Question 1: What if the major life activity impaired is not learning?  Can the child still qualify under Section 504?

A common misperception in 504 is that a student must possess a physical or mental impairment that substantially limits the major life activity of learning in order to be 504 eligible. OCR’s position is that while it “may be true in a practical sense that most impairments that would be of concern in an education setting would be those that impair learning,” the major life activity of learning need not be the focus of the equation. “Students may have a disability that in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning. For instance, a child may have very severe asthma (affecting the major life activity of breathing) that requires regular medication and regular use of an inhaler at school. Without regular administration of the medication and inhaler, the child cannot remain in school.” Letter to McKethan, 23 IDELR 504 (OCR 1994).

Question 2: Do we evaluate and serve (1) students with a record of a disability or (2) students regarded as being disabled?

The definition of students protected under 504 includes those with a “record” of a disability or “regarded as” having a disability. 34 C.F.R. Section 104.3(j)(1). These provisions have led to much confusion among school districts. The main misconception is that even if currently not disabled, a child with a record of a disability, or regarded as having a disability, has to be evaluated and placed under 504 by a Section 504 committee. This is not so. Only children who currently suffer from an impairment substantially limiting learning or another major life activity are eligible for referral, evaluation, and educational services under 504. “Logically, since the student [qualifying under prong two or three] is not, in fact, mentally or physically handicapped, there can be no need for special education and related aids and services.” OCR Senior Staff Memo, 19 IDELR 894 (Aug. 13, 1992) [bracketed material added]. Prongs two and three of the disability definition exist to protect children with a record of a disability and children regarded as having a disability, from disability-based discrimination.

Question 3: What constitutes a “substantial limitation?”

The 504 regulations do not contain a definition of “substantially limits” and has declined to define the term. “Several comments observed the lack of any definition in the proposed regulation of the phrase ‘substantially limits.’  The Department does not believe that a definition of this term is possible at this time.” Appendix A, p. 419. OCR has ruled that the phrase is to be defined by the local educational agency, and not OCR. Letter to McKethan, 23 IDELR 504 (OCR 1994). Schools can reasonably adopt the definition provided in the Legislative History to the Americans With Disabilities Act. Under the ADA, a major life activity is substantially limited when “the individual’s important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.” [House Report No. 101-485 (II), p. 52.].

Question 4: Can a temporary disability qualify a child for services under Section 504?

In various policy letters, the Department of Education has determined that a temporary disability can constitute a physical impairment that substantially limits a major life activity such that 504 services might be required. See, e.g., Ventura (CA) Unified School District, 17 EHLR 854 (OCR 1991). The proper inquiry “is not whether the impairment is temporary or permanent; rather the appropriate inquiry is whether the impairment substantially limits one or more major life activities.” Letter to Wright, (OCR 1993). That determination must be made on a case-by-case basis, considering the “nature, severity, duration or expected duration and the permanent or long term impact resulting from the impairment.” Id.

Question 5: Is there a list of disabilities that qualify a child for Section 504?

No. The Department of Education did not provide a list of qualifying impairments as exists under the IDEA. The appendix to the regulations indicates that the absence of a list was entirely intentional. “The definition does not set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list.  The term includes, however, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and, as discussed below, drug addiction and alcoholism.” Appendix A, p. 419.

Question 6: Are children with limited English proficiency disabled and eligible for 504?

Maybe. Limited English proficiency means that the child does not understand and/or speak the English language. It does not mean that the child has a language impairment, which would be evident even in his native tongue. Children recently arrived from Lithuania, for example, are generally perfectly capable of language—but probably not the English language. They do not have a language impairment problem, but rather a language proficiency problem. Of course, children from Lithuania are not immune from legitimate language impairments, such as articulation problems or aphasia. Limited proficiency alone, however, is not a disability. It may substantially limit learning, but it is not considered a physical or mental impairment. Because children with limited English proficiency (who are otherwise nondisabled) do not have a physical or mental impairment in language production in general, they are not considered disabled under Section 504.

Question 7. Is every child who breaks a bone or sprains an ankle eligible under Section 504?

No. Schools only need to refer and evaluate those children who are suspected of needing Section 504 services due to a physical or mental impairment that substantially limits one or more major life activities. If a child breaks his right wrist, and he is left-handed, the school may legitimately not suspect that 504 services will be necessary. The referral question must be taken up on a case-by-case basis, depending on the physical impairment, whether it substantially limits a major life activity (which may depend on the type of classes or activities the child is involved in at school), and whether it needs to be addressed with 504 services or accommodations of some kind.

Question 8: What about the parent who says that with 504, his child could get the straight A’s that the parent knows the child should get? Is that child eligible under Section 504?

While parents may honestly believe that a child is not performing to his or her potential, that failure is not sufficient reason for referral and evaluation. For example, OCR has found no duty to qualify a child 504 despite his having ADD when the child had acceptable behavior and was making A’s and B’s in all of his classes. Jefferson Parish (La.) Public Schools, 16 EHLR 755 (OCR 1990).

“When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.” Hendrik Hudson District Bd. of Education v. Rowley, 458 U.S. 176, 207 fn. 28 (1982). As a result, where the child is already passing his classes (without modifications) he is likely receiving educational benefit and in no need of ß504 or IDEA services. “By definition, a person who is succeeding in regular education does not have a disability which substantially limits the ability to learn.... A student who is already succeeding in regular education would not need special education to obtain this level of benefit and, thus, would not meet the standards established for LD eligibility.” Saginaw City (MI) School District, EHLR 352:413 (OCR 1987).

Question 9: Since 504 also applies to IDEA (special education) students, does that mean that a 504 committee has to meet to determine eligibility for services in addition to the ARD Committee (or IDEA IEP/Multidisciplinary Team)?

NO. While 504 provides nondiscrimination protection to IDEA students, the responsibility for the child’s free appropriate public education comes from IDEA. It is that ARD Committee (IEP Team, etc.) that determines the educational services for the child. OCR has concluded that when a child qualifies under the IDEA, the District satisfies the provisions of Section 504 as to that child by developing and implementing an IEP under IDEA. Letter to McKethan, 25 IDELR 295, 296 (OCR 1996). Of course, the anti- discrimination protection provided by 504 does not necessitate 504 Committee action, but instead, is accomplished through awareness and training of district personnel.

Question 10: Can the district base 504 eligibility on the results of a single IQ test?

NO. The District is not allowed to base eligibility on a single piece of evaluation data. When interpreting evaluation data and making placement decisions, the District is required to “draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.”  Section 104.35(c)(1). Information obtained from all such sources is to be documented and carefully considered. Section 104.35(c)(2). “[This] paragraph requires a recipient to draw upon a variety of sources in the evaluation process so that the possibility of error in classification is minimized.” Appendix A, p. 430.

Question 11: Can a student be dismissed from 504?

Absolutely. Once a student no longer meets eligibility requirements (that is, he no longer has a physical or mental impairment that substantially limits one or more major life activities), the 504 committee can dismiss him from 504. That child is no longer eligible for 504 services. However, since he is a child with a record of a disability, he continues to receive protection under 504 from discrimination by the district. No further 504 meetings are required for this child following his dismissal, unless the district believes that he is again eligible for services at some point.

Question 12: Do we need a diagnosis from a medical doctor in order to identify a child as disabled under 504?

No. Schools are sometimes reluctant to qualify a child under Section 504 because of ADD/ADHD unless they have a medical diagnosis which supports that eligibility. However, the 504 regulations include no requirement that the district must have a medical evaluation in order to determine a child eligible under 504. An OCR decision issued in 1992, on an IDEA (special education) student provides additional support for the notion that no medical diagnosis is required. Letter to Parker, 18 IDELR 965 (OCR 1992). Here, OCR indicates that for purposes of compliance with the IDEA (and in the absence of more specific state law requirements on eligibility) no medical evaluation by a licensed physician is needed to find that the child with ADD/ADHD qualifies as Other Health Impaired (OHI). “If a public agency believes that a medical evaluation by a licensed physician is needed as part of the evaluation to determine whether a child suspected of having ADD meets the eligibility criteria of the OHI category, the school district must ensure that this evaluation is conducted at no cost to parents. However, if a school district believes that there are other effective methods of determining whether a child suspected of having ADD meets the eligibility requirements of the OHI category under Part B, then it would be permissible to use other qualified personnel to conduct the evaluation, so long as all of the protection in evaluation requirements of 34 CFR Sections 300.530-300.534 are met.” 

In other words, if no medical evaluation is required under federal law for special education eligibility (which involves more severe disabilities and access to more extensive special education and related services) the same is true under 504. That does not mean that districts should ignore medical diagnoses when they are available. The district’s obligation is to carefully consider all evaluation data, including a medical diagnosis. 34 C.F.R. 104.35(c)(2). The district should likewise be careful not to put too great an emphasis on a medical diagnosis, for the existence of a disability alone, without a substantial limitation on a child’s major life activity at school means no eligibility.

Question 13: If a student is dismissed from special education, how could he possibly qualify under 504 for services when his disability remains the same? How can a disability qualify a child for 504 but not IDEA?

The key to understanding this difference lies in the severity of the disability. Remember that the IDEA exists to provide special education and related services to the students with the most severe disabilities. Those students are entitled to significant services and procedural protections. 504 students, on the other hand, are less severely disabled, and in need of fewer services and in receipt of less extensive procedural protections. In Texas, for example, a student with a 16 point discrepancy between IQ and achievement who needs special education and related services has a learning disability under the IDEA. It is possible over time for that discrepancy to narrow (to 13 points, for example) so that on reevaluation, the student no longer has the necessary 16-point discrepancy, and thus is no longer eligible under the IDEA. The student still has a 13 point discrepancy, and still obviously has a learning problem. If the child still needs modifications, he likely qualifies under 504 with the same disability that no longer is severe enough to qualify him for IDEA.

Question 14: When a child is dismissed from special education, is he automatically eligible for 504?

Yes and No. The student’s eligibility for services under 504 depends on whether the child has a current physical or mental impairment which substantially limits one or more major life activities. (For you visual learners, download the “Three Prong” graphic on the 504 resources page). This is often the case where a child with a learning disability has improved adaptive behavior or other skills, and no longer qualifies under the IDEA eligibility criteria. While less than the level required for IDEA, the child may still have an impairment significant enough to result in 504 eligibility. That will be a decision for the 504 committee to make after it has reviewed the evaluation data.

Even if the student does not qualify for 504 services, the student dismissed from special education has a record of a disability, and is qualified for the anti-discrimination provisions of 504. Note that since no services are needed, no 504 committee is required to meet, there is no referral and no evaluation. Should the student later demonstrate a need for services or modifications due to a physical or mental impairment, the student should be referred to 504 unless the suspected disability again is so severe as to reach IDEA eligibility.

Question 15: Is it possible for a student to be disabled per se, because he has a particular physical or mental impairment? That is, is it possible that for some impairments, we assume that the sufferer is eligible without any analysis of the severity of the disability?

No. The Fifth Circuit Court of Appeals was presented with that question in an ADA (Americans with Disabilities Act) case, and flatly rejected the idea. The plaintiff attempted to argue that having the physical impairment of seizures was per se, or by itself, enough to get ADA protection, and that no showing of substantial limitation was required. The Court wrote: “Due to this wide range of symptoms and causes, the term ‘seizures’ does not appear to describe a class of impairments that share sufficiently similar characteristics such that they should be treated as a single ‘impairment’ or ‘disability’ under the ADA. The result of accepting Deas’ argument that ‘seizures’ constitute a disability per se would require courts to equate the impairment of an individual who experiences occasional ‘tingling’ in his fingertips due to mild seizures with the impairment of an individual who experiences frequent, prolonged, and potentially life-threatening convulsions due to severe grand mal seizures. We view this as a legally untenable position, and conclude that the determination of whether seizures are disabling for purposes of the ADA is best left to a case-by-case analysis.” Deas v. River West, L.P., 152 F.3d 471, 483 fn. 17  (5th Cir. 1998).

Question 16: Is it possible for a student to be 504 in one district and not eligible in another?

Yes. A natural result of the OCR position that no standard definition of "substantially limits" will be provided by the U.S. Department of Education (Appendix A to the 504 Regulations, p. 419.) is that eligibility will vary among districts. That result is further guaranteed by OCR's position that each district is responsible for determining what the phrase means. Letter to McKethan, 23 IDELR 504 (OCR 1994). Since the phrase "substantially limits" is the sticking point in eligibility, and since every district can define the phrase for itself, it should be no surprise that a student eligible in one district might not be eligible in another.

Question 17: Can the parent’s disability make the child eligible for 504?

No. The real question here is who has to have the physical or mental impairment? On occasion, inquiries are made into 504 services for a child due to the physical or mental impairment of his or her parent. Note that in addition to being “disabled” an individual must also show that he or she is “qualified” in order to be eligible under Section 504. For purposes of preschool, elementary and secondary education, “qualified” means the child has a legal right to education from the district (typically arising from state compulsory attendance laws) and is within the age range of students (both disabled and nondisabled) whom the school is legally obligated to serve (between the ages of 3 and 22 in Texas). 34 C.F.R §104.3(k)(2). As a result, the parent’s impairment cannot make the child 504 eligible, because the child is not both disabled and qualified..

Question 18: When does a student’s passing grades not constitute evidence of educational benefit?

When the passing grades hide a lack of progress on goals and objectives.  Question 8 sets out the general rule that passing grades and advancement from grade to grade is evidence of educational benefit. That general rule is subject to exception. In a special education decision from Indiana, the hearing officer was faced with a claim for reimbursement for private placement. The school argued that the student had progressed from grade to grade, invoking Rowley. The hearing officer was less than impressed with the district’s program, especially when she determined that although the student was being promoted, he could not read, and was not making progress to that goal. “The appropriateness of past services provided by the LEA is best judged by a review of objective evidence, such as a student being unable to read, lacking word attack skills, and being very deficient in decoding. The attainment of passing grades and regular grade advancement, although generally accepted by courts as indicators of satisfactory progress is only one factor..... Here, it is deemed a very small factor compared to the other evidence of the student’s inability to do basic reading and being unable to properly decode words.”  Duneland School Corp. (IN), 31 IDELR 222 (Special Education Hearing Officer 2000). Similarly, for the 504-only child, where passing grades are given merely to secure a social promotion (having little to do with the child’s achievement), they will not evidence receipt of educational benefit. In short, for the grades and promotions to have value as evidence of educational benefit, they must be based on, and accurately reflect, the student’s educational performance.