504 law dr. kritsonis

THOSE OTHER LAWS: §504 AND THE ADA
Presented by David M. Richards, Attorney at Law
RICHARDS LINDSAY & MARTIN, L.LP.
13740 Research Blvd. • Suite M-5 • Austin, Texas 78750
Telephone (512) 918-0051 • Facsimile (512) 918-3013 © 1999
RICHARDS LINDSAY & MARUN, LX.P. All Rights Reserved.

I. A LITTLE HISTORY
A. The Rehabilitation Act of 1973
In 1973 when the Rehabilitation Act was passed, little was being done on a federal level to ensure that
disabled individuals had equal access to federally funded programs. The single paragraph we now refer
to as §504 of the Rehabilitation Act provided that

"No otherwise qualified individual with a disability in the United States, as defined in section
706(8) of this title, shall, solely by reason of her or his handicap, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance or under any program or activity conducted by any
Executive agency or by the United States Postal Service...." —29 U.S.C. § 794(a) (1973).

In §504, the focus is on non-discrimination. As applied to the schools, the language broadly prohibits the
denial of public education participation or enjoyment of the benefits offered by public school programs
because of a child's disability. To encourage compliance, Congress did not create an additional source of
federal funding, but instead, conditioned future receipt of federal funds on the district's compliance with
the new requirements.

B. The Individuals with Disabilities Education Act (IDEA)

In the IDEA (formerly PL 94-142, a/k/a Education of the Handicapped Act "EHA"), Congress provided
some of the necessary funding as long as states agreed to implement fairly strict procedural protections
designed to empower parents to serve as champions for their disabled children. Not all disabled children
will qualify as having one of the disabilities which give rise to IDEA eligibility as the IDEA focuses on
students with fairly severe disabilities. Once eligible, the child has access to a unique educational
program designed to meets her needs. The program is created utilizing a wide range of special education
and related services in a continuum of settings. The child's parents are endowed with considerable rights
to notice and consent, are consensus members on ARD committees, and have the ability to appeal
decisions of the ARD committee with which they disagree.

C. The Americans With Disabilities Act (ADA)
The ADA was passed in 1990, and seems to pick up where the Rehabilitation Act left off. Borrowing from
the §504 definition of disabled person, and using the familiar three-pronged approach to eligibility (has a
physical or mental impairment, a record of an impairment, or is regarded as having an impairment), the
ADA applied those standards to most private sector businesses, and sought to eliminate barriers to
disabled access in buildings, transportation, and communication. To a large degree, the passage of the
ADA supplants the employment provisions of §504, reinforces the accessibility requirements of §504 with
more specific regulations, but does little to change a District's obligations to provide educational services
to its disabled students. The courts have interpreted 504 and the ADA almost identically, applying
doctrines and interpretations freely between the two laws. Bragdon v. Abbott, 118 S.Ct. 2196 (1998).

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D. How do the three laws interact?
The initial purpose to be served by §504 (with reference to education), was to provide meaningful access
to the public schools for students with disabilities. Some of that role is how shared with the IDEA, under
which students with the most severe disabilities are now served. What remains in §504 is an anti-
discrimination statute which requires that the educational needs of disabled students are met as
adequately as the needs of nondisabled students. That nondiscrimination protection extends to IDEA
students as well. §504 likewise retains residual responsibility to provide a free appropriate public
education (FAPE) to qualifying disabled students whose disabilities are not so severe as to create IDEA
eligibility. These are the "§504 Only" students upon whom schools must focus their efforts under §504.

II. FOR 504-ONLY KIDS, THE 504 FREE APPROPRIATE PUBLIC EDUCATION
A. Eligibility for a FAPE under §504
"504-only students" are those who are entitled to the protections of §504, but are not also eligible under
the IDEA. "A student may be disabled within the meaning of Section 504 and therefore entitled to the
rights and protection of Section 504 and its regulations, even though the student may not be eligible for
special education under the IDEA." Anaheim (CA) Union High School Dist, 20IDELR185,186 (OCR 1993).
To be eligible for a free appropriate public education under §504, one must be "qualified" [which
roughly equates to being between three and twenty-two years of age and a resident of the school district,
34 C.F.R §104.3(k)(2).] and "handicapped." Note that since this regulation was drafted, the Americans
With Disabilities Act was passed, and the term "handicapped" has been replaced with "disabled."

"Handicapped persons" means any person who
(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii)
has a record of such impairment, or
(iii) is regarded as having such an impairment. §104.3(j)(l). [References to particular sections of the Code of
Federal Regulations are to Title 34 unless otherwise indicated in the text]

1. Physical or Mental Impairment

Unlike the IDEA, §504 does not list a few disabilities (each with strict eligibility criteria) which result
in eligibility. Instead, a broad formula is used to include many more disabilities. Specific physical or
mental impairments are not listed in the regulations, "because of the difficulty of ensuring the
comprehensiveness of any such list." Appendix A to the §504 Regulations [hereinafter "Appendix A"], p.
419. The very narrow language used in the eligibility requirements under the IDEA reflects the fact that
proportionally fewer children should qualify with the severe types of IDEA disabilities than the more
general, less-severe, disabilities which will qualify under §504.

Current versus Historical or Perceived Disabilities: Different Eligibility. The first prong of the
definition of "handicapped person" focuses on current disabilities. The second and third prongs cover
persons with a history of a disability or persons who are perceived as having a disability. The second and
third prongs create a very different type of §504 eligibility. While a "record of" an impairment or being
"regarded as having" an impairment by the recipient give rise to anti-discrimination protection under
§504, these two prongs do not trigger the school district's obligation to provide a free appropriate public
education or FAPE. "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 (OCR 1992) [bracketed material added by author].

Put more bluntly: "Those two prongs of the definition are legal fictions. They are meant to reach
situations where individuals either never were or are not currently handicapped, but are treated by
others as if they were." Id. Consequently, the District has no duty to refer, evaluate, or place students
who qualify under prongs two and three. The only duty as to these students is to not discriminate
against them on the basis of the history of an impairment or the perception that the child is impaired.

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While the "impairment" language is broad, some disabilities are excluded from §504. Throughout the
regulations there is repeated concern that great care be taken so that students are not misclassified. Of
particular concern were students with no disabilities who because of other factors (such as poor English
skills or lack of previous educational opportunity) may be incorrectly classified as disabled under §504.

"The definition of handicapped person also includes specific limitations on what persons are
classified as handicapped under the regulation. The first of the three parts of the definition specifies
that only physical and mental handicaps are included. Thus, environmental, cultural, and economic
disadvantage are not in themselves covered, nor are prison records, age, or homosexuality. Of
course, if a person who has any of these characteristics also has a physical or mental handicap, the
person is included within the definition of handicapped person." Appendix A, p. 419.

For years, OCR has made the over-identification of minority students into disability programs an
enforcement priority. OCR understands that districts that are not sophisticated in their identification and
evaluation processes may misclassify minority students due to language proficiency, cultural differences,
or educational disadvantage. The following are prime example of such cases:

•OCR found discrimination against minorities in a district's disability referral process where referral
forms did not include information regarding primary language, student records failed to indicate
procedures were followed to ensure that language proficiency was not a factor in the students'
disability evaluation process, committees failed to question validity" of testing on language
proficiency grounds, and parents were not always notified of their rights in their native language. San
Luis Valley (CO) Board of Cooperative Services, 21IDELR 304 (OCR 1994).

•District failed to ensure that students were not placed in disability programs on the basis of criteria
affected by their limited English proficiency. Students who were in need of both alternative language
programming and disability assistance did not receive both modalities of services. Ogden (UT) City
School District, 21 IDELR 387 (OCR 1994)

Exceptions to "Physical or Mental Impairment." Homosexuality and bisexuality are not considered
impairments under §504. 2992 OCR Memorandum on Differences Between ADA Title II and §504 Regulations
(OCR 1992). Transvestitism was excluded under §504 by the Fair Housing Amendments Act of 1988. The
following are not disabilities under ADA, and may or may not be disabilities under §504 (1)...pedophilia,
exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments, or other
sexual behavior disorders; (2) compulsive gambling, (3) kleptomania, (4) pyromania. Americans With
Disabilities Act, 42 U.S.C. §12211.1992 OCR Memorandum on Differences, see above.

2. Substantial Limitation

Substantial Limitation is Required. Several comments observed the lack of any definition in the
proposed regulation of the phrase 'substantially limits.' The Department does not believe that a definition
of this term is possible at this time." Appendix A, p. 419. OCR has ruled that the phrase is to be defined
by the local educational agency, and not OCR. Letter to McKethan, 23 IDELR 504 (OCR 1994). Schools can
receive some guidance from the definition in the implementing regulations to the Americans With
Disabilities Act. Under the ADA, a major life activity is substantially limited when a person is

"Unable to perform a major life activity that the average person in the general population can
perform," 29 C.F.R. §1630.2(j).(l)(i)- EXAMPLE: An individual with paralyzed legs is substantially
limited in the major life activity of walking since his impairment makes him unable to walk (unable
to perform the major life activity of walking). — OR—

"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." 29


C.F.R. §1630.2(j).(l)(ii). EXAMPLE: A person is only able to walk for brief periods of time, can only
walk with the assistance of a prosthetic leg or the person falls every few steps.

Remember that for §504 purposes, OCR has issued no definition of "substantially limits" and has
instructed that Districts are to define the phrase. For §504 compliance purposes, Districts are not required
to use the definitions provided in the ADA, but may certainly look to them for guidance.

Some interesting "substantial limitation" issues:

Students with A's & B's: 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 m. 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 §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).

Child only needs medication: Some students may have a disability that, with medication administered at
school, requires no additional accommodations. For these children, it makes little sense to qualify them
§504 merely to provide them with a service which schools perform for all regular education students. TEX.
EDUC. CODE § 22.052. If modifications are required in addition to medication, or if the age of the student
or severity of the disability require the related service of administering medication (so that the burden is
on the school to ensure timely receipt of the medication), a 504 referral may be necessary.

Good teachers modify all the time for students: It is only when a qualified disabled child needs a
systematic, consistently implemented battery of modifications in order to have his needs met as
adequately as nondisabled children that §504 becomes necessary.

Behavior-only Students: A common outgrowth of the misperception on serving only students with
impairments to learning is the notion that students who have behavior problems only (and no cognitive
troubles) cannot qualify under §504. OCR and the courts have recognized that students with disabilities
affecting behavioral controls may qualify, independent of cognitive difficulties. Lyons v. Smith, 20 IDELR
164 (D.C.D.C. 1993); School Administrative Unit #3S, 19 IDELR 186 (OCR 1992).

Temporary disabilities, such as broken limbs, are not addressed under IDEA. The "Other Health
Impaired" eligibility category addresses "chronic" health conditions, and the "Orthopedically Impaired"
category addresses "permanent" disfigurements or anatomical losses. Nevertheless, in various policy
letters, the Department of Education has determined that a temporary disability can constitute a
physical impairment that substantially limits a major life activity such that §504 services might be
required. See, e.g., Ventura (CA) Unified School District, 17 EHLR 854 (OCR 1991). The proper inquiry "is
not whether the impairment is temporary or permanent; rather the appropriate inquiry is whether the
impairment substantially limits one or more major life activities." Letter to Wright, (OCR 1993). That
determination must be made on a case-by-case basis, considering the nature, severity, duration or
expected duration and the permanent or long term impact resulting from the impairment." Id. Although
the disability is of a temporary nature, so too is a child's property right to public education, and his
ability to be educated during the time when his mind is at its most curious and most capable of
absorbing information.

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Some may say that schools always took care of these situations informally in the past, and that the
§504 process just adds bureaucracy and paperwork to the school's efforts to address the problem.
Although it may be true that schools informally addressed these situations without §504 in the
past, using the §504 process helps ensure consistency, accountability, and better decisionmaking.
In addition, procedural compliance is necessary to satisfy OCR.

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. 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 their rights. Temple (TX) ISD, 25 IDELR 232 (OCR 1996).

Does this mean that every child who breaks a bone or sprains an ankle needs to be referred to §504?
No. Schools only need to refer and evaluate those children who are suspected of needing §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.

3. Major Life Activities

"'Major life activities' means functions such as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." §104.3(j)(2)(ii) (emphasis added). This list is
not exhaustive. The phrase "major life activities" is calculated to include "those basic activities that the
average person in the general population can perform with little or no difficulty." ADA, 29 C.F.R.
§1630.2(1).

The student need not have a disability limiting the major life activity of learning to qualify. "Students
may have a disability that in no way affects their ability to learn, yet they may need extra help of some
kind from the district to access learning. For instance, a child may have very severe asthma (affecting the
major life activity of breathing) that requires regular medication and regular use of an inhaler while in
school. Without regular administration of the medication and inhaler, the child cannot remain in school."
Letter to McKethan, 23 IDELR 504 (OCR 1994).

4. Bottom Line on §504 Eligibility

Two main factors play into eligibility. First, is there a physical or mental impairment? Second, does that
physical or mental impairment substantially limit one or more major life activities? While the regulations
provide no definition of a substantial limitation, the District may look to the ADA for guidance.
Additionally, while a child may be eligible under the criteria of having a record of an impairment or
being regarded as having an impairment, his eligibility is limited to the anti-discrimination provisions.
Without a current impairment, there is no educational need, and no eligibility for educational services.

B. The 504 Process 1.
Child Find

The District cannot wait until eligible children present themselves, requesting services. The District has
an affirmative duty to conduct a "child-find" at least annually, during which the District must make
efforts to notify disabled students and their parents of the District's obligations to provide a free
appropriate public education. §104.32. Note that this duty-extends to all disabled students (between the
ages of 3 and 22) residing in the District, including those currently attending private or homeschool.


Do not confuse the child-find duty with a duty to serve §504 students whose parents have placed them
in private or homeschools. With regard to those students, 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, FT or other special education or related service components.

2. 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). Once the District suspects a current disability and need for services, the District moves to evaluate.

3. The 504 Committee

The Section 504 Committee is responsible for 504 evaluation and placement. Unlike the IDEA, 504 does
not dictate the titles or people who must be members of the Committee. Instead, the regulations require
that the 504 Committee is a group of persons, including persons knowledgeable about the child, the
meaning of the evaluation data, and the placement options. §104.35(c)(3). The parents are not required
members of the Committee [although best practice dictates that they have involvement in the evaluation
and placement process, and receive the notices required by the procedural protection provision.] There is
no maximum number of members, and the regulations provide no guidance on the level of knowledge
required of the members.

4. Evaluation

Parental consent is required prior to initial evaluation. "OCR has determined, through policy
clarification, that the Section 504 regulation... requires parental consent prior to the conduct of initial
student evaluation procedures!.] Parental discretion involving student assessment/evaluation is an
inherent part of the regulation and parental discretion is an appropriate and necessary policy component
at the initial evaluation stage." Letter to Durheim, 27 IDELR 380 (OCR 1997).

"Evaluation" does not necessarily mean "test." 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. §104.35(c)(l). Since specific or highly technical eligibility criteria are not part of the §504
regulations, formal testing is not required to determine eligibility. Letter to Williams, 21 IDELR 73 (OCR
1994). For example, 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. If formal testing is pursued, the regulations require that the tests are properly
selected and performed by trained personnel in the manner prescribed by the test's creator. §104.35(b)(2).

When interpreting evaluation data and making placement decisions, the District is required to "draw
upon information from a variety of sources, including aptitude and achievement tests, teacher
recommendations, physical condition, social or cultural background, and adaptive behavior."
§104.35(c)(l). Information obtained from all such sources is to be documented and carefully considered.
§104.35(c)(2). "[This] paragraph requires a recipient to draw upon a variety of sources in the evaluation
process so that the possibility of error in classification is minimized." Appendix A, p. 430.

A comprehensive reevaluation is required periodically for each eligible student. Districts are
considered to be in compliance if they complete revaluations every three years (as they do with IDEA
students). As a practical matter, and to ensure some continuity in the child's program, Districts should

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consider an annual review of the child to determine whether changes are necessary due to differences in
the child's schedule in the coming year or changes in the child's abilities and disabilities.

Once the information-has been gathered by the §504 Committee, it will determine eligibility based on the
criteria previously addressed. If the child is found to be eligible, the Committee will create an
accommodation plan for the child which describes the child's "placement."

5. Placement

Do not be confused by the word "placement." In the §504 context, "placement" simply means the
regular education classroom with individually planned modifications. It does not literally mean taking
the child out of the regular classroom and putting him someplace else. Since 504 students have less severe
disabilities than their special education counterparts, they will very likely not demand the high level of
modification or separate classes sometimes required for students in special education. For the child with
ADD served under §504, for example, "placement" may include such things as an assignment notebook, a
seat close to the teacher, and shortened assignments. [See the discussion of placement of 504 students in special
education settings in Section IV of this paper on Border Issues.]

The District must ensure that the placement decision is made by a group of persons, including persons
knowledgeable about the child, the meaning of the evaluation data, and the placement options.
§104.35(c)(3). The placement must likewise be consistent with the non-segregation mandate or least
restrictive environment provision (discussed below). §104,35(c)(4).

6. The Concept of FAPE: Free Appropriate Public Education

Each District has the duty to provide a free appropriate public education (FAPE) to each qualified
disabled person within the district's boundaries regardless of the severity of the student's disability.
§104.33(a). A FAPE has several distinct parts: (1) it is education provided at no cost to the parents, (2) it is
designed to provide educational benefit despite the child's disabilities, [it is "appropriate"] and (3) it is
provided in the environment that affords the greatest exposure to non-disabled peers.

a. No cost to the Parents

Simply put, this provision of FAPE mandates that the educational costs to be paid by parents of a
disabled child attending public school are no different than those paid by parents of nondisabled
students. So, while the school cannot charge the disabled child or her parents for highlighted textbooks or
special manipulatives required by her disability for her to receive educational benefit, it may charge her
for items for which all students are charged (costs of field trips, tickets to football or basketball games,
purchase price of school uniforms, yearbooks, class pictures, etc.). §104.33(c)(l).

While the "no cost" regulations specifically provide for residential placement at district expense under
§504, §104.33(c)(3)., this is an unlikely result. Should a child be so disabled that a residential facility is the
least restrictive environment in which that child can receive educational benefit, it is almost a certainty
that the child will qualify under IDEA, and be placed under IDEA.

b. Appropriate Education

Under the regulations, an appropriate education is a blend of regular or special education and related
aids and services created specifically for this student which is designed to meet his needs as adequately
as the needs of nonhandicapped persons are met, and which satisfies the requirements for least restrictive
environment, proper evaluation and placement, and procedural safeguards. §104.33(b)(l). More
succinctly, it is a program created and maintained pursuant to the procedural requirements of the
regulations that gives the disabled child an equal chance to succeed in the classroom.


An accommodation plan is created for the §504 student. This plan can have many names, including IAP
(individual accommodation plan). The plan modifies the regular classroom so that the student has equal
access to the educational benefits of the school's program. The District cannot delegate away its
responsibility to provide a FAPE. Even if it chooses to place the §504 child outside the District, the
District and not the entity where the child was placed, bears ultimate responsibility for providing the
FAPE. §104.33(b)(3).
While curricular modifications may be available to special education students (i.e., reduced mastery of
the TEKS), there is no modification of the essential elements for §504 students. 504 is not about
reducing expectations for disabled students, but providing the types of accommodations that will
compensate for their disabilities so that §504 students have an equal chance to compete in class.
Behavior Management Plans. Should the student exhibit behaviors that are recurring or significantly
impact upon education and do not seem to be diminishing under the regular discipline management
plan, they need to be addressed in a Behavior Management Plan (BMP). Once in place, the BMP and the
IAP must be followed to avoid violation of federal law. Failure to have a BMP in place where one is
required is not only a violation of federal law, it may also prevent the school from moving the student to
a more restrictive setting because the District will be unable to demonstrate that the student could not be
served in the regular education classroom with modifications because behavioral modification (the BMP)
was never properly attempted.
Ci. Least Restrictive Environment

The least restrictive environment is the setting that allows the disabled student the maximum
exposure to nondisabled peers while still allowing him to receive an appropriate education.
§104.34(a)(l). Both IDEA arid §504 create the presumption that each disabled child can be educated in the
regular classroom. If the District believes that some setting other than the regular classroom is necessary
for the child to receive opportunity for 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. Should the District segregate disabled students, on buses, at recess,
during lunch, classtime, field trips, etc., it must stand ready to demonstrate that the segregation was
necessary for the disabled child or children in question to benefit. The presumption is that the disabled
child will be educated with regular education children. §104.34(b).
•§504 presumes a regular classroom placement for the child (or education in the mainstream). This
presumption also exists in IDEA, but is even stronger in §504 since the disabilities encountered in
§504 students are typically less severe. A placement other than the regular -classroom is only
appropriate if the disabled child cannot be educated satisfactorily in the regular classroom with
supplementary aids and services such as a behavior management plan, classroom modifications,
assistive devices, counselling, etc. §104.34(a).
•Disruption of the regular classroom by the disabled child is a factor in determining
appropriateness of the regular class. "[I]t should be stressed that, where a handicapped student is so
disruptive in a regular classroom that the education of other students is significantly impaired, the
needs of the handicapped child cannot be met in that environment. Therefore, regular placement
would not be appropriate to his or her needs and would not be required by § 104.34." Appendix A, p.
429. Note, however, that if supplementary aids and services have not been tried, or a behavior
management plan is not in place, disruption by the student does not mean that he cannot be educated
in the regular classroom. His disruption means that the District needs to modify appropriately, and
then make the determination.

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7. Procedural Safeguards & Discipline

The procedural safeguards afforded to parents under §504 are much less extensive than those under
the IDEA. Each District "shall establish and implement, with respect to actions regarding the
identification, evaluation or educational placement of persons who, because of handicap, need or are
believed to need special instruction or related services, a system of procedural safeguards' that includes
(1) notice, [which includes child find, notice of parent rights, prior notice of evaluations and meetings,
and notice of the results/actions taken at 504 Committee meetings] (2) an opportunity for the parents or
guardian of the person to examine relevant records, and (3) an impartial hearing with an opportunity for
participation by the person's parents or guardian and representation by counsel, and (4) a review
procedure. §104.36. .

Current Drug/Alcohol Exception to the Procedural Safeguard. "For purposes of programs and activities
providing educational services, local educational agencies may take disciplinary action pertaining to the
use or possession of illegal drugs or alcohol against any handicapped student who currently s engaging in
the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary artion is taken
against nonhandicapped students. Furthermore, the due process procedures at 34 C.F.R. 104.36,
Procedural Safeguard, shall not apply to such disciplinary action." 29 U.S.C. §706 (8)(C)(iv) (italics
added).

OCR has interpreted this phrase to mean that if a student is currently using illegal drujs or alcohol,
and is to be disciplined by the school for use or possession, the student loses the procedural
protections provided by §504, including the manifestation determination prior tc a change in
placement for disciplinary reasons even if the child has another disability (for example, AD(H)D) that
could be related to the misconduct. 1991 OCR Polio/ Memo on ADA Amendments to §504 (OCR 1991).

The Ten-Day Rule and Manifestation Determination. Students who qualify under §504 may not be
subjected to a disciplinary change in placement for more than 10 days unless the appropriate §504
committee first determines that the behavior giving rise to the discipline was not linked to the student's
handicapping condition or to an inappropriate placement. To do otherwise is to punish the :hild because
of his disability. Removals for less than ten days can be effected without §504 Committee approval. Note,
however, a series of small removals (including teacher removals under §37.002 of the Education Code)
over the course of the school year that exceeds ten total days may constitute a pattern cf exclusions
which is itself a violation of federal law.

Does the 45-Day Rule Apply? While originally an Amendment to the IDEA, the Jeffords Amendment
(which allowed a school to change the placement of a disabled child for up to 45 days when the child
brings a gun to school even if the behavior is related to disability) was applied by OCR to the §504 child.
As a result, for 504 students who brought guns to school (or who possessed guns at school) a 45-day
change of placement could occur, even if the behavior was related to the child's disability. Response to
Zirkel, 22 IDELR 667 (OCR 1995). The reauthorization of IDEA has nullified the Jeffords Amendment (as
the statute to which the amendment was made has now been replaced). In its place is i 45-day rule
applying to drugs and other weapons that is much broader than Jeffords, but which applies Dnly to IDEA
students. Until OCR determines that the 45-day rule also applies to §504 student (and we believe it
eventually will make that determination), schools should not assume that the new 45-dsy drugs and
weapons rule applies to §504-only students.

III. §504 ANTI-DISCRIMINATION PROTECTION FOR IDEA & 504 STUDENTS
E LIMINATING DISCRIMINATION BASED ON MISUNDERSTANDING & STEREOTYPE

While the prong under which a child gains eligibility is important for FAPE purposes, students eligible
for §504 under any of the three prongs (and students served under the IDEA) receive the tenefit of anti-
discrimination protection. Since 504 is a civil rights statute, it concentrates primarily on the notion.that

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disabled persons should not be denied equal opportunity to access and benefit from programs receiving
federal financial assistance. That protection applies not only to individuals with a current disability, but
also to persons who have a record of a disability, or who may be "regarded as" or perceived as being
disabled. The 504 regulations are calculated to address the prejudices and stereotypes that persist in
society about disabled individuals. In 1987, the U.S. Supreme Court analyzed the "regarded as" language,
finding that "[e]ven those who suffer or have recovered from such noninfectious diseases as epilepsy or
cancer have faced discrimination based on the irrational fear that they might be contagious." School Board
of Nassau County v. Arline, 480 U.S. 273, 284 (1987). "By amending the definition of "handicapped
individual" to include not only those who are actually physically impaired, but also those who are
regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress
acknowledged that society's accumulated myths and fears about disability and disease are as
handicapping as are the physical limitations that flow from actual impairment." Id.

While not pretending to examine every potential form of disability discrimination, this section will
investigate the more common nondiscrimination aspects of the Act that do not pertain to the provision of
educational accommodations, but nevertheless affect public schools and their relationships with disabled
students.

A. Facilities (comparability and accessibility)
Comparability. Section 504 regulations require that districts "ensure that the facility and the services and
activities provided therein are comparable to the other facilities... of the recipient." 34 C.F.R. §104.34(c).
This requirement goes beyond mere accessibility, and requires that facilities provided for disabled
students be of comparable quality and condition. Hopefully, as there are fewer and fewer separate
facilities for disabled students, this provision will fall further into irrelevance.

Accessibility. An important facet of accommodation is accessibility of facilities. After all, the quality of
the educational program in a school is of little benefit to a student who cannot manage the stairs to enter.
The age of the facility is critical in determining the standard of nondiscrimination which applies.

For existing facilities (those constructed before June 3,1977), both 504 and Title II of the ADA "require
public entities and recipients to operate programs or activities so that the programs and activities, when
viewed in their entirety, are readily accessible to and usable by individuals with disabilities. Neither
regulation requires public entities or recipients to make all existing facilities or every part of the existing
facility accessible to and usable by individuals with disabilities, if the service, activity or program as a
whole is.accessible." Dade County (FL) School District, 23 IDELR 838, 840 (OCR 1995). So, where school
officials at an older facility accommodate "students with disabilities by rearranging class schedules,
moving classes, and ensuring that the elevator is usable between class periods!,]" 504 is satisfied. Id.

For new construction, the accessibility standard is different. Instead of looking at the program as a
whole, accessibility of the parts is required. The facility, and each part of the facility, must be "readily
accessible to and usable by handicapped persons." 34 C.F.R. 104.23 (a)(emphasis added). Under this new
construction standard, OCR analyzed two playgrounds that had raised barriers and inaccessible
surfacing that prevents access by disabled persons and found that 504 was violated. Mill Valley (CA)
Elementary School District, 23 IDELR 1190 (OCR 1995). Note: Because of a strange anomaly in the
definition of "existing facility" under the ADA, satisfying the ADA for a building constructed on or after
June 3, 1977, but before January 26,1992, may not always satisfy 504.

B. NonAcademic Services
As with extracurricular activities, districts must provide nonacademic services or benefits in a
nondiscriminatory manner that allows disabled students an equal opportunity to participate. 34 C.F.R.
§104.37(a)(l). In the student context, this issue arises primarily with respect to after-school programs,
summer programs, field trips and recreational activities, all of which must be provided in a manner that

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allows for disabled students' participation. Schools may not condition the provision of the nonacademic
service on the parent's attendance or provision of a babysitter, exclude disabled students, or charge a
higher cost than that charged nondisabled students' parents. See OCR Senior Staff Memorandum, 17 EHLR
1233 (January 3,1990). The general rule is violated when a district excludes disabled students from field
trips (accomplished by only sending home notice of the trip to students in the regular eighth grade
classes but not to the eighth grade class serving developmental^ disabled students) Mt. Gilead Ohio
Exempted Village School District, 20 IDELR 765 (OCR 1993); or prevents disabled students from
participating in the school's honor roll, Forland, EHLR 353:127 (OCR 1988); or prohibits disabled students
from participation in private music lessons by holding the lessons in inaccessible parts of the school.
Akron Ohio School District, 19 IDELR 793 (OCR 1993). A special provision instructs counselors to not
counsel disabled students to "more restrictive career objectives that nondisabled students with similar
interests and abilities." §104.37(b).

C. Honor Roll, Class Rankings, and Notations on Report Cards & Transcripts
For some time, the issue of recognition of academic excellence of disabled students, their class ranking,
and notations for modified classes, has been a rather murky area of §504. For years, OCR has been issuing
letters indicating that districts must somehow recognize academic excellence of high-achieving disabled
students, taking their disability into consideration, but OCR has never been exactly clear on how that is to
be accomplished. See, e.g., Forland (MO) R-III School District, EHLR 353:127 (OCR 1988); Fort Smith (AR)
Public School, 20 IDELR 97 (OCR 1993). In 1996, OCR issued a letter attempting to clarify the issues once
and for all. Letter to Runkel, 25 IDELR 387 (OCR 1996). Although some of the language is still confusing,
the following summary distills the clear import of OCR's opinion on the issues of disabled students and
honor roll, class ranking, and notations on report cards and transcripts. The main gist of the letter is that
academic excellence in disabled students, in light of their disabilities, should be recognized by districts

1. Eligibility for honor roll and academic awards cannot be denied automatically on the basis of
disability status under IDEA or §504. Below-grade level performance should not automatically
exclude a student from consideration.

2. Notations on permanent transcripts are only appropriate to designate a modified curriculum (i.e.
reduced mastery criteria/modified essential elements)—not instructional delivery modifications.

3. School districts can establish eligibility criteria for class ranking (i.e. weighted classes) as long as
IDEA or §504 students are not arbitrarily excluded. The system must be based on "objective
rating criteria" and special education or modified courses should not be weighted more lightly
automatically.

D. Extracurricular Activities
Under §504, disabled students must be provided an equal opportunity to participate in extracurricular
activities. 34 C.F.R. §104.37(a)(l). Disabled students may try out for any extracurricular activity they
desire, but they must generally meet the regular performance standards applied to all students. For
example, a student with Tourette's Syndrome was not subjected to discrimination when he was allowed
to try out, albeit unsuccessfully, for a school baseball team. 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 vying for two openings, the claimant
finished eighth, and did not receive a position on the team. OCR found no violation since the "student
was given an equal opportunity to compete for a position." Maryville City (TN) School District, 25 IDELR
154 (OCR 1996).

Students must submit to the general behavioral, academic, and performance standards applied to
nondisabled students. For example, no 504 violation was found when a district suspended a student
from participation in sports for four months due to his criminal conviction. The suspension was required

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by district policy and there was no evidence of discriminatory application. Cabarrus County (NO School
District, 22 IDELR 506 (OCR 1995). Similarly, a school district did not violate §504 when it removed a
disabled student from the wrestling team for failing to follow instructions during practice, since
nondisabled students were also removed for the same offense. Carmel (NY) Central School District, 23
IDELR 1195 (OCR 1995).

Disability does not offer a "free ride" to participate in competitive sports. Some accommodations/
however/ may be required in order for students to have an "equal opportunity to participate." And
those accommodations can be expensive. A district in West Virginia violated §504, for example, by failing
to provide a deaf student with a sign language interpreter for use in basketball games and practices.
Lambert v. West Virginia State Bd. of Education, 21 IDELR 647 (W. Va. 1994).

The good news is that although OCR does not recognize the "reasonable" limitation on accommodations
that affect a FAPE, it appears to recognize that accommodations to allow for participation in
extracurricular/nonacademic activities are subject to the "reasonable" limitation. An accommodation in
the field of extracurricular or nonacademic activities becomes an unreasonable accommodation when
it would require a "fundamental alteration in the nature of a program," which in turn means "undue
financial and administrative burdens." See OCR SENIOR STAFF MEMORANDA, "Guidance on the
Application of Section 504 to Noneducational Programs of Recipients of Federal Financial Assistance,"
January 3,1990. For example, a 17-year-old student with Down's Syndrome alleged that the district failed
to allow him to participate in extracurricular activities to the maximum possible extent. The student was
co-manager of the varsity basketball team, but was not allowed on away games, and was not allowed to
sit with the team at home games. The school district showed that the student required too much
supervision on away games, could not use the phone or count change, could not keep a shot chart, and
could not perform most of the duties of a manager. In addition, the student was not alert enough to get
out of the way of an incoming play on the bench. Despite accommodations the student was unable to
perform the basic functions of the position of manager, and thus, was reassigned to co-manager. OCR
found no violation of §504. Crete-Monee (IL) School District 201-U, 25 IDELR 986 (OCR 1996).

E. Retaliation/Intimidation/Coercion
The §504 regulations prohibit schools from intimidating, coercing, threatening, or discriminating against
any person for the purpose of interfering with their rights, or because of their filing of a complaint or
participation in an investigation. See 34 C.F.R. §100.7(e). Thus, OCR can take action if it feels that parents
have been retaliated against in some fashion for exercising their rights under §504.

While allegations of retaliation are legion, actual violations are relatively rare. For example, a parent
alleged that a district employee (an instructional aide) made a series of harassing phone calls to her home
in the early morning hours on several occasions. The parent argues that the calls were made in retaliation
of the parent's complaints about the child's program and the aide's concern that she would be fired as a
result of the parent's charges. The phone company confirmed that the calls came from the employee's
apartment, but the employee denied making them (alleging instead that someone was using her phone
line without her permission to make the calls). Since OCR could not confirm who made the calls, no
retaliation is found. Mansfield (WA) School District #207, 23 IDELR 1199 (OCR 1995). But violations do
occur. A parent who had filed two due process hearings against another school was told that her
advocacy position would raise a conflict of interest that might preclude her employment within the
District. OCR found that this was a misstatement of law that constituted intimidation of a parent for
seeking to exercise her rights under §504. Ocean View (CA) Elem. School District, 23 IDELR 48 (OCR 1995).

F. Parents or Members of the Public with Disabilities
Many believe that the requirements of §504 apply only to students and employees, but in fact, the
provisions apply also to disabled parents of students or disabled members of the public who participate
in school programs, board meetings, or PTAs.

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Interpreters at school board meeting required for hearing impaired residents. A Pennsylvania school
district refused to provide sign language interpretation for regular board meetings as requested by a
hearing-impaired resident who had a child attending the schools. The resident brought her own
interpreter, and demanded that the board provide the service in the future. She also demanded
reimbursement of her costs for the interpreter. The district refused to pay the bill, and denied
responsibility for providing sign language interpreters. According to the board, it had no duty to provide
an interpreter for "services unrelated to the academic or disciplinary situation of the [resident's] child."
OCR finds that as school board meetings are open to the public, anyone can attend, participate and ask
questions. "Because these meetings had allowed the general public to participate through questions and
comments during the meeting, [the resident] should have been afforded an aid or service that would have
allowed her to understand what was being said at the meetings, to ask questions and to make comments,
just as other members of the public could do." Lake-Lehman (PA) School District, 20IDELR 546 (OCR 1993).
The interpreter was required to provide the disabled resident equal benefit from the meeting. In the same
vein, where hearing-impaired parents need a sign language interpreter to participate in a school
activity designed for parents, then the school must provide the interpreter at no cost to the parents.
Sherburne-Earlville (NY) School District, EHLR 353:245 (OCR 1989).

IV. BORDER ISSUES
A. IDEA eligible students who also have 504 disabilities
Educators sometimes ask what to do when a student who is IDEA-eligible also has a disability which
does not rise to the level of a special education disability. Does that mean that one disability is dealt with
by the ARD Committee and the other by 504? No. While IDEA-eligible students also technically qualify
as eligible under §504, special education and related services for these children are provided under the
IDEA only. Of course, IDEA-eligible students enjoy the anti-discrimination provisions of §504, but they
are not served educationally under §504 since a more specific and comprehensive law was created to
address their disabilities. To provide services under both 504 and IDEA would be to treat one portion of
the student's body/mind differently than another, with one receiving substantial rights while the other
receives much fewer rights. This result is chaotic and wrong. As long as a child is eligible under the
IDEA, a §504 Committee does not meet on the child.

B. Should IDEA or §504 serve students with AD(H)D?
In 1989, the Department of Education issued a memorandum on serving children with AD(H)D in the
schools. Its major conclusion was that schools could qualify AD(H)D kids under IDEA as "learning
disabled" (if they otherwise met the criteria), or as "other health impaired" (OHI). Since many AD(H)D
students do not qualify as "learning disabled" under the Texas standard deviation discrepancy model,
Texas schools in the past looked to the OHI category as a means of qualifying AD(H)D students for IDEA
services. The Department of Education's concern was that students with AD(H)D who did not qualify for
IDEA services were simply not being accommodated at all until a few years ago, when schools began to
realize that some students who do not qualify under IDEA in fact need assistance due to a
disability—under §504. Thus, the Department of Education was trying to help the schools find a way to
serve these children under the better-known IDEA process.

The real question for districts to ask is whether an AD(H)D student requires special education and
related services under IDEA. If the child's needs can be met as adequately as the needs of nondisabled
students by use of a set of accommodations in the regular class under §504, does the child really need to
be served under IDEA? The answer is no. See e.g., Christopher B. v. Bishop ISD, Docket No. 022-SE-996
(Hearing Officer Kevin O'Hanlon—December 6, 1996) (ADHD student making progress with §504
modifications does not need to be identified under IDEA). Schools must also remember that with the
benefits of IDEA funding also come the heavy responsibilities and duties under IDEA, with its extensive
parental involvement rights and procedural safeguards.


Interestingly, 504 may need to look to special education eligibility for some ADD/ADHD students
who can no longer be educated in the mainstream classroom. Since 504 is unfunded, there is no real
continuum of educational placements available to the 504 Committee. When a student, despite behavior
management and supplementary aids and services, can no longer be taught in the mainstream classroom
because of his behaviors, 504 may refer to special education so that, if IDEA-eligible, a more restrictive
(IDEA-funded) placement can be found.

In addition to the'interesting legal questions, note that some parents will prefer their AD(H)D children to
be served under IDEA due to the extensive parent involvement and rights it provides (including possible
TAAS exemption). Others, wary of the special education "label," may prefer §504, with its emphasis on
regular class placement and modifications. To be sure, IDEA will likely have to increasingly share with
§504 the responsibility for serving the AD(H)D population.

C. How does Dyslexia fit?
Unlike other disabilities, dyslexia was singled out by the Texas Legislature, which created a special
program and procedures for eligible students. See TEX. EDUC CODE §38.003; 19 TAC §74.28. In September
of 1998, TEA released the new "red book" on dyslexia (replacing the old green book). With a few
exceptions, including an unfortunate (and incorrect) reference to a §504 duty to evaluate students with a
record of a disability and students regarded as disabled (see discussion of physical and mental impairment,
supra), the new Dyslexia Handbook seems to merge the state dyslexia process with federal law fairly well.
Section 504 is triggered when students are tested individually for dyslexia, or when a placement is
contemplated in a Dyslexia Instructional Program. Handbook, pp. 9 & 12. So, before an identification or
assessment procedure "is used with an individual student, the school district must notify the student's
parent or guardian." 19 TAC §74.28(d). The Handbook interprets this administrative code requirement as
requiring parental consent prior to individual evaluation of the student. Handbook, p. 8. This is likely a
response to OCR's Letter to Durheim, supra.

The Handbook creates some confusion when it attempts to identify the committee which performs the
dyslexia evaluation and placement. Identification and placement into a Dyslexia Instructional Program is
made by the school's "committee of knowledgeable persons." Handbook, p. 9. The quoted language used
here tracks that of the 504 regulations used to identify the 504 Committee, although in the new handbook,
the phrase is also used to describe the school district's dyslexia committee. Handbook p. 24, Question 17.
The dyslexia team or committee, or any other group, can meet the definition of a "group of
knowledgeable persons," regardless of its title. As long as the 504 procedures are followed and the group
of persons has the required knowledge of the student, the meaning of the evaluation data and the
placement options, the 504 regulations are satisfied. Unfortunately, language on pages 24-25 of the
Handbook makes it difficult to determine whether the district dyslexia committee is expected to fulfill the
obligations of 504, or whether the dyslexia committee provides information to the 504 committee and
ensures that the 504 committee makes identification and placement decisions, [see Handbook, p. 24,
Question 16, Bullet 2 and Question 17].

Finally, note that 504 is not a prerequisite to IDEA eligibility for students with dyslexia. The Handbook
makes clear that "[a] student may be referred for special education evaluation at any time a disability is
suspected." Handbook, p. 26. Once referred to IDEA, the IDEA procedures will control rather than 504.

D. Parents demanding special education services through 504
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 §504 so that the
child is not in special education and is less subject to the stigma that sometimes attaches to the special
education label. 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

Vwse Other Laws: §504 & ADA © 1999. RICHARDS LINDSAY & MARTIN, L.L.P. All Rights Reserved. Page 14

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 §504 Hearing
(Errol B. v. Houston ISD, Hearing Officer Ann Vevier Lockwood, October 26,1995)(finding that funding
programs and allocating resources is the district's prerogative), and by a federal district court. Lyons v.
Smith, 20 IDELR 164,167 fn. 11 (D.C.D.C. 1993).

E. 504 students who seem to need special education services
Since 504 students have less severe disabilities than their special education counterparts, they will very
likely not demand the high level of modification or separate classes sometimes required for students in •
special education. For the child with ADD served under §504, for example, "placement" may include
such things as an assignment notebook, a seat close to the teacher, and shortened assignments. Resist the
urge to provide core special education services under §504. First, such action is likely in violation of the
funding provisions of IDEA part B, in that 504 students are not IDEA-eligible, and therefor cannot avail
themselves of services funded by IDEA. Second, logic demands that result. When the §504 Committee is
considering removing the child from the regular classroom and placing him in resource or special
education content mastery or a more restrictive setting, the Committee should seriously consider whether
this is a §504-only child. It seems incongruous that a child could need special education and related
services available through IDEA in order to benefit from education, but at the same time not be able to
qualify as an IDEA child. At least one court agrees. "The Court believes that the only students likely to
be entitled to special education under §504 are the same students also entitled to special education
under the IDEA.'Uyons v. Smith, 20 IDELR 164,167 fn. 11 (D.C.D.C. 1993).

F. Students Dismissed From IDEA
When students are dismissed from IDEA (upon a finding that they are no longer eligible) ARD
Committees sometimes mistakenly believe that the child will, in §504, continue to receive the same level
of services previously enjoyed under the IDEA. First, there is no automatic FAPE in 504 for a former
IDEA student. Remember that unless that student meets the eligibility requirements of prong one
(current physical or mental impairment) there is no 504 duty to provide FAPE. A former IDEA student
certainly has a record of a disability, but that only entitles the child to nondiscrimination protection. For a
speech-only student exited from IDEA, for example, there may no longer be any substantial limitation,
and thus no FAPE eligibility under 504.
A former IDEA student with a learning disability, on the other hand, who is exited because his/her
discrepancy is no longer over 15 points, may still have a large gap between 1Q and achievement, and still
may be very learning disabled (although not so severely disabled as to qualify under the IDEA.) That
student may qualify under prong one of §504. However, even if the student qualifies, various services the
student once enjoyed (resource classes, or content mastery, for example) may no longer be available
because of the lack of IDEA eligibility. Great care should be taken when describing to parents the types
of services available for a student moving from IDEA to 504 so as not to cause unrealistic expectations.
Finally, remember when exiting students late in their high school careers that 504 cannot give exemptions
to TAAS (the 504 Committee can only provide some approved modifications to the exam). A student who
has been exempt throughout his years in school and is suddenly subjected to TAAS will likely encounter
difficulties with it.

Those Other Laws: §504 & ADA © 1999 RICHARDS LINDSAY & MARTiN, L.L.P. All Rights Reserved. Page 15

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