Question 1: When is the district required to make a 504 referral?

A student should be referred to 504 when the District believes that the student may be eligible, i.e., when the District believes that the student has a physical or mental impairment that substantially limits one or more major life activities, AND that the student is in need of either regular education with supplementary services or special education and related services. Letter to Mentink, 19 IDELR 1127 (OCR 1993).

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: Do we have to refer to Section 504 every child who breaks a bone or sprains an ankle?

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 4: 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? Does this child need to be referred to 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 Section 504 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). Of course, an exception does apply.

Question 5: If we do the modifications for the student, do we have to refer the child and go through the procedural hassle of 504?

Yes. If the student qualifies for 504, doing the modifications without providing the procedural protections is a violation. That was the case where a school district provided a student who had undergone hip surgery with appropriate modifications, but failed to have procedures in place to document the deliberation of, or provision of accommodations [the regulations require no such documentation], or to inform parents of the procedure to follow should their student become disabled. Temple (TX) ISD, 25 IDELR 232 (OCR 1996). There can be few results as unpalatable as one where the district provides sufficient modifications to a qualified disabled student, but nevertheless is found in violation for not jumping through the procedural hoops.

Question 6:  Does the school have to refer a student to 504 and conduct an evaluation if the student has been placed in a private or homeschool by his/her parents?

Once the District has offered the child a free appropriate public education, it has no duty to provide “educational services to students not enrolled in the public school program based on the personal choice of the parent or guardian.” Letter to Veir, 20 IDELR 864 (OCR 1993); Hinds Co. School Board, 20 IDELR 1175 (OCR 1993). Note that the result is very different under the IDEA where a parent may unilaterally place the child in a private school and may be able to access OT, PT or other special education or related service components.

Question 7: What is a 504 reevaluation?

Unlike its special education counterpart, the 504 evaluation does not mean “test,” but instead, means a gathering of data from a variety of sources. No formal testing is necessary. Letter to Williams, 21 IDELR 73 (OCR 1994). In the §504 context, evaluation refers to a gathering of data or information from a variety of sources so that the committee can make the required determinations. Since specific or highly technical eligibility criteria are not part of the 504 regulations, common sources of evaluation data for 504 eligibility are the student’s grades, disciplinary referrals, health information, language surveys, parent information, standardized test scores, teacher comments, etc. An evaluation is required, according to the regulations at 104.35(a), prior to initial evaluation, and prior to any significant change of placement. A reevaluation is also required “periodically” which the Appendix to the regulations defines as at least every three years.

The reevaluation is simply a re-gathering of information from a variety of sources to verify eligibility and to determine if additional changes are needed in the child’s program. While the regulations require reevaluation every three years, the better practice is to conduct one at least at the end of every school year, looking forward to the next school year and changes to the child’s schedule, teachers, and other issues that may require tinkering with the modifications and/or behavior management plan. Note that the manifestation determination meeting conducted by the 504 committee prior to a change of placement for disciplinary reasons of greater that 10 days, or when removals total 10 days during a school year is also a reevaluation.

Question 8: Can a student's absences trigger a 504 referral and evaluation?

Absolutely. If a district suspects that a significant number of absences is due to a disability that substantially limits a major life activity (for example, when the number of absences threatens the student's ability to receive credit for coursework or when it impacts significantly on grades), the district ought to refer and evaluate. For example, a junior high school student with severe allergies, asthma, and migraine headaches had a lengthy history of missing school due to her medical problems. In seventh grade, she was absent 132 times, and in eighth grade attended classes only three to ten times from September to November. The parents argue that the school failed to accommodate the student’s absences. The only evaluations conducted by the district with respect to the child’s absences were very recent attempts to find psychological causes, even though the district was aware for the past five years of the student’s medical problems (the allergies, headaches, and asthma). OCR finds that the district failed to properly evaluate given the information that it had on the medical related absences. Grafton (ND) Public School, 20 IDELR 82 (OCR 1993).

Note, however, that the fact a student has a disability does not necessarily mean that each of his or her absences is disability-related. For example, the parent of a disabled student enrolled in a vocational training program complains when the student receives a low grade due to absences. The parent alleges that the grades are discriminatory, and that the absences are related to disability. The program encouraged students to develop appropriate work habits, including regular attendance. Under a point system, a student who missed a day of school during the week could receive no grade higher than a “C” for the week. The student missed at least one day in each of the first five weeks. OCR finds that the grading policy is based on objective, nondiscriminatory factors. Further, OCR finds nothing in the IEP to indicate a disability or medical condition which would affect his regular attendance at school. No violation is found. Dade County (FL) School District, 29 IDELR 994 (OCR 1998). Each child's situation should be reviewed on its own merits.

Question 9: If a parent referral for 504 evaluation is refused by the public school, does the parent have any recourse?

Yes. The refusal to evaluate triggers the parents' rights to (1) request a 504 hearing before an independent hearing officer or (2) file suit in state or federal court or (3) file a complaint with the Office for Civil Rights.

While there is no right to an evaluation on parent demand under Section 504, Letter to Mentink, 19 IDELR 1127 (OCR 1993), districts should carefully consider the refusal to provide an evaluation. If the district believes that the child is not eligible (for example, the child is already receiving educational benefit) providing a 504 evaluation and making that determination properly through a 504 Committee makes the decision virtually bulletproof against an OCR complaint. Remember, since OCR looks at procedural compliance issues, as long as the 504 Committee was properly constituted and asked the right questions based on proper evaluation data, the Committee's decision that the child was not eligible will not be disturbed by OCR. The parent's disagreement with the eligibility decision will not be reviewed by OCR, because that type of complaint is the territory of the independent hearing officer. See for example, Virginia Beach City (VA) Public Schools, 26 IDELR 27 (OCR 1996); Temple (TX) ISD, 25 IDELR 252 (OCR 1996).

“It is the policy of the Department that OCR will not, except in extraordinary circumstances, review the results of individual placement decisions as long as the District complies with the ‘process requirements’ of the Section 504 regulation.... OCR does not make an independent decision regarding the appropriateness of a particular education program or service for a specific child, if proper evaluation, placement, and due process procedures have been followed. In that the complainant has essentially alleged a disagreement with the results of an evaluation and not a failure to comply with the appropriate process requirements, OCR will not further investigate this matter. The proper forum for resolving such disagreements is the due process hearing.” Oak Ridge City (TN) School District, 29 IDELR 390, 391 (OCR 1998.). By properly conducting a 504 evaluation, the district insulates itself from a potential OCR complaint.

Question 10: What’s all the hoopla over the American Academy of Pediatrics guidelines on diagnosis of ADHD?

An ongoing struggle for many educators is the realization that no medical diagnosis is required for 504 eligibility. “Section 504 does not require that a school district conduct a medical assessment of a student who has or is suspected of having ADHD unless the district determines it is necessary in order to determine if the student has a disability.” Williamson County (TN) School District, 32 IDELR 261 (OCR 2000). In fact, the regulations do not require medical evaluations for any disability to qualify under 504. Of course, if the parents present the school with an outside medical evaluation, it must be considered as part of the district’s evaluation process. This requirement has also been a concern to some educators, especially when the diagnostic practices of a local doctor result in a high number of ADD/ADHD students. Some relief arrived on that front last year.

The American Academy of Pediatrics, in response to public debate over the diagnostic practices used to determine ADD/ADHD, and concerns over possible over-diagnosis, issued a practice guideline in May of 2000 designed to provide uniformity and better diagnosis of ADD/ADHD in children. Clinical Practice Guideline: Diagnosis and Evaluation of the Child with Attention-Deficit/Hyperactivity Disorder, 105 Pediatrics No. 5, p. 1159 (May 2000)(hereinafter AAP Guideline). In addition to determining that the DSM-IV criteria should be used, Recommendation 4 of the Guideline states: "The assessment of ADHD requires evidence directly obtained from the classroom teacher (or other school professional) regarding the core symptoms of ADHD, the duration of symptoms, the degree of functional impairment, and coexisting conditions. A physician should review any reports from a school-based multidisciplinary evaluation where they exist, which will include assessments from the teacher or other school-based professional.” The requirement that physicians consider evidence from the school is based on facts educators have known for some time. “Children 6-12 years of age generally are students in an elementary school setting, where they spend a substantial proportion of waking hours. Therefore, a description of their behavioral characteristics in the school setting is highly important to the evaluation.” Id., at 1165. An additional recommendation is that the physician receive the information directly from the school. While no explanation is given for this recommendation, it seems clear that information provided directly is more valuable (accurate) than information filtered through a parent or other person. Click here for the AAP Guideline at www.aap.org/policy/AC0002.html