A 2nd grader with a peanut allergy. A middle school student who is constantly distracted. A high school student suffering from depression. What do these students have in common? They are entitled to reasonable accommodations that enable them to participate in school.
Section 504 of the Rehabilitation Act of 1973, an important, yet sometimes overlooked law, ensures that students who have physical or mental conditions that substantially limit a major life activity receive reasonable accommodations to enable them to learn and participate in school. The law applies to all public schools (including charter schools) and some private schools that receive federal funding. It is based on the principle that a child cannot be discriminated against or excluded from participation in educational opportunities due to disability.
A Section 504 or Accommodations Plan is sometimes confused with an Individualized Education Program (IEP), but they are distinct from each other. An IEP addresses the needs of a child whose disabilities so significantly interfere with learning that the child needs specially designed instruction to make educational progress. A 504 Plan should be considered anytime a child’s disability substantially interferes with a major life activity, such as learning, speaking, or focusing, that affects the child in a school setting.
Section 504 imposes specific legal obligations on schools to proactively identify and evaluate students who may have a “qualifying disability” and provide them accommodations to ensure that they receive a free and appropriate public education.
Despite this significant protection, many eligible children fail to receive needed accommodations. In recent years, the Education Law Center has handled numerous truancy cases in which the main cause of a child’s absence has been the failure of the school to recognize a child’s need for a Section 504 Plan. The child is unable to consistently attend school due to the absence of accommodations to address a chronic condition, such as asthma, or a “hidden disability,” such as anxiety or depression.
Who is eligible? Under the Americans with Disabilities Act Amendments Act of 2008 and Section 504, students are considered eligible if they have a physical or mental impairment that results in a substantial limitation of one or more “major life activities,” such as performing manual tasks, walking, seeing, hearing, speaking, breathing, focusing, and learning. Although 504 Plans often apply to conditions such as asthma or diabetes, the list of qualifying conditions is extensive and also includes attention deficit hyperactivity disorder, bipolar disorder, alcoholism, and many more.
What is the process? Schools must identify students who may need Section 504 Plans, but parents may request an evaluation in writing to determine eligibility. In that request, share any documentation you have relating to your child’s disability. The District must either agree to an evaluation and give you a “Permission to Evaluate” form, or provide a Procedural Safeguards Notice of your right to challenge the denial of your request.
If an evaluation happens, the school must consider all areas of suspected disability. If your child is found to be eligible, school officials must work with you to develop a 504 Plan. In developing the plan, consider consulting online resources. Many websites for specific conditions provide detailed and comprehensive sample 504 Plans to accommodate students with different types of disabilities. The proposed plan must be reviewed and signed by a parent. Children must be re-evaluated every three years and before any change in placement, but parents may request changes at any time.
What is the scope of protection? Section 504 provides accommodations during the school day and also ensures that a child has an equal opportunity to participate in the school program and extracurricular activities. Schools must provide accommodations to students so long as they are reasonable and do not impose an undue hardship on the school. Examples include special transportation, adjustment in the student’s roster, and the administration of medication. Unlike eligibility for services in the special education process, having a Section 504 Plan does not provide additional procedural protections in the school discipline process. However, a school cannot discriminate against your child on the basis of his or her disability.
Ensuring the rights of students with disabilities through Section 504 is a critical legal protection that can support children and allow them to be successful in school.
Maura McInerney is senior attorney at the Education Law Center of Pennsylvania.