Section 504 Procedure Questions and Answers

Question 1: If we provide the necessary accommodations for the student with a disability, do we have to 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. A school district provided a student who had undergone hip surgery with appropriate accommodations, but failed to have procedures in place to document the deliberation of, or provision of accommodations, 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 accommodations to a qualified disabled student, but nevertheless is found in violation for not jumping through the procedural hoops.

Question 2: What will the Office for Civil Rights (OCR) look at if they investigate my district’s actions under Section 504?

Procedural Compliance is the key. “In assessing whether a school has complied with the requirements of Section 504, OCR takes a process oriented approach when conducting complaint investigations and compliance reviews.” Equal Educational Opportunity and Nondiscrimination for Students with Disabilities: Federal Enforcement of Section 504, Equal Educational Opportunity Series, Vol II., Report of the U.S. Commission on Civil Rights, September 1997, p. 98. As a general rule, OCR will not second-guess the substantive decisions made by the district in determining, for example, a student’s 504 eligibility or classroom accommodations as long as the proper questions were asked by the 504 committee and the proper procedures were followed in making the determinations. In other words, the proper forum for resolution of disputes involving the appropriateness of a 504 plan is the 504 due process hearing, as OCR primarily investigates procedural compliance with 504. Virginia Beach City (VA) Public Schools, 26 IDELR 27 (OCR 1996).

Although rare, OCR analysis of substantive educational decisions does occur. “For example, OCR generally does not rely on its own opinion to conclude that a student needs a certain kind or amount of educational services to meet the student’s educational needs. Instead, it relies on factual findings that a school system’s staff had knowledge of a student’s unmet educational need and that the school system took no action to address the concern.” Commission Report at 98.  

Question 3: Is my district in trouble with OCR if we no longer have a self-evaluation on file?

No. On occasion, a district will be challenged for its failure to have a Section 504 Self-Evaluation on file, pursuant to 34 C.F.R. Section 104.6(c). That provision requires that within one year of the effective date of the regulation, the district must conduct a self-evaluation of its policies and practices (and the effects thereof) to determine whether the district is in compliance. Section 104.6(c)(1)(i). Corrective action is to be taken where needed. Section 104.6 (c)(1)(ii)&(iii). The district is then required to keep the self-evaluation document on file for a period of three years. OCR reminds us that the time to keep those documents on file had passed, and that it will not even investigate the allegation. Maine School Administration District #40, 29 IDELR 624 (OCR 1998 )(“OCR did not investigate the allegation relating to the Section 504 self-evaluation because districts are no longer required to keep these evaluations on file.”)

Question 4: Can a student ever be subject to both an ARD Committee (IEP Team or Multidisciplinary Team under IDEA) and a Section 504 Committee at the same time?

No. Such a result defies logic. For example, once a student has become eligible under the IDEA, he and his parents receive substantial rights under federal law. The IEP is created which outlines his educational program and is designed to convey educational benefit. Should a 504 Committee also act, what could it possibly do but interfere in the programming and decisions already made by the ARD Committee under IDEA? After all, action taken by the 504 Committee would carry with it fewer rights and procedural safeguards than actions taken under IDEA. As long as a child is eligible under the IDEA, the IDEA controls his free appropriate public education and the 504 Committee does not meet on the child. The child, however, does enjoy 504's nondiscrimination protection, but no 504 Committee meeting is necessary for that protection to be extended the student.

Question 5: Do parents have a right to be members of the Section 504 Committee?

No. A 1999 OCR decision from Oklahoma resolves the question. After a meeting was held to introduce the student to his new principal and teachers in an Oklahoma school district, the parent complained to OCR that he was not invited to the introductory meeting in violation of 504. The student’s IAP (completed at a prior meeting attended by the parent) indicated that the parent would attend the introductory meeting as well. The district alleged that the failure to invite the parent arose from the parent’s refusal to allow the high school campus to keep a copy of the accommodation plan and the parent’s demand that the campus only contact the parent by mail. These factors, and the fact that no one was given responsibility at the IAP meeting to contact the parent resulted in no invitation to the introductory meeting. No educational decisions were made at the introductory meeting.

OCR found no violation, largely because 504 does not require the attendance of parents at 504 meetings. “There is no requirement under Section 504 that parents physically participate in all placement procedures, only that placement decisions are made by a group of knowledgeable persons who may include the parent.” (emphasis added.) Note further that once the school became aware of the parent’s concern about not being invited to the introductory meeting, administrators made “numerous” attempts to schedule meetings with the parent, and provided written notice by certified mail of those attempts. Edmonds (OK) Public School, 31 IDELR 242 (OCR 1999).

A bit of commentary: The physical participation language unfortunately gives the impression that parents are required under the regulations to physically participate in some 504 meetings. The regulations contain no such requirement. Nevertheless, the CESD position is that parental involvement in the 504 process should be encouraged through district requests for parent information that will be used by the 504 committee, and by opening avenues of communication with parents and members of the committee. Communication and cooperation can occur without parent attendance at 504 meetings. Whether to invite parents or not is a decision to be made by the district. Once made, it must be consistently implemented.

Question 6: Does every failure to implement a modification or provide a required service result in a 504 violation?

No. Accommodation plans sometimes include modifications or services which are nice or helpful but are nevertheless not necessary to ensure that the student has an opportunity to benefit. In those situations, should the district not implement a “nice but unnecessary” modification– even though it is included in the child’s IEP or 504 accommodation plan– is the failure to implement a 504 violation? After all, the IEP or 504 plan was created by the group of people empowered by federal law to make educational choices for the child. The failure to do what that group specified would seem an obvious procedural violation (for someone other than the authorized group made the decision to not implement). According to the Fifth Circuit, that simple analysis is incorrect. In Houston ISD v. Cauis, the court dealt with the issue of whether failing to provide a few required services violates FAPE if despite the failures, the student nevertheless receives educational benefit. Houston ISD v. Cauis, 31 IDELR 185 (5th Cir. 2000).  After seven years in public school, the student’s parents moved him to a private school and demanded reimbursement arguing that the district’s program denied him FAPE. In his most recent IEP, Cauis was to receive alphabetic phonics training, speech therapy and a variety of classroom modifications. Due to lack of personnel, the student did not receive two months of AP training. The parents rejected the district’s offer for compensatory time and unilaterally placed the student in a private school.

 The parents argued that the school failed to provide a substantial portion of the child’s IEP by not providing speech therapy for a substantial portion of one school year, missing two months of AP training, and inconsistent provision of highlighted and taped textbooks required by the IEP. The district took the sensible position that not every failure to provide an IEP-required service constitutes a denial of FAPE. The Fifth Circuit agreed. While recognizing that the parents’ demand for reimbursement was originally granted by a hearing officer (who found that the compensatory services did not cure the earlier failure to implement problem) the court found that approach too inflexible. According to the court, local school districts should retain flexibility in scheduling services and when necessary, providing compensatory services. Looking to the Sixth Circuit for guidance, the court concluded that “a local education agency’s failure to provide all the services and modifications outlined in an IEP does not constitute a per se violation of the IDEA.” As long as significant portions of the IEP are followed and the child receives educational benefit, there is no violation for a missed service or modification. (See also, Gillette v. Fairland Bd. Of Education, 725 F.Supp. 343 (S.D. Ohio 1989), rev’d on other grounds, 932 F.2d 551 (6th Cir. 1991)).

The proper analysis is not looking at the “trees” of individual services and modifications to determine violations, but to look at the forest, and decide if overall there has been educational benefit. According to the district, the student did in fact benefit from the school’s program. He had received passing grades and had advanced from grade to grade with his peers (which according to the Supreme Court in Rowley is good evidence of educational benefit) and had shown improvement on the Woodcock-Johnson as well. School wins.     

Question 7: Is there a violation if the district failed to implement a modification or a required service and the child failed?

The failure to implement coupled with the child’s failing grades is likely to be viewed as a violation. In an  Arlington, Texas school, a disabled student’s microcomputer teacher accepted late assignments, gave the student special instructions and extended deadlines, but the teacher did not use all of the accommodations provided for in the 504 plan. The student received a final grade of 68. OCR found a violation and the district agreed to resolve the allegation. Arlington (TX) ISD, 31 IDELR 87 (OCR 1999).  It would have been nice in the Arlington case to see what accommodations the teacher failed to implement, and to know specifically why the child failed (failure to turn in work, poor grades on major assignments, etc). That type of analysis should be a part of determining whether the student’s failure is the school’s fault (for failure to implement modifications) or the student’s fault for failure to do his part. It makes little sense educationally to pass a student whose efforts in class do not justify passing, simply because the district failed to implement a modification unrelated to his failure.

Question 8: Can the campus or district administration overrule 504 or special education evaluation and placement decisions?

No. Such meddling is asking for a violation. In Modoc County, OCR dealt with a troublesome problem: school administration exercising coercive control over committees, resulting in students not receiving the services determined necessary for FAPE. “The complainant, other parents of disabled students, and former staff told OCR that they have observed or directly experienced ongoing manipulation of the IEP process by MCOE officials in an effort to forego providing services and cutting costs. Many situations involve MCOE officials controlling IEP team decisions, disapproving requests or suggestions with with no explanation, imposing procedural delays, intimidating staff and parents, and instructing staff to generalize IEP’s.... [These officials] presented no educational justification for their decisions and accepted no arguments.” Modoc County (CA) Office of Education, 24 IDELR 580 (OCR 1996). This is an easy one: evaluation and placement decisions made by anyone other than the appropriate ARD Committee or IEP team are in violation of 104.35(c). 

Question 9: Is it a 504 violation when a district violates its own 504 procedures?

Not necessarily. A school district’s 504 policy required that it keep a written or electronic verbatim record of section 504 hearings. Both the complainant and district agree that the audio recording made of the hearing is of such poor quality as to be inaudible. Nevertheless, OCR finds no violation. “Although this is not an OCR requirement, the District is obligated to consistently implement its internal policies and procedures, as written.” Weldon Valley (CO) School, 31 IDELR 82 (OCR 1999).