Section 504 Considerations and Eligibility Decisions

In addition to developing intervention action plans for students, the I&RS Team is also responsible for determining if a student meets the eligibility criteria as stated under Section 504.

What is Section 504 of the Rehabilitation Act of 1973?

Section 504 is a major component of the Rehabilitation Act, which was passed in 1973.  It is basically civil rights legislation for persons with disabilities.  The legislation prohibits discrimination against individuals who meet the definition of disability in the act, and it applies to entities that receive federal funding.

Section 504 is a relatively simple part of the rehabilitation act.  It is only one sentence long.  Section 504 states: No otherwise qualified individual with a disability…shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or actively receiving federal financial assistance.

Since public schools receive federal funds, they must comply with Section 504.  The primary areas that public schools must deal with are those that focus on program accessibility, preschool, elementary and secondary.  Schools must afford students with disabilities with equal opportunities “to obtain the same result, to gain the same benefit or to reach the same level of achievement”, as students without disabilities.  Section 504 does not guarantee success for students with disabilities; it guarantees an equal opportunity for success.


Definition of Disability Under Section 504

The definition of disability under Section 504 is broader than the definition used in IDEA.  Unlike an eligibility system that is based on clinical categories of disabilities, eligibility for Section 504 is based on a more functional model.  Under 504, a person is considered to have a disability if that person:

  1. has a physical or mental impairment which substantially limits one or more of such person’s major life activities,
  2. has a record of such an impairment, or
  3. is regarded as having such an impairment

 Text Box: Note: The second and third prongs of definition only become a factor if discrimination has occurred because of the “record” or “history”.


 The Act defines a physical or mental impairment as:

(A) Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory; including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation; organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The second part of the definition relates to the impact of the physical or mental impairment on a major life activity.  The act defines a major life activity using a functional approach.  Major life activities include a wide variety of daily activities.  They include functions such as:

¨      caring for one’s self

¨      walking

¨      hearing

¨      performing manual tasks

¨      seeing

¨      speaking

¨      breathing

¨      learning

¨      working

 Basically any function that is performed routinely by individuals can be considered a major life activity.

Reasons for ineligibility for services under Section 504:

  1. When a condition does not substantially limit a major life activity;
  2. If a student, by using “mitigating measures” experiences no substantial limitation in any major life activity.  Mitigating measures are devices or practices that a person uses to correct of or reduce the effects of that person’s mental or physical impairment (e.g. corrective eye glasses and medication).

Evaluations and eligibility for services under Section 504:

  1. If the I&RS/504 team requires additional evaluations to make an eligibility decision the district must provide and/or pay for the evaluation.  The I&RS/504 team must seek written parental consent by sending out three “Notice of Consent for Evaluations”.  If the parent does not sign, the I&RS/504 Team can still proceed with the evaluations after 3 notices have been sent and 15 days have lapsed;
  2. Although not mandated in the statute, a medical diagnosis for a “physical impairment” and/or DSM IV diagnosis for a “mental impairment” by a mental health professional or a physician would be helpful in the determination.
  3. The district cannot mandate that the parent provide copies of outside medical and/or mental health evaluations with corresponding diagnosis; however, they would be helpful for making the decision.


Determining Substantial Limitations

 As stated provisionally, the identified disability must substantially limit one or more of a person’s major life activities.  The determination of whether or not a disability substantially limits a major life activity is subjective, since 504 and the ADA do not provide any operational criteria of substantial limitation (Reid & Katseyannis, 1995). “School personnel must use their professional judgment, collectively, to make this determination” (Smith, Section 504/Public Schools).  The I&RS/504 school-based teams determines eligibility, not physicians, psychologists, or other professionals who may have diagnosed a disability.

A diagnosis in and of itself does not automatically trigger 504 eligibility.  A substantial limitation of a major life activity must also be present.

Unfortunately, the Office of Civil Rights leaves the determination of substantial limitations to the school.

The best definition of substantially limits is from the Americans with Disabilities Act (ADA). The ADA defines Substantially limits as follows:

  1. unable to perform a major life activity that the average person in the general population can perform, or
  2. significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. (Section 1630.2(j)(1)(i)(ii))

Factors that should be considered when determining if the substantial limits requirement is met include (Section 1630.2(j)(2)(i)(ii)(iii):

  1. How severe is the impairment?
  2. What is the expected duration of the impairment?
  3. What will be the permanent or long term impact resulting from the impairment?

As indicated in the ADA definition of substantially limits the standard used to determine if a physical or mental impairment results in a substantial limitation is average performance in the general population not the optimal performance level for a person.  Please be mindful of the fact that when comparing the performance of a student being considered for 504 eligibility to the performance of average students in general population it does not necessarily mean 50th percentile.  Average could include low average.


Students Covered Under 504/ADA

The following are examples of children who MAY be eligible under 504/ADA:

 ¨      Students with ADD or ADHD who do not need special education

¨      Students with health impairments who do not need special education

¨      Students with physical impairments who do not need special education

¨      Students with various psychiatric impairments who not need special education

¨      Students showing a pattern of not benefiting from instruction being provided and intervention provided were unsuccessful

¨      Students found eligible for special education but parent/guardian refuses placement

¨      Students being considered for expulsion

¨      Students with a substance abuse issue


Summary Points

 1.      Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act are very comprehensive civil rights laws that protect individuals with disabilities.  Section 504 applies to entities that receive federal funds, and therefore applies to the vast majority of public schools.  The ADA applies to virtually all entities except churches and private clubs.  As a result of a broad, functional definition of disability, there are many students eligible for protections and services under Section 504 and the ADA that are not eligible for services under IDEA.

2.      In order to comply with Section 504 and the ADA, schools must identify students who are eligible for 504/ADA protections and services, and implement procedures to ensure that they receive a free appropriate public education.  For many students, this results in a need for schools to develop and implement accommodations and modifications based on individual student needs.

3.      Section 504 and the ADA apply to all ages of individuals.  Therefore, schools must address 504/ADA issues with students, employees, and the parents of students.

4.      Disciplining students protected by Section 504 and the ADA follows the same guidelines used with IDEA students.  These students cannot be expelled or suspended for a long term (more than 10 cumulative days) without a manifest determination.  If a manifest determination indicated that the behavior is related to the disability, then the student may not be expelled.