Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools

Student Evaluations and Placement Under Section 504

Under Section 504, school districts must conduct an evaluation in a timely manner of any student who needs or is believed to need special education or related services because of a disability.⁴⁴ When a school is aware of a student’s disability, or has reason to suspect a student has a disability, and the student needs or is believed to need special education or related services, it would be a violation of Section 504 if the school delays or denies the evaluation.⁴⁵

In some circumstances, the IDEA evaluation process may provide the school district with the necessary information, required by Section 504, to determine whether a student has a disability, and whether that student needs related aids and services or supplementary aids and services in the regular education environment because of that disability. However, if a State or school district uses a separate process for evaluating the needs of students under Section 504, it must follow the requirements for evaluation specified in the Section 504 regulations.⁴⁶

For example, those students who have a high-number of discipline referrals for inappropriate verbal outbursts in class, as compared to their peers, could be students with disabilities in need of services. Some students, due to an unaddressed disability, may engage in behaviors that do not conform to school codes of conduct because the students are not receiving needed special education or related aids and services, including needed services to address behavior. These and other indications that a student’s behavior is out of the expected range of behaviors for students of similar age may trigger a school district’s obligation to evaluate under Section 504 to determine whether the student has a disability and needs special education or related services as a result of that disability.

A school district must, at no cost to parents, evaluate students who are suspected of having a disability, or more than one disability, in all related or all specific areas of educational need.⁴⁸ For example, a student who is easily distracted and unfocused may be manifesting attention-deficit/hyperactivity disorder (ADHD), depression, or a specific learning disability.⁴⁹ There is a range of physical or mental impairments that could cause a student to have a disability under Section 504 and to need special education or related services because of that disability, but this determination cannot be made without first evaluating the student.

If a school district determines, based on the facts and circumstances of the individual case, that a medical assessment is necessary to conduct a Section 504 individual evaluation in order to determine whether a child has a disability under Section 504 and needs special education or related services because of a disability,⁵⁰ the school district must ensure that the student receives this assessment at no cost to the student’s parents.⁵¹ When determining if the student has a disability and needs special education or related aids and services, school districts are also required to have procedures to ensure that evaluation information is documented and carefully considered.⁵²

In OCR’s investigative experience, school districts sometimes rely on a student’s average, or better-than-average, classroom grades or grade point average (GPA) and, as a result, make inappropriate decisions. For example, a school district might wrongly assume that a student with an above-average GPA does not have a disability and therefore fail to conduct a Section 504 evaluation of that student, even if the school suspects that the student has ADHD or the school is aware that the student has been diagnosed with ADHD outside of school.

However, a student with a disability may achieve a high level of academic success but may nevertheless be substantially limited in a major life activity due to the student’s impairment because of the additional time or effort the student must spend to read, write, or learn compared to others.⁵³

Scenario 1 – Suspected Disability & Evaluation

Rosita is a fourth grade student at her local public elementary school. Her teacher notices that Rosita has trouble concentrating during class lessons and that it takes Rosita significantly longer than most students to complete in-class assignments. While the teacher acknowledges that it is very difficult for Rosita to stay seated and on-task, she does not think Rosita needs special education services because she is earning B’s and C’s. What should the teacher do?

In this situation, Rosita’s teacher needs to inform the proper individuals in the school system that Rosita needs to be evaluated. It is only through an evaluation process that a school district can properly determine if a student has a disability and needs Section 504 services. Note that grades alone, whether good or bad, do not necessarily indicate whether a student has or does not have a disability. Even if Rosita does not require special education, she could still receive other Section 504 services if she meets the Section 504 definition of disability and is in need of related aids or services or supplemental services. For example, Rosita may have ADHD and may, because of her ADHD, need extra time to complete assignments and assistance from a classroom aide to stay on task during class. However, even if Rosita does not require either special education or related aids and services, as long as she is a student with a disability under Section 504, she is still protected under that law from other forms of discrimination (for example, bullying and harassment - see the discussion on page 32). The teacher’s referral of Rosita for evaluation is central to complying with Section 504 here.

Scenario 2 – Suspected Disability & Involvement of Knowledgeable People

Robert’s seventh grade teachers report that he often falls asleep, without warning, during class and misses instruction. His parents insist that he gets a good night sleep but note that their pediatrician told them Robert might have narcolepsy, a chronic brain disorder that involves poor control of sleep and wake patterns. What should the teachers do?

Staff should seek an evaluation to determine whether Robert has a physical or mental impairment that is interfering with his ability to stay awake. The group who meets to review this evaluation and make a decision about services must consist of knowledgeable people (for example, school nurses, teachers, counselors, psychologists, school administrators, social workers, doctors, etc.) who, in interpreting evaluation data and determining the needed services, carefully review and analyze information collected from a variety of sources (for example, the pediatrician’s report; aptitude and psychological test results; the student’s grade reports; teacher observations; the student’s social and cultural background; the student’s family).

If the evaluation, which must be conducted at no cost to the parents or student, shows that the student has a disability, then the knowledgeable group (that is, people who are knowledgeable about the student, the meaning of the evaluation data and about the placement options), must together determine placement, including the special education or related aids and services the student needs under Section 504.

Scenario 3 – Disabilities in Remission

Doctors diagnosed Omar with cancer at the beginning of the summer break, between fourth grade and fifth grade. When initially diagnosed, Omar was weak and tired all the time, and, at times, unable to even get out of bed or dress or feed himself. He received chemotherapy in July and August and returned to school, without any symptoms of his disease, at the beginning of the school year. At that time his parents informed the school of Omar’s cancer diagnosis. It is now November and doctors have informed Omar’s parents that his disease appears to be in remission. Omar’s mom notes that he runs and plays like all the other children and his grades are great. How would a group of knowledgeable persons determine if Omar has a disability?

A student who has an impairment that is episodic (for example, epilepsy or post-traumatic stress disorder) or in remission is considered to be a person with a disability if, when active (that is, when symptoms are evident or reoccur), the impairment substantially limits a major life activity. When active, Omar’s illness left him weak and unable to get out of bed. In other words, when active, cancer substantially limits his ability to care for himself which, under Federal law, is a major life activity. Moreover, the cancer substantially limits the major bodily function of normal cell growth, which is also a major life activity under Federal law. For this reason, the group of knowledgeable persons would determine that Omar is a student with a disability.

However, he may or may not require special education or related aids and services that are designed to meet his individual educational needs as adequately as the needs of non-disabled students are met. Even if Omar does not need special education or related aids and services, he would still be protected under Section 504, for example, from bullying and harassment based on his disability.

School districts must have standards and procedures to evaluate students who may have a disability and need special education or related services.⁵⁴ The evaluation of a student, however, must be individualized. Although Section 504 does not require a specific process, the standards and procedures must meet certain requirements. Specifically, the evaluation standards and procedures must ensure that:

• Evaluations consist of more than IQ tests;⁵⁵

• Evaluations measure specific areas of educational need. These could include speech processing, inability to concentrate, and behavioral concerns;⁵⁶

• Tests are selected and administered to the student in a manner that best ensures that the test results accurately reflect the student’s aptitude or achievement or other factor being measured, rather than reflect the student’s disability, except where those are the factors being measured;⁵⁷

• Tests and other evaluation materials are validated for the specific purpose for which they are used;⁵⁸ and

• Tests are appropriately administered by trained personnel.⁵⁹

Scenario 4 – Appropriate Testing

Juan is a student in the third grade. His teacher tests reading comprehension with written in-class quizzes. Juan has trouble finishing the quizzes on time, and his answers are short and incomplete. Because of the poor responses on the quizzes, Juan’s teacher believes he may have a disability related to his ability to understand what he reads (reading comprehension skills). The school conducts an evaluation that requires Juan to read a passage and to write responses to a series of questions about the passage. Was this testing appropriate to evaluate Juan’s suspected disability?

This test would not be appropriate for determining whether Juan has a disability related to reading comprehension if he has a disability related to writing. Specifically, if Juan struggles with writing, such as trouble staying in the margins, organizing words left to right and getting words on paper, Juan may have a disability related to his ability to write manually and may not score well on the test because he cannot finish answering questions in the time given, not because he does not understand the reading passage. In this example, Juan may have excellent reading comprehension skills, but his inability to write well quickly may result in a low test score.

Scenario 5 – Timeframes for Evaluation

Mr. Williams is very concerned. In September, two weeks after the new school year began, his 16 year-old son told him that he was having a hard time hearing his teacher and, as a result, he is unable to take detailed notes during class lectures. The school promised to evaluate the student, and Mr. Williams consented to the evaluation before the end of September. However, it is now December and, to date, his son has not been evaluated. Should the school have completed the evaluation before December?

Most likely, yes. Section 504 does not provide a specific amount of time for school districts to complete an evaluation. However, under the IDEA (another Federal law that protects students with disabilities and of which schools should be aware), an initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation or if the State has established a different timeframe for conducting the evaluation, within that timeframe. OCR generally looks to the IDEA timeline, or if applicable, to State requirements or local district policy to assess the reasonableness of the time it takes the school to evaluate the student once parental consent has been obtained.

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

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

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

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

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.

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

Scenario 6 – Disagreement Over Need to Evaluate

Maya is a good student who has an A in reading, an A in math, and a B in each of her other classes. She maintains these grades even though she has been absent several times since the beginning of the school year for a gastrointestinal disorder. In addition, she often has to leave school early because of vomiting. Maya’s mom took Maya to the doctor and, the following week, Maya’s mom presented Maya’s teacher with a medical report indicating that Maya suffers from gastroesophageal reflux disease (GERD). Maya’s mom then asked the teacher if the school would evaluate Maya to see if she is eligible for Section 504 services. The teacher told Maya’s mom not to worry, noting that an evaluation "is not necessary at this time because Maya continues to do well in all her classes." The teacher then promised to let Maya’s mother know immediately if Maya’s grades begin to decline. Should the teacher have responded in this manner?

No. Not every illness will automatically result in Section 504 protection for the affected student. On the other hand, even if a student earns good grades, he or she may still have a disability. For example, even if Maya’s disease did not interfere with her ability to attend school, she might still be determined to be a student with a disability under Section 504 because the disease substantially limits a major life activity (that is, her ability to digest food). In such a situation, Maya may not need special education or related aids and services; however, she would still be protected (for example, from bullying and harassment based on disability) under Section 504.

Given these specific facts—a medically-diagnosed problem with the student’s digestive system, and the parent’s report that the student is frequently forced to miss school because of this medical problem—Section 504 would require the school to refer Maya for a Section 504 evaluation to determine whether she needs special education or related aids and services, including modifications, because of a disability. Note that if the school fails to conduct an evaluation of the student and it is later determined that a school evaluation was necessary, and that Maya needed, but did not receive, special education and/or related aids and services, the school would be in violation of Section 504 and may be required to provide compensatory services for Maya for the period during which the school failed to offer FAPE.

The Section 504 regulations require school districts to draw upon information from a variety of sources in interpreting evaluation data and making placement decisions. In other words, while a medical diagnosis alone can inform school staff about whether a student has a disease that substantially limits a major life activity, it is unlikely that a medical diagnosis alone will also provide enough information for school staff to determine what services the student needs. Other information that could also be collected and analyzed includes, for example, attendance records, parent information, grade reports, aptitude and achievement tests, teacher recommendations, and the student’s physical condition, social or cultural background, and adaptive behavior.⁷³ The type of tests and other information obtained will vary for each individual student depending on the suspected impairment.

In this scenario, Maya has a disability. Because Maya’s medically diagnosed impairment interferes with her ability to attend school, the school district may need to, among other things, modify how the school’s attendance policy applies to Maya to ensure that Maya is given extra time to complete assignments when she is absent because of her disability and that she is not penalized for absences resulting from her disability.

Finally, even if the teacher did not make the referral because she did not believe that Maya needed special education or related services as a result of her digestive disorder, the teacher or other school personnel should have provided Maya’s mother with a copy of the district’s procedural safeguards, which would include information about the opportunity to have an impartial hearing to resolve the disagreement over Maya’s need for an evaluation, and an opportunity to review her daughter’s records.

Section 504 requires school districts to conduct periodic reevaluations of students with disabilities.⁷⁴ Section 504 also requires school districts to conduct reevaluations prior to significant changes in placement.⁷⁵

• OCR considers an exclusion from the educational program (for example, an out-of-school suspension) of more than 10 consecutive school days to be a significant change in placement.⁷⁶

• OCR also considers a series of short-term exclusions (each 10 school days or fewer) from the educational program to be a significant change in placement, if the short-term exclusions total more than 10 school days and create a pattern of removal.⁷⁷

• OCR also considers a school’s transferring a student from one type of program to another (for example, from a general education class with pull-out special education services to a self-contained special education class) or terminating or significantly reducing a related service to be a significant change in placement.⁷⁸

In addition, when addressing discipline for students with disabilities, it is important that schools comply with applicable legal requirements governing the discipline of a child for misconduct caused by, or related to, the child’s disability.⁷⁹

Scenario 7 – Reevaluations and FAPE

Salim is a student with a disability and he has a Section 504 plan. At the start of the spring semester, he received an out-of-school suspension for 12 consecutive school days. Is the school required to reevaluate Salim?

Yes. Although the Section 504 regulations do not set a specific timeframe within which students with disabilities must be reevaluated to make sure that they are receiving the appropriate services, Section 504 requires schools to conduct reevaluations periodically, and before a significant change in placement. OCR considers an exclusion from the educational program of more than 10 consecutive school days to be a significant change in placement.⁸⁰ In this example, the school must reevaluate Salim, prior to imposing the 11th day of suspension, to determine whether his misconduct is caused by or related to his disability (manifestation determination), and if so to further evaluate to determine if his current placement is appropriate.⁸¹