Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools
Disputes and Disagreements Regarding FAPE and non-FAPE Matters
Conflicts between parents and school personnel about Section 504 issues may be resolved through due process or through the school district’s established grievance procedures.
School districts are required to establish and implement a system of procedural safeguards for parents to appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services.132 This obligation may be more commonly known as due process.
Examples of the types of complaints that are appropriately resolved through due process include: whether a student has a disability and is eligible for special education and or related services; whether a student with a disability requires further evaluation in order to devise an appropriate plan of services; or whether the scope of the evaluation or the current services is sufficient to meet the student’s individual educational needs.
On the other hand, parents and others (for example, advocacy organizations) can attempt to resolve a range of other types of complaints, for example, complaints regarding disability-based harassment, different treatment, or a lack of accessible facilities or programs, through a district’s grievance procedure.133
Note, a school district cannot satisfy the requirement to have due process procedures by relying on its grievance procedure, nor can a district require a parent to pursue a FAPE-related complaint through the grievance procedure before a hearing under the system of procedural safeguards will be granted. Districts must ensure that they have due process procedures that are available to parents, as required.134
Procedural Safeguards.
Under Section 504, school districts are required to develop and implement a system of procedural safeguards to address FAPE concerns specifically, such as the identification, evaluation, and educational placement of students with disabilities.135
Procedural safeguards include notice; an opportunity for records review by parents or guardians; an impartial due process hearing, with an opportunity for participation by the student’s parents or guardian and representation by counsel; and a review procedure.
School districts must provide notice to parents explaining any evaluation and placement decisions affecting their children, and explain the parents’ right to review relevant records and contest any decision regarding evaluation and placement through an impartial hearing.136
Examples of relevant records could include: evaluation reports, report cards, a Section 504 plan, discipline records, and health records. Schools can provide parents with access to relevant records by, for example, providing copies of the records or allowing parents to review the records at the school and make copies.137
135 34 C.F.R. § 104.36. One means of meeting the procedural safeguards requirements of Section 504 is compliance with IDEA procedural safeguards. If a district chooses to use an IDEA hearing procedure, the procedure must nevertheless adhere to the standards and requirements set forth in the Section 504 regulations concerning identification, evaluation, and placement.
136 See OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 45) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
137 Another law called the Family Educational Rights and Privacy Act (FERPA) addresses privacy rights regarding education records, including the right of parents to inspect and review their child’s education records. When a student turns 18 or enters a postsecondary institution at any age, the rights under FERPA transfer to the student. See the Department’s website for more information about FERPA, www.ed.gov/policy/gen/guid/fpco/index.html.
Scenario 10 – Procedural Safeguards
Ms. Lee told staff at her son’s school that she believes her son has a disability because he cannot seem to sit still and concentrate on his assignments. Although Ms. Lee has made multiple requests, the school has refused to evaluate him because the teachers do not believe the student has a disability. Ms. Lee does not receive any communication from the school about why they will not evaluate her son. Is the school’s approach permissible?
No, a school cannot simply ignore a parent’s request for his or her child to be evaluated, even if the school does not believe that the student has a disability. A school district is required to establish, implement, and inform parents about a system of procedural safeguards that are designed to help resolve FAPE-related disagreements regarding identification, evaluation, or educational placement of a student. As part of this system, a school must notify parents of any evaluation or placement actions and inform parents of their right to: (i) examine records or documents that the school relied on in making its decision about the student; (ii) request an impartial hearing that provides the parent with an opportunity to participate and permits representation by an attorney; and (iii) have an opportunity for review of the decision made at the hearing.
Grievance Procedures.
School districts are required to establish grievance procedures for resolving complaints related to those cases where the complainants allege that employees, other students, or third parties engaged in discriminatory behavior.138 The grievance procedures must ensure that complaints are resolved in a prompt and equitable manner. In evaluating whether a school district’s grievance procedures are prompt and equitable, OCR will examine, for example, the extent to which notice of the procedures has been provided to students, parents, and employees of the school; whether the procedures afford an opportunity for an adequate, reliable, and impartial investigation; whether reasonably prompt timeframes have been established for the various stages of the complaint process; whether notice of the outcomes of the complaint has been provided to the parties; and whether there is an assurance that any violations will be addressed, and steps will be taken to prevent a recurrence.139
138 34 C.F.R. § 104.7(b) (applicable to school districts that employ 15 or more employees; Section 504 does not require grievance procedures for complaints from applicants for employment or from applicants for admission to postsecondary educational institutions).
139 Id. See OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, at 19-21 (Jan. 2001), www.ed.gov/ocr/docs/shguide.pdf, for an explanation of prompt and equitable in the Title IX context.
Section 504 Coordinators.
School districts with 15 or more employees must designate an employee (sometimes referred to as a Section 504 Coordinator) to coordinate the district’s efforts to comply with Section 504.140 In addition to coordinating and monitoring compliance with Section 504 within a school district Section 504 Coordinators will often distribute Section 504-related forms, documents, and information to parents; provide staff with information about Section 504 policies, practices, and procedures to help ensure that they fulfill their responsibilities in a timely and appropriate manner; respond to parent complaints; and complete other Section 504-related tasks within schools as necessary.
140 34 C.F.R. § 104.7(a).
Notice of Non-Discrimination.
School districts must provide notice identifying the district’s Section 504 coordinator and notifying participants, beneficiaries, applicants, and employees, that it does not discriminate on the basis of disability in admission or access to, or treatment or employment in its program or activity.141 There are various methods a district may use to provide notice, including websites, handbooks, or postings.142
141 34 C.F.R. § 104.8(a).
142 Id.
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