Section 504 of the 1973
Rehabilitation Act contains a much broader definition of a student with disabilities
than does the Individuals with Disabilities Education Act (“IDEA”), and thus protects
students with disabilities who may not qualify for an IEP by guaranteeing them access
to necessary accommodations during both instruction and assessments. Students with a medical condition such as
allergies, asthma, and attention difficulties may receive accommodations through
the development of a 504 Accommodation Plan (a “504 Plan”). The Americans with Disabilities Amendments
Act (ADAAA) of 2008 increased the number of individuals who are eligible for
protections and services under both the ADA and Section 504 of the
Rehabilitation Act of 1973.[1] An impairment in and of
itself does not mean that a student has a disability. There must be a substantial limitation on one
or more major life activities, which results from the impairment, to be
considered as a disability under Section 504 and entitling a student to FAPE.
In
order to be afforded the protections of Section 504, a student must meet the
definition of a person with a “disability.”
A student has a disability if he/she:
1.
Has
a physical or mental impairment that substantially limits one or more major
life activities; or
2.
Has
a record of such impairment; or
3.
Is
regarded as having such an impairment; and
4.
The
impairment substantially limits a major life activity.
A school must make an individualized
determination as to whether a student has a physical or mental impairment that substantially limits a major life
activity. In light of the ADAAA, the
standard used to determine whether a physical or mental impairment
substantially limits one or more major life activities is: whether or not “the
individual's important life activities are restricted as to the conditions,
manner, or duration under which they can be performed in comparison to most
people.” The impairment must create a
significant barrier to the student’s ability to access the same educational
opportunities afforded to students without disabilities. It is important to
remember that “substantial” doesn’t really mean “substantial” since the ADAAA was
passed.
Follow these steps:
1. Convene
a 504 eligibility team meeting. Assemble a properly comprised 504 team. Such
a team includes individuals who are familiar with and knowledgeable about the
student, the evaluation data that the team will review and discuss, and the
placement options if the student eligible.
2. Conduct
an appropriate evaluation. Always draw upon information from a variety of
sources. A variety of sources could
include teacher observations, aptitude and achievement tests, adaptive behavior
assessments, and the student's physical/health/medical condition. Schools must not rely on only one source of
information, such as a medical doctor script saying the child needs a 504, or a
parent saying their child needs certain accommodations.
3. Apply
the Section 504 eligibility criteria. Eligibility under Section 504 is based on the
evaluation where the student is determined to have a "physical or mental
impairment" that "substantially limits one or more major life
activities." 28 C.F.R. § 35.108(a)(1)(i).
To determine substantial limitation, compare the student's ability to perform a
major life activity to the average peer.
28 C.F.R. § 35.108(d)(1)(v).
Increasingly, parents may be requesting 504 Plans, or
more accommodations on existing 504 Plans, so that their children can have
accommodations for SAT testing or similar testing. Upon receipt of these requests, schools
should conduct an appropriate evaluation and apply the appropriate eligibility
criteria to screen out students who are truly not eligible.
[1] 42 USC 12102 (4)(A)
states, "The definition of disability in this Act shall be construed in
favor of broad coverage of individuals under this Act, to the maximum extent
permitted by the terms of this Act." (Emphasis Added)
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