Season 2: Episode 8: Section 504 Basic Overview

You’ve probably heard of Section 504, but sometimes laws can be confusing and the details may be a bit fuzzy. What’s the difference between eligibility under Section 504 and IDEA? Is the “free appropriate public education” standard different for kids who have a Section 504 disability versus those who qualify under the special education statute? What’s the difference between accommodations and modifications anyway? Join Lisa and Miriam for a fantastic overview of Section 504 with Attorney Kathy Perrico who often advises districts on Section 504 laws and regulations.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield. We practice school law. Every few weeks, we get together and we talk about recent legal developments in the field of education that are relevant to school boards, administrators, anybody who works with the kids. In our last episode, we talked about medical marijuana and we touched a little bit upon Section 504 which, as you know, is a federal law that protects students with disabilities and it also really affects the day-to-day operations of school districts. We thought that we would delve a little bit more into that today because we’ve actually touched on 504 a few times during our previous podcasts. We talked a little bit about Section 504 in discipline. Even in our very first episode, Lisa, we talked about Fry versus Napoleon School District. That was a Supreme Court decision that also related to 504. I think it’s a good idea if we just broaden this topic and talk a little bit about what the law is, whom it protects, and what school districts’ obligations are. We have a very special guest with us today. Kathy Perrico is a partner at Walter  Haverfield. She often advises school districts on Section 504 issues. Welcome back, Kathy.

Kathy Perrico: Thank you. It’s good to be here.

Lisa: Good morning, Kathy.

Kathy: Good morning.

Lisa:  Most of our audience has probably heard about Section 504 as Miriam pointed out. We’ve talked about it in numerous episodes, touching on it, but not really delving into what it is and all the details. Can you just give us a basic overview of the law?

Kathy: Sure. First, to start, Section 504 is what we refer to in shorthand as the Section 504 of the Rehabilitation Act of 1973. What that does is it prohibits entities that receive federal funding, such as public school districts from discriminating against people based on disability. If a disabled student requires accommodations to have an equal opportunity to benefit from a district’s programming, then the team has to complete an accommodation plan so that the student with a disability has an equal opportunity to participate in and obtain a benefit from the board’s programs including educational programs.

Miriam: That sounds a little bit like special education law and I know that there can be confusion. I know that people are sometimes confused.

Lisa: There’s a lot of confusion, I think.

Miriam: Even attorneys, I would say, are sometimes confused about Section 504 and IDEA and which law covers which kids. Can you clarify that? Can you maybe talk a little bit about the difference between Section 504 and IDEA?

Kathy: I think one of the easiest ways to describe it is if you think about a series of concentric circles, the biggest outside circle would be all students. The circle within that would be students protected by Section 504 because they are students with disabilities who have a physical or mental impairment that substantially limits one or more major life activities or the operation of one or more major bodily functions.

Miriam: I’m sorry to interrupt. Section 504 is for kids who have a disability that substantially impacts one of their major life activities.

Kathy: Substantially limits.

Miriam: Substantially limits. Thank you. It substantially limits one of their life activities and I imagine that this is very broad and sweeping so it probably includes most conditions that we all typically think of as a disability.

Kathy: It is. It’s very broad from a definitional standpoint, yes.

Miriam: I’m sorry I interrupted you. Go ahead. [laughs]

Kathy: It’s okay. The innermost circle would be students covered by IDEA and that’s the Individuals with Disabilities Education Improvement Act, reauthorized in 2004. The reason that it’s it own separate circle within Section 504 is because of the different definition of disability under each law. Within the IDEA circle, in order to be eligible, you have to be a child with a disability who by reason of that disability requires provision of specially designed instruction or the provision of related services.

Lisa: In application of distinction, really, between these two laws is really what the child’s going to get and what that looks like with their programming.

Kathy: Correct, and what districts have to provide in terms of FAPE, or Free Appropriate Public Education, under each law is different as well. One of the easy ways to think about it is Section 504 is more of a leveling of the playing field definition of FAPE, providing equal opportunity, equal access to benefit. Under IDEA, FAPE is heightened in that you have to allow students to obtain meaningful educational benefit in light of the child’s circumstances.

Miriam: Just again to clarify, under the IDEA a child can fall into 1 of 13 categories. Is that right?

Kathy: Correct.

Miriam: That’s not enough. In order to be considered eligible for special education under the IDEA, a child also has to need specially designed instruction or related services.

Kathy: Correct.

Miriam: Under 504 that’s not the case. The child does not need to have specially designed instruction to qualify as somebody eligible for those laws’ protections.

Kathy: Absolutely.

Lisa: In discussing some of this, you’re hearing some terms that we use in both areas, 504 and special education like accommodations, modifications. Even earlier we talked about, and we’ll dive into later more, an accommodation plan under Section 504, but a lot of times we see clients in districts get confused about these terms in the application of them. Let’s dive into that a little bit more.

Miriam: I feel like sometimes those terms are used interchangeably and they’re really not.

Kathy: They aren’t. Modification is a little bit more intensive than a simple accommodation. Accommodation would be altering the environment in a way to level the playing field for the student. A modification would actually be changing something a little more substantially, such as, modifying the curriculum, modifying grading requirements, assignments, not just the time in which they would be turned in which would be an accommodation, but perhaps, changing the content or expectations for the student. That’s fairly rare under Section 504. Under 504, what we typically see is the provision of accommodations, but you can provide both. You can also, and this is where a lot of districts don’t necessarily understand that services can be provided too, such as, occupational therapy or physical therapy or even aide support, but services can be provided under both laws.

Miriam: Let me just try to clarify with an example. Let’s say we’re talking about spelling words, maybe. Let’s use spelling words. If the student has special education needs under the IDEA and that means they require specially designed instruction, they might need an entirely different way, for example, of being taught these spelling words. Whereas a modification, if the child only is eligible for Section 504, a modification would be maybe only do half of the spelling words, only study half of the spelling words. Is that right? Then an accommodation is you can sit next to the teacher while she’s telling you the spelling words. Am I saying it right?

Kathy: Those are very good examples, yes.

Miriam: [laughs] Feel free to jump in with some better examples if you–

Lisa: One thing I think that sometimes is confusing for districts is the overlap of– You may see those things in an IEP, but the key difference with a 504 plan is that absence of the need of for specially designed instruction.

Miriam: That’s a good point.

Lisa: You may have an accommodation in an accommodation plan for Section 504 of, say, a shortened spelling list because maybe the student has attention difficulties or something that requires that, but you may also see that in an IEP. The distinction, again, is just needing specially designed instruction to learn a certain skill and access the curriculum.

Miriam: Right. An IEP can also have accommodations and modifications in addition to specially designed instruction, but a 504 plan, like we’ll talk about in future episodes, will not have specially designed instruction. It will just have either accommodations, modifications or, Kathy, like you were saying, services.

Lisa: Maybe let’s give some examples to help clarify of what are some typical disabilities that we see eligible for 504, but not as necessarily needing special education.

Kathy: Sure. Diabetes, asthma, attention deficit disorder, some medical conditions that can impact one or more major life activities or the operation of one or more major bodily systems that require the district to, again, level that playing field and provide that student with a little bit extra help so that they can equally benefit from their education.

Miriam: Does this also include situations where kids leave the classroom to take care of their medical condition and then they’re missing that instruction time? Is that something that Section 504 would also cover?

Kathy: It can, yes. One example that I’ve had in the past is a student with a seizure disorder who would occasionally have seizure activity and require significant downtime in the nurse’s clinic following that seizure activity and would therefore miss one or more instructional periods. That was a situation where services were provided on a 504 plan because we needed to do some remedial instruction for that student based upon the time he missed while recovering from the seizure activity.

Miriam: Right. I think that’s a great example, but in that case, the child did not need any kind of specially designed instruction, his instruction could be the same as everybody else’s, just provided at a different time.

Kathy: Correct.

Miriam: I think that’s a great example.

Lisa: Also with these laws between section 504 and IDEA, there are a lot of similar features including a lot of the procedures, both have requirement about locating and evaluating students with disabilities, but sometimes they look a little bit different. Can we talk about?

Miriam: Let’s tease that out.

Kathy: Correct and I’m not so sure that here is anywhere it looks all that different quite honestly. The legal term of art that we tend to use for what we’re talking about now is called Child Find. Under both laws, districts have the obligation to locate and evaluate students with disabilities, that includes students who are both receiving a public education and students who don’t. It also includes notification requirements so that parents, community members, and eligible students of an appropriate age are aware of district obligations to identify and/or serve the students.

Miriam: That’s pretty similar, I think, to special education law, districts have an obligation to identify and locate kids with a disability.

Lisa: Absolutely. I think one of the things I see slightly different sometimes is with 504 that district might not always know that there’s a disability unless it’s brought to their attention too. We do see sometimes with 504 parents saying, “Hey, my child has this disability”, and having to bring that to the attention of the district. Whereas sometimes with the IDEA Child Find, it’s a more evident in the classroom as to what those needs are.

Miriam: I think this is a really important topic, what kind of situations trigger a district’s Section 504 Child Find obligation? When is the team obligated to say, “Okay, we need to really evaluate this child”? Sometimes I hear districts say things like, “Okay, well, this kid came in with an inhaler for her asthma, so should we evaluate? Should we go right to 504?” Kathy, how do you see that?

Kathy: Well, I think one of the most important things to remember is that there is no magic language. A parent doesn’t have to say, “I think my student has a disability”, or “I think I might need a 504 plan for my son”, or I would like you to conduct an initial evaluation”. There’s not much needed to trigger the potential suspicion of a disability. If you find out about a condition that the student has, what you would want to do is convene a team and determine if all relevant team members including the parent had reason to believe under Section 504 that there was a physical or mental impairment that was suspected of causing a substantial limitation on a major life activity or the apparition of a major bottleneck system.

Miriam: Now that’s not the decision yet, right? This is a suspicion meeting where we talk about if we’re going to evaluate.

Kathy: Correct.

Miriam: Okay.

Kathy: What your example, I think was, if I remember correctly, in terms of having an inhaler, that might not be, standing alone, enough to trigger a suspicion of a disability under Section 504, if, for example, the student is simply noted as a student having an inhaler in the clinic, and that student might not necessarily even access that during the school year. As opposed to incoming information that the student has an inhaler and has to utilize it frequently for gym class, for recess, during cold weather, then you might have flipped into that category of suspecting that the student has a substantial limitation in a major life activity of breathing.

Miriam: I do you see that some school districts, I think, fall into a trap of not even thinking about the major life activity of breathing. I’ve seen teams, I’m sure you’ve also were, they just focus on the learning, whether the child is learning, and I guess that makes sense because we’re schools, that’s what the teams are. The teams naturally are thinking about how this child is doing academically, but we do always advice school districts not to just limit their focus to learning, it’s also as part of this discussion we look at all major life activities.

Kathy: Absolutely. In fact, limiting the analysis to just learning would be fairly dangerous under 504 law. What you want to look at is the different major life activities issue: breathing, sleeping, walking, standing, concentrating without regard to how the student is performing educationally. It’s important to keep in mind that while you’re going to be accommodating the educational environment, or the learning environment, learning is not the beginning and the end of the analysis at all.

Miriam: Okay.

Lisa: In that discussion, I think that leaves us to you have this child the team suspects might be eligible under 504, that’s just take that through the process, and what it looks like to determine if they ultimately are going to end up needing an accommodation plan.

Kathy: Sure. If a district receives information that a student might have a 504 qualifying condition, again, you first determine whether or not you suspect a disability, so the information that you have should be reviewed promptly by an appropriate staff member or team members, because again, then you’re on notice of your Child Find obligations. Then if you do suspect a disability, you’re going to want to involve the parent in discussing the scope of the suspicion of disability and what type of evaluation you want to undertake. Of course, in order to move forward with an initial evaluation under either 504 or IDEA, that requires parental consent.

Miriam: The parent has to be on board with this.

Kathy: Correct.

Miriam: What does an evaluation look like? I’ve seen really extensive 504 evaluations that almost look like the school district is doing all different kinds of assessments, almost like they would for a special education evaluation, and I’ve also seen Section 504 assessments that are just like, “Here’s a checklist”. [laughs]

Kathy: Or here’s the diagnosis.

Miriam: Yes.

Kathy: Well, before we get any further on that, one of the things that I do want to say is if districts are presented with more medical-based conditions, if a parent notifies them, “My child has ADHD”, for example. Or, “I think my child might have ADHD”. Or maybe you’ve got a teacher saying, “Wow, Suzie seems really inattentive and distracted in the classroom”. One of the things you can’t do is ever look at a parent and say, “We suspect a disability, but we’re going to need you to go to your doctor and get a medical diagnosis before we can do anything further”. That is absolutely not allowed.

Miriam: We do see that sometimes. We absolutely see some districts who will say things like, “You know what, we can’t even talk about Section 504 unless we see something from your doctor saying that your child is depressed or whatever”. I understand where districts are coming from because you do have sometimes parents who will just come in and say, “Well, I think my kid is depressed”, or whatever. School districts sometimes teams are questioning to what extent do I accept this at face value To what extent do I just say, “Okay, well, if you think that your child is bipolar, I’ll just write that down, your child–” To what extent do we require some proof of whatever the parent is saying?

Lisa: Well, I think you gave some good examples of, well, let’s not necessarily go as far as the bipolar one because that’s a little more complicated, but say depression as parents complaining that, “My student is depressed”. That’s absolutely an area that the team can suspect and evaluate for, they’re not necessarily, well, they’re actually not going to diagnose it, but they certainly– Like a school psychologist can absolutely give assessments to determine if there are symptoms present, how it’s impacting them in the classroom. If there’s enough evidence through that evaluation, that those types of symptoms are impacting and limiting the child in their educational performance, then absolutely they are obligated to look at eligibility and look at whether an accommodation plan is necessary. This is probably going to be when you’re having a conversation with parents saying, “Yes, we do have evidence of this, we’re not making a diagnosis, that’s for a medical professional, but we still are going to address this area of need and provide what the child needs”.

Kathy: Just to jump and clarify because you did talk about educational performance, and we do want to stress under Section 504, you don’t want to focus on exclusively on their performance and the major life activity of learning or thinking, but I think that wraps us back in to the original conversation, which is what is the evaluation look like. Both here and potentially in ADHD or some other situations, or if you think there might be a need for a specially designed instruction, again, the scope of suspicion drives the scope of evaluation. You might actually do a full multi-functional evaluation under IDEA to determine whether or not the student needs specially designed instruction.

You might do a lesser evaluation in the, for example, of a student coming in with a suspected attention issue or an actual outside diagnosis of ADHD, but to really tease out and understand how limiting that condition might be, you might, for example, do classroom observations as part of your evaluation. You might run rating scales that are designed to tease out how the student is with concentration and attention issues. Then the team would come back together and analyze these results to figure out if the child was disabled under either IDEA or Section 504.

One of the things to keep in mind if you are doing a full evaluation under IDEA, when you look at the series of questions at the end of that evaluation process, you could very well check that the child has a disability, but then doesn’t need the provision of specially designed instruction. That is almost always going to be sure sign that you’re going to need to analyze eligibility under Section 504.

Miriam: I think that’s an important point. I think that many school districts, if a child if they do an IDEA evaluation, if they do an ETR or an MFE, whatever it’s called in your state, and they find the child does not need specially designed instruction, some teams will be just like, “Okay, well, that’s the end of it. I’m sorry you don’t qualify for special education. Have a nice day”. I think what you’re saying, Kathy, is that right away as soon as you make that decision that the child does have some kind of condition, but does not need specially-design instruction, that team’s next steps should be, “Let’s take a look at whether they’re covered by Section 504 and maybe they’ll need accommodations plan, accommodations or modifications”. That’s really what you’re saying.

Lisa: Well and keep in mind too that evaluation you just did as far as for special education, may very well provide you enough of the information to consider and find eligibility under 504. It’s not necessarily that you’re going to have to open and now do a bunch of new assessment, you very much just may use the results from that evaluation.

Miriam: That’s true.

Lisa: The other thing I just wanted to point out really quick too is just the reverse of that, sometimes we see is make sure you’re not being real narrow and focused and thinking especially with things like depression, ADHD, that also could qualify under special education. If you do a 504 evaluation that you’re only looking at, “Do they need accommodations?” Because through your assessment, you might find, “Well, now, I have a red flag for maybe they need specially designed instruction”, and you need to just be aware of your obligations to go that route as well. Input from your team, from teachers is just going to be so vital about how this child is performing and their needs and information from the parents and the student, especially the older the student is, the more they can tell you the broader scope of how things are impacting them.

Kathy: When we are talking about just a pure Section 504 evaluation, the three things that the team needs to address, and when I say the team, again, it has to be the parent, after that it’s fairly discretional, but it does require that team members have knowledge about the child at issue.

Lisa: Absolutely.

Kathy: Even though it’s not written, I would say the child’s primary classroom teacher absolutely should be included in that team. But the evaluation team is there to address three primary questions. One, is the child disabled within the meaning of Section 504? Two, does the child need accommodations? Three, what is that child’s educational placement? Which, again, there are exceptions, of course. Primarily, a placement of a child who’s eligible under Section 504 will be the regular education environment.

Lisa:  One of the questions that you just went through was, is the child disabled and then does the child need accommodations? I just wanted to dive into that question a little bit more to point out how you can have a child who is disabled but maybe does not require an accommodation plan.

Kathy:  The three outcomes at the conclusion of a 504 evaluation are that the student is not eligible because there’s no substantial limitation on a major life activity, or the student is eligible under Section 504 and requires a plan because they need accommodations, modifications or services or the student. This is the one that tends to throw districts for a loop, that a student is eligible because they satisfy the definition of an individual with a disability under Section 504, but that they don’t need an accommodation plan because there is no need for accommodations in light of mitigating measures.

Lisa: Let’s talk about an example of that.

Kathy: When you are making the determination of whether a student is substantially limited in a major life activity due to a physical or mental condition, you’re not allowed to consider the impact of any mitigating measures, unless you’re talking about eyeglasses. The easiest–

Lisa: Let’s just define for our listeners mitigating measures. Basically, a student has a disability and takes medication for it, or a student has….

Miriam: A hearing aid.

Kathy:  Or a walker.

Lisa: Yes. That’s what we mean.

Kathy: You need to analyze whether there’s a substantial limitation without regard to those assistive devices, for example. To go to the walker example, you can’t consider the fact that the student can ambulate effectively with the walker. You have to analyze what that student’s ability to walk is without the walker.

Lisa: For determining just if they’re disabled and eligible.

Kathy: Eligible, yes. When you are allowed to consider the walker and actually I think I’d actually like to veer back and change examples here because it’s just an easier example for people to grasp. If you take a student who has ADD or ADHD, you’re supposed to for the eligibility decision look at them without regard to any medication that they might be taking, in determining whether or not they fit the definition. But you are allowed to consider the impact of that medication when you are determining whether or not they need accommodations through a Section 504 plan.

Lisa: This is really super logical. Why would you put accommodation plan in place when maybe a medication makes all the difference and there is no longer a need?

Miriam:  This is how that analysis would look. You’d say, “Okay, Johnny does have difficulty concentrating”. A major life activity is limited here for Johnny. He is eligible for Section 504 protections, but he’s taking this Adderall or Focalin or whatever and he is doing so well. He’s getting great grades, he’s not having any difficulties socially, everything is fine. He does not need a Section 504 plan. Is that what that analysis actually looks like?

Kathy: Correct.

Miriam: Okay, good.

Kathy: Here, at the flip side of the earlier pitfall that we mentioned is what you check and what called to mind was what you commented on, the major life activity impacted is concentrating. The flip side pitfall is that districts say, “Okay, well, we’re going to be accommodating the learning environment so they might check learning, or they might check thinking”. The distinction to remember is what activity is substantially limited, which the law wasn’t nice enough to define for us. At a minimum, you have to think of it as a 51, 49 analysis, more unable than able with the intention of still keeping the protections very broad for covered individuals. But concentrating is the life activity at issue, it undoubtedly affects learning, affects thinking but you don’t want to, without solid data behind you, say that the student is substantially limited in their ability to learn or think just because you are accommodating or providing accommodations within the learning or educational environment.

Lisa: The learning box checked off for me is always a nice red flag of maybe you needed to do an IDEA evaluation.

Kathy: Correct.

Lisa: Because if they’re really limited in learning, they probably do need specially designed instruction. Many times, teams are checking that off meaning, well, they needed more time to complete their work accommodating the, like you said, the learning environment but it’s not learning that’s the major life activity.

Miriam: Do both of you think that, which box the district checks is really critical here in terms of just getting it right? Or is that just like a vehicle for the child to get the plan?

Kathy:  Well, if the plan or the evaluation would ever be challenged, finding eligibility and going through the right process is going to be more important to the implementing agencies than which box is checked. Like Lisa was saying, if you’ve checked learning or thinking or even speaking, you have to wonder if the evaluation was thorough enough or do we now– Because, again, if you think about the concentric circles, have we gotten the student into the second circle and failed to analyze whether they need to be in that innermost circle. Because, again, if you are more unable than able to learn, think or speak, you’d have to at least question and further evaluate whether there is a need for specially designed instruction through a speech pathologist, for example, or an intervention specialist.

Miriam: That makes sense. Because if you’re saying as a teen whose child is having trouble learning, I think the next logical question is, do they need specially designed instruction?

Kathy:  What you’d want to look at in that situation if you’ve checked learning and you really meant it, what did your 504 evaluation look like? Do you need more? Did you only run attentional rating scales, for example, as opposed to doing a full cognitive assessment and academic assessment?

Lisa: I think a lot of times we find that that’s happening more because the team is just not understanding Section 504 and the eligibility process more than that they really needed to do an IDEA evaluation. Just before we wrap up this episode, are there any other common mistakes you’ve run into, Kathy, that you want to highlight for our listeners?

Miriam:  In terms of evaluations in 504s.

Kathy: I think we’ve covered most of them, peppered throughout our conversation today.

Lisa: Yes. Absolutely.


Miriam: Thanks for joining us today. Thanks for joining us for this discussion. I think next time, we will unpack, what is a Section 504 plan and how a Section 504 plan differs from health plans or emergency action plans. Thank you so much for joining us, everybody. Please do not forget to leave us feedback, please send us e-mails. We love to hear from you. Rate us on iTunes, Stitcher, or wherever you get your podcasts. Have a great day!

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.