Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools
If a parent believes his or her child has a disability, the parent may ask, for example, a principal, counselor, social worker, or teacher to arrange for an evaluation of the student. Through the Section 504-compliant evaluation process, a knowledgeable group of people will determine if the student has a disability and, if so, what services the student needs.60
Although a parent does not have an absolute right to a Section 504 evaluation upon request, a school must evaluate a student if the school has reason to believe the student is in need of special education or related services because of a disability.61
School districts violate Section 504 when they deny or delay conducting an evaluation of a student when it would have been reasonable for a staff member to have suspected that a student has a disability and needs special education or related services because of that disability.
If the school does not agree to evaluate the student, the school must inform the parent of his or her right to challenge the school’s decision. If a parent disagrees with any decisions regarding the identification, evaluation, or educational placement of his or her child, the parent may seek an impartial hearing (often called a due process hearing) that provides the parent with an opportunity to participate and permits representation by an attorney and a review procedure.62
You can go to page 35 for a discussion of procedural safeguards, including due process.
A parent may have a specialist or other educational professional, who is independent of the school, test his or her child.63 School districts are required to consider information from a variety of sources in interpreting evaluation data and in making placement decisions, and the independent evaluation is another source that makes up the universe of information about the student.64
In determining a student’s needs, sources to consider include aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.65
Other information that the school district must also consider is a medical diagnosis or the results of a medical assessment obtained by the school district. If a district believes a medical assessment is necessary and the parent volunteers to pay for a private assessment, the district must make it clear that the parent has a choice and can choose to accept a school-furnished assessment at no cost to the parent.66
OCR interprets Section 504 to require informed parental consent for the initial evaluation. If a parent refuses consent for an initial evaluation and a recipient school district suspects a student has a disability, OCR interprets Section 504 to allow school districts to use due process hearing procedures to seek to override the parents' denial of consent.67 OCR also urges schools to allow for parental participation when considering any change in the student’s Section 504 provision of FAPE, including location of services.68
Section 504 is silent on the form of parental consent required. OCR has accepted written consent as compliance.69 Making a request in writing can help avoid misunderstandings between parents and school districts, and could help to prove or disprove a related allegation in the event a parent decides to file a formal civil rights complaint against a school district in the future.
Often school districts must address health issues of students during school hours or during extracurricular activities conducted after school hours. For example, students with food allergies may need an injection of epinephrine in an emergency, or students with diabetes may need help with carbohydrate counting and administering insulin injections. These measures (for example, self-management techniques or medication) are often referred to as mitigating measures. The effect of the epinephrine, insulin, or other mitigating measures, cannot be considered when the school district assesses whether a student has a disability.70
You can go to page 6 for more discussion about mitigating measures.
In other words, when a school district conducts an evaluation for disability, it is important to consider that mitigating measures can treat the impairment, thereby obscuring the substantial limitations of the impairment. Therefore, it is useful to have evidence showing that an impairment would be substantially limiting in the absence of the ameliorative (beneficial) effects of mitigating measures. For example, such evidence could include information about the limitations a person experienced prior to taking medication, or evidence concerning the expected course of a particular disorder absent mitigating measures (such as a student with a peanut allergy could stop breathing after contact with peanuts.) This is why it is also beneficial to involve parents in the evaluation process, to access such information that parents may have.
A student is not required to stop taking needed medication or using another mitigating measure in order to receive an evaluation.
Therefore, when determining whether a student with a health concern has a disability, the school district must evaluate whether the health concern (for example, a tree nut allergy or diabetes) would be substantially limiting without considering the beneficial effects (amelioration) of medication or other measures.71 For many children with a peanut allergy, for example, the allergy, when active, is likely to substantially limit the major life activities of breathing and respiratory function, and therefore, the child would have a disability. If, because of an allergy or other health concern the student has a disability and may reasonably be believed to need special education or related aids or services, the student has a right to an evaluation under Section 504.72
60 The school’s evaluation process may be the same under Section 504 and the IDEA. An evaluation could reveal that the student is eligible for services under the IDEA and Section 504, Section 504 only, or that the student is not a student with a disability under Section 504, or is a student with a disability under Section 504 who does not need special education or related aids and services.
61 34 C.F.R. § 104.35(a). If a school wants to evaluate a student for the first time (initial or preplacement evaluation) and the parent refuses, the school cannot proceed with the evaluation. Instead, the school may, but is not required to, seek a decision from a hearing officer to permit the evaluation. See OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 27) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
62 34 C.F.R. § 104.36.
63 Note that Section 504 does not specifically address whether a school district must reimburse a parent if the parent has the student evaluated by professionals who are not affiliated with the school district.
64 34 C.F.R. § 104.35(c)(1).
65 Id.
66 34 C.F.R. §§ 104.33, 104.35 and 34 C.F.R. pt. 104, App. A (discussing Subpart D, ¶ 23) ("Recipients must also pay for psychological services and those medical services necessary for diagnostic and evaluative purposes."). See also OCR, Dear Colleague Letter and Resource Guide on Students with ADHD (July 26, 2016), www.ed.gov/ocr/letters/colleague-201607-504-adhd.pdf; and U.S. Department of Education, Office of Special Education and Rehabilitative Services, Office of Special Education Programs, Identifying and Treating Attention Deficit Hyperactivity Disorder: A Resource for School and Home, at 9 (last modified Feb. 13, 2009), www.ed.gov/rschstat/research/pubs/adhd/adhd-identifying.html. If a school district does not have the appropriate personnel on staff to conduct a medical assessment for diagnostic and evaluative purposes, the district must make arrangements for the medical assessment at no cost to the parent.
67 See OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 27) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
68 34 C.F.R. § 104.35(a) and 34 C.F.R. pt. 104, App. A (discussion of Subpart D) (enable parents or guardians to influence decisions regarding the evaluation and placement of their children); see also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 41) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
69 IDEA, as well as many state laws, also require written consent prior to initiating an evaluation. See OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 42) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
70 42 U.S.C. § 12102(4)(E)(i).
71 Id.
72 34 C.F.R. §104.35(a); For more information about health plans and Section 504, see OCR, Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools (FAQ 12 & 13) (Jan. 19, 2012), www.ed.gov/ocr/docs/dcl-504faq-201109.pdf.
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