OVERVIEW OF SECTION 504

13 Aug

 

 

            Sec. 504 is a civil rights law and not a special education law. Its purpose is to protect individuals with disabilities from discrimination related to their disability in programs or activities that receive Federal financial assistance. SEC. 504 ensures equal, non-discriminatory access to the existing educational process, it does not provide a special or unique educational curriculum or related services. To be eligible for the  protections under Sec. 504 an individual must have a physical or mental impairment that “substantially limits  at least one major life activity.” While this statutory measure for identifying a “disability” is vague at best it has been held that such measures should be broadly applied and should not require “extensive analysis.”

          Sec. 504’s disabling qualifications include “specific learning disabilities” which impair activities such as reading or learning. Further, any such impairments are to be considered without regard for the potentially ameliorative effects of mitigating measures (such as medication, assistive technologies, informal accommodations, etc). In this same vein, a student’s academic success alone is not an indicator sufficient to determine that the child does not have a qualifying disability under Sec. 504 or is not a person with a disability entitled to Sec. 504 accommodations.  Congress has specifically rejected the assumption that a child with a specific learning disability,  who performs well academically, cannot have substantially limiting disabilities in activities such as learning and reading. This is because grades alone fail to provide any information as to mitigating factors such as an individuals own adaptive strategies or how medication or other outside resources are required for the student to achieve the grades.

          Sec. 504 requires  all reasonable modifications or accommodations necessary to provide the disabled child equal  “access to an education.” It includes such things as :

          Presentation:              Provide audio tapes, larger print, oral                                           instructions, repeat directions

          Responses:                Allow verbal responses, provide a scribe                                              to record verbal responses, allow                                                 responses via computer or tape recorder

          Timing/scheduling:   Allow frequent breaks, extended time

          Setting :                       Provide special settings, small group settings,                                               private room

          Equipment/materials :  Provide computers, amplification equipment,                                             manipulative      

Lastly, of note is the fact that no federal or state funds are associated with the provision of services under Sec. 504.

SEC. 504 CONTRAST WITH IDEA

          By way of contrast, the Individuals with Disabilities Education Act (IDEA) is a broad special education law. Children who qualify for special education services under IDEA are automatically protected under Sec. 504 and are eligible to receive all Sec. 504 required “reasonable accommodations” or “modifications.” However, the reverse of this is not necessarily true. That is, a child under a Sec. 504 Plan alone, does not automatically qualify for the broad protections provided by IDEA.

          When evaluating the potentially beneficial aspects of these two statutes for your child there is a common misunderstanding  that special education services under IDEA require a special education setting, while Sec. 504 protections allow a child to stay in their regular class room . This is not accurate. While Sec. 504 accommodations are almost always provided in the general classroom setting, IDEA also requires the application of special education services in the “least restrictive environment .“ This includes receipt of services with non-disabled children in the regular classroom whenever possible.      

EVALUATION REQUIREMENTS 

          Sec. 504 does not set out specific circumstances that trigger the school’s obligation to conduct an evaluation. Such a decision is governed by the individual circumstances in each case. If a school does not believe that a child is disabled an evaluation is not required.  In this regard it is important to remember that the particulars related to the actual implementation of the Sec. 504 eligibility remain at the discretion of the local education body. However, in the event of such a non-testing/non-eligibility decision, the parent’s  must be informed of the decision and  be allowed to examine the child’s records. The parents must also must be informed of their due process appeal rights . Such appeal rights may include mediation (if all parties agree). Lastly, an impartial hearing appeal is always available. This allows the parents an opportunity to participate and obtain legal counsel if they desire. 

          If however, the school “believes” or “has reason to believe” that a student has a qualifying Sec 504 disability they must evaluate the student. Such belief could be based upon such things observations/opinions by the school staff or a parental request for an evaluation. Further, such an evaluation always must be conducted before any action is taken with respect to a child’s initial placement  or before there is any change in placement.

          A parental request for a Sec. 504 evaluation should be in writing and addressed to the School’s 504 Coordinator and the Principal (the principal frequently serves as the Coordinator). The request should identify the specific reasons as to why the child qualifies for a Sec. 504 plan, as well as the specific 504 accommodations to which the child is entitled. If you have documentation that supports your request it is helpful to include it. However, given that the implementation of so much of Sec. 504 is left up to the local schools, it is important to obtain a copy of the schools policies/procedures and procedural safeguards before making such an evaluation request or attempting to enforce any of the due process procedural rights.

          For such an evaluation the school is required to assemble and use a team of persons knowledgeable about the student and draw upon varied sources of information. While there is no requirement under Sec. 504 that the parents be allowed to actually participate in making these decisions, many school systems do involve them in the process.  Further, while a Sec. 504 Plan does not have to be in writing, the parents must be provided with notice of actions affecting  the evaluation, identification and placement of the child. Additionally, any decision regarding Sec 504 eligibility and related services must be documented in the student’s file. If a Sec. 504 Plan is actually provided, eligibility and services  must be reviewed periodically. 

           

 

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