504 allows districts to apply the same disciplinary consequences for students with disabilities who are currently using drugs or alcohol as would be applied to students without disabilities. If a student with a disability under Section 504 is currently engaged in the illegal use of drugs or alcohol, the district may take disciplinary actions consistent with the district’s Student Code of Conduct. No manifestation determination or due process procedures are required.

Possession of drugs or alcohol does not result in loss of protection unless the student is currently using. A student with a disability who is not currently using drugs or alcohol who commits a drug or alcohol offense is afforded Section 504 protections, including the right to a manifestation determination (29 USC §705(20)(C)(iv)).

A person with a disability who formerly used drugs illegally is protected under Section 504 and ADA if not currently engaging in illegal use of drugs. The person is protected if the individual has successfully completed a supervised rehabilitation program and is no longer engaging in drug use or the person is participating in a supervised rehabilitation program and is not engaging in such use (29 USC §705(20)(C)(ii)).

Click on the myth below to reveal the reality behind the myth.

MYTH: A student whose disability affects behavioral control can never be suspended or expelled.

Just because a student has a disability affecting behavioral control does not mean that everything that the student does is directly caused by a disability. If the behavior is not a manifestation of the disability, the disciplinary action may be the same as would be applied to a nondisabled student.

School personnel are authorized to take disciplinary action if the student carries or possesses a weapon, or has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a state or Local Education Agency. A student with a disability who carries or possesses a weapon or inflicts serious bodily injury can be removed immediately for up to 45 school days without regard to the direct connection between disability and behavior, but the manifestation process must still take place. If the behavior is determined to be a manifestation of the disability, the Section 504 team will need to conduct a functional behavioral assessment and develop a behavior intervention plan.

If it is determined that the behavior is not a direct result of the disability, the student is subject to the same consequences as would be applied to a student without a disability and removal can exceed 45 school days as long as the term is consistent with that applied to a nondisabled student committing the same infraction.

According to OCR, bus suspensions are not counted when they do not prohibit attendance at school and when bus transportation is not covered by the student’s Section 504 plan (OCR Case 03-97-1006). This position takes into account that suspension from the bus is not suspension from the educational program or FAPE services; the student is still required and permitted to attend school and participate in his/her educational program and receive all FAPE services. However, school districts should consider whether behavior on a school bus is similar to behavior in the classroom and needs to be addressed in the Section 504 plan.

	Section 504	IDEA 2004
General Purpose	Civil rights law that protects the rights of individuals with disabilities in programs that receive federal financial assistance from the U.S. Department of Education (USDOE).	Federal funding statute whose purpose is to provide financial aid to states in their efforts to ensure adequate and appropriate educational services for children with disabilities. (34 CFR §300.1)
Individuals Covered	Individual currently has or has a record of a physical or mental impairment that substantially limits one or more major life activities, or is regarded as having an impairment. The disability need only substantially limit one major life activity for the student to be considered disabled for educational purposes.	Children ages 3–21 who meet the definition of one of the specific disabilities applicable to school-age children.
Definition of a Disability	Much broader than the IDEA since it contains no categorical listing of disabling conditions. Section 504 defines disability as follows: physical or mental impairment means (A) 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 (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities (34 CFR §104.3(j)(2)(i)). The impairment need not necessarily affect the student’s major life activity of learning to constitute a disability.	Includes the following categories of educational disabilities: intellectual disability, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, and specific learning disabilities. The IDEA lists specific eligibility criteria that may entitle a child or student to receive special education services as outlined under the law and school board policy. Additionally, for a student to qualify under IDEA, the disabling condition must result in a need for special education and related services.
Age Eligibility	Applies to qualified persons with a disability at all educational levels, including preschool, elementary, secondary, postsecondary, vocational, and adult education programs and in all activities that receive or benefit from federal financial assistance.	Applies to all eligible individuals with a disability living in a school district’s attendance area, ages birth through 21 years of age.
Funding	Does not provide funding for the provision of any services.	Provides federal funding for the education of IDEA-eligible students with disabilities.
Compliance/ Enforcement	The USDOE’s Office for Civil Rights (OCR) monitors and enforces.	Oversight and monitoring by the USDOE’s Office of Special Education Programs. The FDOE and the USDOE Office of Special Education Programs monitor compliance.
	The Florida Department of Education (FDOE) does not resolve Section 504 complaints.	The FDOE investigates complaints, monitors compliance, conducts state-sponsored mediation, and tracks due process hearings.
	Noncompliance may result in loss of all federal funds.	Noncompliance may result in loss of IDEA funds and state aid and/or implementation of corrective action.
Consequences for Noncompliance	If an agency receives federal funding for any program, it must comply with the requirements of Section 504 or all federal funds may be jeopardized.	If the receiving agency does not comply with the provisions of IDEA, these funds may be forfeited and/or corrective actions taken.
Program Access	No qualified individual with a disability shall, because a recipient’s facilities are inaccessible or unusable by disabled individuals, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity.	Each public agency shall take steps to provide academic and nonacademic services and activities in such manner as is necessary to afford children with disabilities an equal opportunity for participation in those services and activities.
Notice	Requires notice to the parent or guardian with respect to identification, evaluation, and/or placement. Written notice is not required, but is indicated by good professional practice. Requires notice before a “significant change” in placement.	Requires prior written notice to the parent or guardian with respect to identification, evaluation placement, and/or free appropriate public education (FAPE). Delineates required components of written notice.
Consent	Requires consent for evaluation if additional assessments are needed.	Requires written, informed parental/guardian consent before conducting an initial evaluation or reevaluation of the child and before providing special education and related services to a child with a disability.
Responsibility to Provide a FAPE	Requires the provision of a FAPE to eligible students covered under the law. Although a written plan is not specifically required, documentation of evaluation procedures and accommodation or service decisions is best practice, as OCR tends to prefer a written plan to demonstrate and ensure FAPE.	Requires the provision of a FAPE to eligible students covered under the law, including specially designed instruction and related services. Requires a written IEP with specific content and specified participants at the IEP meeting.
	“Appropriate education” means an education that meets the educational needs of a disabled student as adequately as those needs are met for nondisabled students. Related services alone may be the accommodations under Section 504.	“Appropriate education” means a program, including specially designed instruction, designed to meet the student’s individual needs and meets the standards of the Local Education Agency (LEA). Related services are provided if required for the student to benefit from specially designed instruction.
Least restrictive environment	The general educational environment.	To the maximum extent appropriate, students receive services in the general education setting. The placement of students with disabilities in special classes, separate schools, or other removal from the general educational environment occurs only when the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be satisfactorily achieved.
Members of decision-making team	Group of individuals knowledgeable about the student, evaluation results, and placement options. Parents are not required, but it is considered best and common practice to include them.	Specific membership of the individual educational plan (IEP) team is specified in IDEA. Teams frequently consist of parent, evaluator, general education teacher, representative of LEA, special education teacher, others as invited.
Evaluation	Evaluation draws on information from a variety of sources in the area of concern; decisions made by a group knowledgeable about the student, evaluation data, and placement options. Requires notice, with written parental consent being best practice.	A full and individual evaluation is required, assessing all areas related to the suspected disability. Trained and knowledgeable personnel are to administer an evaluation. Requires informed consent before conducting an initial evaluation.
Eligibility Procedures	When evaluation data are interpreted and accommodation decisions made, the law requires the following: • Draw upon information from a variety of sources. • Assure that all information is documented and considered. • Ensure that a group of persons including those who are knowledgeable about the child, the meaning of the evaluation data, and service options makes the relevant decisions.	When evaluation data are interpreted and placement decisions made, the law requires the following: • Draw upon information from a variety of sources. • Assure that all information is documented and considered. • Ensure that a group of persons including those who are knowledgeable about the child, the meaning of the evaluation data, and placement options makes the eligibility decision.
Placement	Student is educated with his or her nondisabled peers in the least restrictive environment.	Obtain parental consent prior to provision of special education and related services. Placement decision based on IEP. Ensure that the student is educated with his/her nondisabled peers to the maximum extent appropriate in the LRE. Convene an IEP review meeting before any change in placement.
Reevaluation	Requires “periodic” reevaluations. While a triennial schedule for reevaluation will suffice, it is typical for districts to review Section 504 plans annually. Reevaluation is required before a significant change in placement. Reevaluation does not require a comprehensive evaluation. The reevaluation may be a review of current data on student progress. The Section 504 team determines if additional information is required.	Requires triennial reevaluation; review of existing data is used to determine what, if any, additional information is required. A formal reevaluation is not required before a significant change in placement, but a review of current data is recommended. Informed parental consent is required for administration of a formal assessment through the reevaluation process, unless school district can show parent did not respond to attempts made.
Independent Educational Evaluation (IEE)	No provision for independent evaluations at district expense. District should consider any evaluations presented.	Provides for IEE at district expense if parent disagrees with evaluation obtained by school district.
Drug and Alcohol Use	Schools may take disciplinary action pertaining to use or possession of illegal drugs or alcohol against any student to the same extent such disciplinary action is taken against students who are not disabled. No due process procedures are required for students currently engaged in the illegal use of drugs or alcohol.	IDEA rules of discipline apply.
Protection Against Retaliation	Incorporates prohibition against retaliation, intimidation, coercion, threats, and discrimination found in regulations under Title VI of Civil Rights Act.	Civil rights protections under Section 504 and the ADA apply.
Self-Evaluation by Recipient	Requires recipients to conduct a self-evaluation to identify discriminatory policies and practices.	None.
Internal Grievance Procedure	Requires districts with 15 or more employees to designate a Section 504 compliance officer and a grievance procedure to investigate complaints alleging noncompliance with Section 504.	State complaint procedures required. Prior to due process, district must offer early resolution.
Discipline	District should review all pertinent data regarding the child prior to any disciplinary removal for more than 10 days. If the behavior is caused by the student’s disability, the student may not be removed for more than 10 consecutive school days unless the behavior is drug/alcohol related. If determined behavior was not a manifestation of a disability, the student may be disciplined the same way a student without a disability is disciplined.	Any disciplinary removal of more than 10 consecutive days is a significant change of placement triggering the procedural safeguards of IDEA, including the right to remain in the current educational placement pending appeal. Cumulative removals of more than 10 school days within the school year may be considered a change of placement and thus trigger the procedural safeguards under IDEA. FAPE cannot be terminated as a disciplinary measure.
Due Process	Requires districts to provide impartial hearings for parents or guardians who disagree with the identification, evaluation, or placement of a student. Requires that the parent have an opportunity to participate and be represented by counsel. Other details are left to the discretion of the local school district. Policy statements should clarify specific details.	Requires districts to provide due process hearings for parents or guardians who disagree with the identification, evaluation, or placement of a student. Delineates specific requirements.
Exhaustion of Due Process Remedies	Administrative hearing not required prior to OCR involvement or court action; compensatory damages possible.	Requires the parent or guardian to pursue administrative hearing before seeking redress in the courts.

• Qualified persons with disabilities may not on the basis of disability be denied admission to or be subjected to discrimination in admission or recruitment by a recipient (34 CFR §104.42).
• With respect to postsecondary and vocational education services, a qualified person is one with a disability who meets the academic and technical standards requisite to admission or participation in the educational institution’s educational program or activity (34 CFR §104.3(l)(3)).
• Postsecondary educational institutions may not use any test or criterion for admission that has a disproportionate adverse effect on persons with disabilities unless it has been validated as a predictor of academic success and alternate tests or criteria with a less disproportionate, adverse effect are shown by the Department not to be available (34 CFR §104.42(b)(2)).
• Admissions tests are selected and administered to applicants with impaired sensory, manual, or speaking skills in such a manner as is necessary to avoid unfair distortion of test results (34 CFR §104.42(b)(3)(i)).
• Admissions tests must be administered in facilities that on the whole are accessible (34 CFR §104.42(b)(3)(iii)).
• Generally prohibited are pre-admission inquiries as to whether an applicant has a disability. Confidential inquiries may be made after admission as to disabilities that may require accommodation (34 CFR §104.42(b)(4)).

• No qualified individuals with disabilities shall be excluded on the basis of disability from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any postsecondary education program or activity (34 CFR §104.43(a)).
• A recipient institution cannot exclude qualified students with disabilities from any course, course of study, or other part of its education program or activity on the basis of disability (34 CFR §104.43(c)).
• Recipient postsecondary institutions are required to operate their programs and activities in the most integrated setting appropriate (34 CFR §104.43(d)).

• A recipient institution must make certain adjustments to its academic requirements and practices if they discriminate or have the effect of discriminating against a student because of that student’s disability. Academic requirements that the recipient can demonstrate are essential to the instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section (34 CFR §104.44(a)).
• Recipient postsecondary institutions may not impose rules that have the effect of limiting the participation of students with disabilities in the education program (34 CFR §104.44(b)).
• Course examinations or other evaluation procedures shall be administered to qualified students who have disabilities that impair their sensory, manual, or speaking skills in such a manner that the results of the evaluation represent the student’s achievement in the course rather than reflection the student’s impaired sensory, manual, or speaking skills (except where such skills are the factors that the test purports to measure 34 CFR §104.44(c)).
• A recipient institution must ensure that no student with a disability is subject to discrimination in the recipient’s program because of the absence of necessary auxiliary education aids (34 CFR §104.44(d)).

• Recipient postsecondary institutions are required to provide housing to students with disabilities at the same cost as provided to other students and in a convenient, accessible, and comparable manner (34 CFR §104.45(a)).

• Recipient institutions may not provide less financial assistance to or limit the eligibility of qualified persons with disabilities for such assistance, whether the assistance is provided directly by the recipient or by another entity through the recipient’s sponsorship (34 CFR §104.46(a)).

• Recipient institutions will observe the established nondiscrimination standards for physical education and athletics, counseling and placement services, and social organizations (34 CFR §104.47; same standards as §104.38 of subpart D).

(Transition of Students with Disabilities to Postsecondary Education: A Guide for High School Educators, OCR 2011)

The following information is provided to assist the reader in understanding the transition from secondary education to postsecondary education.

1. Postsecondary students are responsible for self-identifying and requesting accommodations and services as needed.
   Postsecondary institutions will not ask whether a student has a disability (e.g., on registration forms). Students must self-identify and discuss their special needs with appropriate staff to receive services.
2. Postsecondary students are now accommodated as “adults.”
   This means that the students must have been assessed as an adult, using adult standards. Generally, postsecondary education institutions require assessment to be completed within the past three years by a licensed professional. Students requiring accommodations for the SAT or ACT should review established eligibility criteria with the respective organizations. Students should check with the postsecondary institution they are planning to attend to ensure that their documentation is complete.
3. Many of the laws (such as ADA and 504) covering disability services in high school are the same in postsecondary (although the regulations require more self-advocacy and action by the post-secondary student). A primary difference is the handling of the Family Education Rights and Privacy Act of 1974 (FERPA, also known as the Buckley Amendment).
   Students have the right to know about the purposes, content, and location of information kept as part of their education records. Students also have a right to expect that information in their educational records will be kept confidential or disclosed only with their permission or under provisions of the law. They also have the right to gain access to and, in some cases, challenge the content of their educational records. The postsecondary institution will require that written permission and release forms be signed by the student in order to share educational records with other individuals or entities, even the parent. The exception being for students who are still claimed as dependents on the parents’ income tax filing.
4. Students should make contact with the disability services providers at the postsecondary institution as soon as possible.
   Students should contact postsecondary institutions prior to enrollment to determine what services are available and to ensure that the appropriate documentation is submitted. If students are applying to more than one institution, they should contact all offices involved as there may be different documentation requirements.
5. Accommodations in college may be different than the accommodations received in K–12. For instance, postsecondary institutions are not required to provide personal accommodations.
   If there are questions, students should always approach the disability service provider office for further information.
6. Procedures are set in place for students to appeal if they have been discriminated against at a postsecondary institution.
   Students should check their college catalog and/or student handbook from the postsecondary institution for details regarding the availability of an appeal process.