Section 504 Placement Questions and Answers

Question 1: Do (1) students with a record of a disability or (2) students regarded as being disabled receive classroom modifications under Section 504?

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].

Question 2: What do kids who are eligible as having a “record of an impairment” or who are “regarded as” having an impairment get under 504?

Prongs two and three of the 504 disability definition exist to protect children with a record of a disability and children regarded as having a disability, from disability-based discrimination. Kids qualifying for 504 in this way (and in the absence of a current physical or mental impairment) do not get educational services under Section 504. Instead, they only receive anti-discrimination protection.

For example, if a child suffered from bone cancer in his leg at age six, and went into full remission a year later with no subsequent relapses, the football coach may not prevent the child from trying out for the team simply because of the child’s record of bone cancer. That would constitute discrimination based on the child’s record of a past disability. The child has a right to equal participation in extracurricular activities under Section 504, past disability or not.

In another situation, a child from a family with a history of tuberculosis enrolls in school. Although the child does not have tuberculosis, his teacher, who knows the family history, sits the child in the back of the class and neither interacts with the child, nor allows other children to be in close proximity of the child. That teacher is discriminating against the child on the basis of an incorrect perception that the child is disabled. The child is protected from such discrimination under Section 504.

In both of the preceding scenarios the school is not under a duty to evaluate, place, or provide services to the children. The school is prohibited by Section 504 from discriminating against the students based on a record of disability or a perception of disability. In these cases, while 504 does not provide children with services (they are not currently disabled and in need of services), it provides them with legal protection from improper discrimination based on history of disability or persons’ unfounded disability-related prejudices.

Question 3: Since 504 also applies to IDEA (special education) students, does that mean that a 504 committee has to meet to provide 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 4: Can a parent demand that 504 provide services rather than IDEA for his/her IDEA-eligible child?

NO. On occasion, a parent of an IDEA-eligible students may desire all that IDEA has to offer (special education and related services) but demand that the District provide those services under Section 504 so that the child is not in special education. OCR has rejected this demand, finding that when a child qualifies under the IDEA, the District satisfies the provisions of 504 as to that child by developing and implementing an IEP under IDEA. Therefore, when parents reject that IEP developed under IDEA, they “would essentially be rejecting what would be offered under Section 504. The parent could not compel the district to develop an IEP under Section 504 as that effectively happened when the school followed IDEA requirements.” Letter to McKethan, 25 IDELR 295, 296 (OCR 1996). Similar findings have been made in a Texas Section 504 Hearing (Errol B. v. Houston ISD, Hearing Officer Ann Vevier Lockwood, October 26, 1995), and by a federal district court. “The Court believes that the only students likely to be entitled to special education under Section 504 are the same students also entitled to special education under the IDEA.” Lyons v. Smith, 20 IDELR 164, 167 fn. 11 (D.C.D.C. 1993)(emphasis added).

Question 5: What can be done to teachers who refuse to implement modifications in a student’s 504 accommodation plan?

Since physical violence is uncivilized and leads to nasty criminal penalties, the best “big stick” motivator for teachers who refuse to modify is adverse employment action against their contracts. The student’s accommodation plan is what federal law requires to be done in the classroom. Should a teacher refuse to follow the plan, the teacher is in violation of federal law. Most school district employment contracts contain language indicating that the employee agrees to abide by federal and state law and local school district policy. Failing to comply with a 504 plan violates that contract provision, and should result in written directives, reprimands, and more serious employment action (including nonrenewal and termination) should the employee continue to refuse to serve the child. After all, the teacher’s refusal to follow the plan means that the district is not in compliance, and is exposed to OCR investigations, or 504 due process hearings.

While the big stick of employment actions exists to convince teachers to comply, some more practical considerations are also helpful. For example, it is an unfortunate fact that as the students moves from elementary to middle school to high school, the level of commitment to implementing accommodations among faculty tends to decrease. In all likelihood, this decline in compliance is due to the large number of students being served by an individual teacher during the school day, and the difficulty of keeping up with a variety students who require different accommodations. Committees would do well to remember this simple fact when creating accommodation plans. Keep plans simple. Only require the use of accommodations that are necessary for the child to receive opportunity for educational benefit. That is, require only what is necessary, not “what might be nice.” Second, make sure that classroom teachers provide input on the plan. They are in the best position to know the requirements they are placing on students, and will also know what accommodations they have seen work for the child.

Question 6: How can a school ensure that accommodations are being implemented in the classroom?

Nothing can replace periodic walkthroughs by campus administrators and watching the child’s progress. Successful supervision requires both elements. Unannounced walkthroughs provide a true (although brief) view of classroom activity. More importantly, they send the message that at any time, an administrator could come into the classroom to observe. That reminder encourages compliance. Periodic checking of the student’s grades and behavior is also important. We want to ensure not only that the accommodations are being done, but that they are the right accommodations (they are effective). By watching student performance and behavior, the committee can see whether the child is improving, and if not, focus its attention on what else (if anything) should be done.

Question 7: Does 504 contain a Least Restrictive Environment (LRE) requirement?

Yes. The LRE Mandate under Section 504 (paraphrased from the regulations, [§104.34(a)(1)].) is to educate each qualified handicapped person with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person.  The least restrictive environment is defined as the setting that allows the disabled student the maximum exposure to nondisabled peers while still allowing him to receive an appropriate education. Both IDEA and 504 create the presumption that each disabled child can be educated in the regular classroom. This presumption should be even stronger in 504 since the disabilities encountered in 504 students are typically less severe. If the District believes that some setting other than the regular classroom is necessary for the child to receive educational benefit (meaningful progress on appropriate goals and objectives), the District must be ready to show that it has provided support services and aids to assist the child in the regular classroom, and that such efforts have failed, before determining that a more restrictive placement is necessary. Section 104.34(a).

Question 8: Are there any special rules for PE & Athletics?

Disabled students must be given an equal opportunity to participate in physical education classes, interscholastic, club and intramural athletics. Section 104.37(c)(1). “Most handicapped students are able to participate in one or more regular physical education and athletics activities.  For example, a student in a wheelchair can participate in a regular archery course, as can a deaf student in a wrestling course.” Appendix A, p. 431. Where a disabled student cannot participate in the PE activities, an alternative activity, consistent with his abilities, should be provided. Separate or different physical education and athletic activities may be offered to disabled students “only if the separation or differentiation is consistent with the requirements of [LRE] and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.” Section 104.37(c)(2).

With regard to interscholastic teams which utilize performance criteria in determining who will participate, disabled students must be given the opportunity to compete for a spot on the team. For example, parents of a student with Tourette’s Disorder claimed discrimination when the student was not picked for the baseball team. They alleged that the coach knew of the child’s disability and resulting behavior problems, and discriminated against the student for those reasons. The coach was able to demonstrate that the student failed to meet regular performance criteria to participate on the team. Students wanting to join the team participated in a series of drills which the coach observed and analyzed. The coach ranked the students on a variety of performance criteria: speed, balance, coordination, hand-eye coordination, sprint speed, lateral movement, and softness catching the ball. Out of fourteen students trying out for two openings, the claimant finished eighth, and did not receive a position on the team. OCR found no violation as the “student was given an equal opportunity to compete for a position.” Maryville City (TN) School District, 25 IDELR 154 (OCR 1996).

Question 9: Is it possible for a 504 program to be appropriate when the student fails a class?

Yes. A problem sometimes encountered by Section 504 coordinators is concern over a child who even with accommodations has failing grades. A question often asked is what do we do if we know the accommodation plan is appropriate and is being implemented in the classroom and the child still fails? As the following cases demonstrate, school officials need to be able to articulate and demonstrate the reason for the failure. Presumably, the reason cannot arise from disability unless it has been accommodated, and the student rejects the accommodation.

A disabled student fails because he didn’t turn in work—he didn’t try. The parent complains to OCR that the student’s IEP has not been implemented causing the student to fail in keyboarding and Spanish class. The student is learning disabled. Classroom accommodations included extra time for written work, the chance to redo work deemed unacceptable by the teacher, and verbal clarification of instructions and assignments. The student failed keyboarding when he failed to complete, print, or turn in work. In the Spanish class (where no accommodations were required) the student nose-dived after the third 9-week session when he failed to make up three tests, a vocabulary poster and a major composition. The student left his final exam blank. When given the opportunity to redo papers or make corrections on assignments for a new grade (something the teacher did for all students), the student chose not to participate. OCR finds no violation. “Student B’s failure to pass keyboarding and Spanish was not related to the District not implementing his IEP. The District tired [sic] to implement his IEP, however, the student would not attend make up or tutoring sessions and did not retake exams when the opportunity was available.” Beaufort County (SC) School District, 29 IDELR 75 (OCR 1998). See also, Spartanburg #4 (SC) School District, 29 IDELR 252 (OCR 1998).

An important lesson emphasized by this case is that disability is but one potential contributing factor in a child’s ability to perform at school. Another important factor in these two cases is the districts’ good faith and clean hands. In these cases, there was no question that school officials were concerned for the child and his performance. There was also a level of extra attention and effort in each case, and procedural compliance. Since OCR will typically not second-guess educational decisions made following the proper procedures, and the good faith of the school officials deflected any other concerns, the districts were found in compliance.

Question 10: Who bears the responsibility for implementing the 504 plan and for providing a free appropriate public education (FAPE)?

While parents and the public schools are often referred to as partners in education, the ultimate legal responsibility for FAPE under Section 504 rests with the school. 34 C.F.R. Section 104.33(a).

Question 11: Can a principal or other administrator veto a 504 Committee decision because it is too expensive, even if the accommodation is necessary for a free appropriate public education?

No. The Section 504 regulations require that decisions about a child's educational placement be made a "group of knowledgeable people" which we refer to as the "504 Committee." Inherent in that requirement is the prohibition on a single person making the placement decision instead of the required group, and a prohibition on a single person overruling the 504 Committee. That being said, a principal or other administrator's concerns about the cost of a program cannot be overlooked (especially when Committee members are subject to employment actions by the principal). Cost can certainly be a factor, but the regulations do not allow a district to omit an accommodations required for FAPE simply because it is costly. Unlike the ADA's application in the employment context, there is no "reasonable accommodation" requirement under Section 504 for the public schools when FAPE is at issue. OCR Response to Zirkel, June 28 ,1993. So, if an expensive accommodation is needed, the sheer cost does not mean that the accommodation can be rejected by the Committee. Note that, just like in special education, a more expensive accommodation is never required when a less expensive alternative is also appropriate.

Of course, should expensive programming or services be required to provide a student with FAPE, the Committee should consider whether 504 is the appropriate program to provide services. After all, 504 students are generally educable in the regular classroom with fairly routine and inexpensive accommodations. If more serious programming or services are required (resource classes, a one -on-one aide, occupational therapy, physical therapy, speech, etc.) the Committee should consider whether special education eligibility is possible, thus opening up the resources of the IDEA for the child.

Question 12: Can a 504 Committee change a student's grade?

No.  A student's grade ought to be the teacher's determination of the child's progress/performance in the class. A child's grade is not a free appropriate public education (FAPE) issue, that is, the right to a free appropriate public education (and the resulting right to opportunity for educational benefit) is not tied to the grade, but to the student's progress. Since the grade itself is not a FAPE issue, it is not controlled by the 504 Committee.

However, if, for example, the teacher has failed to implement required accommodations for an exam, and a child fails the exam, the 504 Committee has the authority to order the teacher to retest with the required accommodations. As a result, the student gets the accommodations that were required and the proper grade can be determined. Resist the urge as a 504 Committee to simply replace a teacher's grade with what you think the student would have received had the student received the proper accommodations. 

Question 13: When a 504 student moves into the district with an existing 504 plan, what is the new district's duty?

When a 504 student moves into a new school district, is eligible to attend and enrolls, the new district is obligated to provide a free appropriate public education (FAPE). That may prove a bit difficult since the new district has no experience with the student. The safe course is to replicate the student's services received in the previous district while the new district’s personnel gain experience with the child. After a few weeks, the new district should conduct a 504 reevaluation and make changes to the accommodation plan as necessary. If the student's program from the former district cannot be replicated in your district, approximate it as closely as you can, and during the evaluation process, pay special attention to the student's needs that were met by that portion of the plan which you could not duplicate. The Committee may find that other programs or services might meet the need.

It is also possible that the newly-arrived student, despite eligibility elsewhere, is not 504-eligible in your district. Since every district determines for itself the definition of “substantial limitation” that it will use, differences in district approaches to the same student are very likely.

Question 14: Can the 504 Committee order accommodations to the ACT/SAT?

Not with any real authority. The testing services will review the accommodations a student is receiving under 504 or IDEA, and then will make their own independent determination of whether accommodations to college entrance exams will be allowed. Understandably, a student who receives modified testing in the school setting seems a more likely candidate to receive accommodations on college entrance exams. Likewise, the longer the student has received the accommodations, the more likely they will be considered favorably. As might be expected, a few juniors and seniors claim disability each year for the sole purpose of receiving extra time on these critical exams. The independent review by the testing services apparently is calculated to prevent that abuse.

Question 15: What is the school district’s duty to transport students under §504?

With respect to transportation, the district’s duty to 504 students is twofold. First, is the basic 504 nondiscrimination duty. Simply stated, a disabled student should not be denied access to transportation a similarly situated nondisabled student can access. In other words, a student should not be denied transportation for which he is otherwise eligible because he is disabled. If the district provides transportation to students who live a certain distance from the school or who must cross a dangerous road to get to school, that service must be offered equally to disabled and nondisabled students who meet the eligibility criteria.

Second, even if transportation services are not available to a population of students (because they live too close to school, for example), a disabled child’s physical or mental impairment may require the district to provide transportation services so that the disabled child can access education at the school. “Under Section 504, a recipient is required to offer transportation services in such a manner as is necessary to afford students with disabilities an equal opportunity for participation in such services and activities.” Whitman-Hanson (Ma) Regional Sch. Dist., 20 IDELR 775, 779 (OCR 1993). For example, a student whose asthma is aggravated by certain climates/seasons may be unable to walk to school during certain times of the year without experiencing severe breathing problems. Similarly, a student who used to be able to walk to school but cannot do so now (due to broken leg or similar mobility impairment) may require transportation to school as a 504 accommodation. Note that in neither case would a special bus be required (unless the mobility impairment resulted in the temporary use of a wheelchair). Giving both students access to the regular bus (which they could not access earlier due to the short distance to school) is an appropriate accommodation.

Question 16: Is a District required to provide transportation under 504 for students in private or homeschools?

Typically No. In 1998, parents of a student unilaterally placed in a homeschool by the parents complained to OCR that the district refused to provide transportation to the student for a one hour class in the district each day. In its rejection of the parent’s complaint, OCR reiterated the rule.

“Under the Section 504 regulation, a recipient may be required to provide transportation services or the costs of those services to get a qualified student with a disability to and from school in the District; the District may also be required to get a qualified student with a disability to or from a program other than its own, when the recipient places the student in the program.... However, if a recipient offers a free appropriate educational program to a student with a disability, and the parent chooses to place the student in an alternative educational placement, the recipient has no obligation under the Section 504 and ADA regulations to provide transportation services for the student to attend a program or class at a school, even within the district, except to the extent it provides such services to similarly situated students without disabilities (i.e., to students without disabilities whose principal educational placement is not with, or sponsored by, the recipient).” Spencer County (KY) Sch. Dist., 31 IDELR 38 (OCR 1998).

Since the District did not provide transportation services to nondisabled students who attended private or homeschools, OCR found no obligation to do so for a similarly situated 504 student. See also, Westhampton Beach (NY) Union Free Sch. Dist., 28 IDELR 996 (OCR 1998)(By policy the district provides transportation to children attending nonpublic schools within 15 miles and on currently existing district routes. Parent submitted request after the required deadline, for a school outside the 15 mile limit and not on a current route. OCR finds no violation for the district’s refusal to transport the student.)

Question 17: Can a 504 student ride a special ed bus if regular transportation is not appropriate (that is, the student needs a monitor or a lift)?

Yes. But strings attach. The Office for Special Education Programs has concluded that in limited circumstances, it is possible for a non-IDEA qualifying child to access an IDEA-B funded school bus. The question arose from a situation in Nebraska where the state desired to transport Head Start students together with Early Childhood Special Education students on the same IDEA-B funded buses. OSEP concluded that the arrangement “would be permissible without a cost allocation from other funding sources only under very strict circumstances. First, the vehicle would have to make the same trip and incur the same expense whether or not the Head Start children were also riding. Secondly, the Head Start children could not displace a child with disabilities from the vehicle.” Letter to Lutjeharms, 20 IDELR 180 (OSEP 1993). Finally, the district can’t get tricky and use IDEA-B funds “to purchase or operate vehicles that are too large for the intended purpose of providing transportation to children with disabilities in order to provide seating capacity on those vehicles for nondisabled children, thereby avoiding cost allocations from other sources of funds.” Id.

Question 18: Does LRE (the least restrictive environment requirement) apply to transportation?

Yes. The regulations prohibit the district from providing different or separate aids, benefits or services unless such action is necessary to provide qualified disabled students with aids, benefits and services that are as effective as those provided to nondisabled students. §104.4(b)(1)(iv). Further, students with disabilities must be educated with nondisabled students to the maximum extent appropriate to the needs of the disabled student. §104.34. In other words, when the students’ transportation needs can be met on the regular education bus, the student should not be placed on the special education bus simply because he or she is disabled. Kenai Peninsula (Ak) Borough Sch. Dist., 20 IDELR 673 (OCR 1993).

Question 19: Do we have to maximize a student’s potential under 504 or IDEA?

No, that would be the Army. Neither IDEA nor 504 requires the school to help the child “be all that he or she can be.” A few federal court decisions provide some wonderful language on maximizing potential. “The IDEA ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each disabled child.’ Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir. 1984). “There is ‘no requirement that services be sufficient to maximize each child’s potential commensurate with the opportunity provided other children.’ ....The IDEA guarantees an ‘appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents.’” Weixel v. Board of Education of the City of New York, 33 IDELR 31 (S.D.N.Y. 2000). On a 504 claim, the Second Circuit provided this great language. “The heart of J.D.’s opposition to the proposed accommodation is that it was not optimal. However, Section 504 does not require a public school district to provide students with disabilities with potential-maximizing education, only reasonable accommodations that give those students the same access to the benefits of a public education as all other students.” J.D. v. Pawlet School District, 33 IDELR 34 (2d Cir. 2000).