Section 504:
The 1973 Rehabilitation Act
WA School Counselors’ Association
Conference
March 3, 2012
Equal Opportunity
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Nothing is more unequal than the
equal treatment of unequal people...
 Author Unknown
Section 504 states...
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No otherwise qualified individual
with a disability...Shall, solely by
reason of his or her handicap, be
excluded from the participation in,
be denied the benefits of, or be
subjected to discrimination under
any program or activity receiving
federal financial assistance.
THIS IS THE LAW!!!
Discrimination
Discrimination is the exclusion from
participation in, the denial of
benefits of, any program or activity
receiving or benefiting from federal
financial assistance. Students may
not be denied participation in or be
denied benefit from services that
are afforded non-disabled students.
Equal Education Opportunities

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An appropriate education is a
program designed to meet the
individual educational needs of
individuals with disabilities as
adequately as the needs of nondisabled students are met
Free Appropriate Public
Education!!!
Who are the “pure” Section 504
Students?
Section 504 Students
IDEA
Not IDEA Eligible?

Section 504 eligibility is not a
consolation prize for students who
do not qualify for special education.
 Perry Zirkel, Lehigh University
Handicapped Persons
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(1) “Handicapped persons” means any
person who (i) has a physical or mental
impairment which substantially limits
one or more major life activities,
(ii) has a record of such an impairment,
or
(iii) is regarded as having such an
impairment.
 OCR: Staff Memo, 1992, 19 IDELR 894
Major Life Activities are critical to
eligibility
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The major life activity piece is often
the wild card in the 504-eligibility
process.
MLA is probably the most
misunderstood part of the eligibility
rubric. These are basic functions
that make us human.
Focus of Determining Eligibility

The basic elements that constitute a
major life activity,
AND

Whether a substantial limitation is
related to such an activity.
What about LEARNING?
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Learning is the primary emphasis in schools,
BUT...
A student does not need to be substantially
limited in the major life activity of learning to
be eligible under Section 504:
EXAMPLE: Physical or mental impairments
may substantially limit major life activities
other than learning that interfere with a
student’s ability to access and benefit from
the school’s programs and activities. This
type of impairment would trigger 504
eligibility.
Making Eligibility calls

Ask yourself

Does the disability prevent the student
from getting what everyone else gets?
If not, then there’s no Section 504
eligibility.
Substantial Limitation

Significantly restricted as to the
condition, manner, or duration
under which an individual can
perform a particular major life
activity as compared to the
condition, manner, or duration
under which the average person
in the general population can
perform the same major life
activity.
 29 CFR 1630.2(J)(2)
Determining Substantial limitations
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Does an impairment substantially
impact a student’s learning?
Measuring learning success is a difficult
task. What does it mean to “succeed” in
regular education? (not entirely clear)
Guideline: Students with learning
disabilities who pass from grade to
grade while functioning further and
further below norms for their age are
NOT succeeding in regular ed.
No single formula or scale to measure
substantial limitation

The determination of substantial
limitation must be made on a caseby-case basis with respect to each
individual student.
Substantial Limitation

•
•
Changes as of January 2009:
Lower Standard: reduce the depth
of analysis related to the severity of
the impairment limitation. Focus on
discrimination (access to services)
Are activities limited in Condition,
Duration or Manner?
Substantial Limitation Changes:
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An impairment that substantially limits
one major life activity need not limit
other major life activities in order to be
considered a disability.
Example: The ADA Amendment rejects
the assumption that an individual who
has performed well academically cannot
be substantially limited in activities such
as learning, reading, writing, thinking or
speaking.
Substantial Limitations

Episodic or in Remission?
• This is a disability if it would
substantially limit a major life
activity when active.
• Example: Seizure disorder that is in
remission.
Questions for 504 Building teams to
use to determine eligibility
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What is the nature and severity of the
impairment?
What is the duration, or expected duration, of
the impairment?
Does the student consistently need extended
time to complete assignments?
Does the student consistently need
substantial changes made to the curriculum?
Questions for 504 Building teams to
use to determine eligibility
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Does the student consistently
exhibit difficulties with planning and
organization?
Has the student shown a consistent
downward slope in academic
progress?
Has the student shown a consistent
pattern of negative behaviors?
Major Life Activities
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Previous major life activities:
• Caring for oneself
•
•
•
•
•
Performing manual tasks
Seeing & hearing
Speaking
Breathing
Learning and working
Major Life Activities
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Changes as of January 2009:
• Eating & Sleeping
• Walking & Standing
• Lifting & Bending
• Reading
• Concentrating
• Thinking & Communicating
Mitigating Measures

•
New Changes as of January 2009:
Schools cannot consider the effect
of mitigating measures when
determining qualification.
• Examples: medication, medical
supplies, equipment, prosthetics,
hearing aids, mobility devices,
assistive technology, etc.
So, faced with these changes, how
should you proceed???
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1. Determine if the student has a qualifying
impairment. Start there, and then move
through the other aspects of the eligibility
definition process.
2. Take time to learn more about the types of
adaptations a student uses outside of the
school environment.
3. Talk to the student and his parents about
the types of adaptations he uses and for what
reasons.
The 504 Meeting
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Part I: Examine student data
Medical or psychological reports
Parent testimony
Teacher feedback
Test scores, attendance reports,
grades, behavior reports, etc.
Is a diagnosis of ADD/ADHD enough
to trigger 504 eligibility?

In a word, “No”. A medical
diagnosis is only one source used in
evaluating a student with an
impairment or believed to have an
impairment which substantially
limits a major life activity.
Other sources to consider:
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Aptitude and achievement tests
Teacher recommendations
Physical condition
Social and cultural background
Adaptive behavior
Common ADD/ADHD Misconceptions
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Misconception: Staff members may
blame a student’s lack of progress on
being lazy.
Misconception: A student must fail
all of his classes to receive
accommodations.
Misconception: General education
interventions supplant the need for
accommodations.
Misconception: The student takes
medication, so he doesn’t need
Discipline
A handicapped student may not be suspended
for more than ten days without a
determination that misconduct is not caused
by the disability
The determination is made by the same
people making the Section 504 placement
decision
District must conduct a re-evaluation
Must take into account recent evaluation data
that provides an understanding of the
student’s current behavior.
 OCR: Long-term Suspension or Expulsion,
1988
Manifestation Determination
Is the student accommodation plan
appropriate?
Is the current placement appropriate?
Was the student accommodation plan
implemented?
Did the disability impair the student’s
understanding of the consequences of
the behavior?
Did the impairment limit the student’s
ability to control the behavior?
Discipline
Include parents in the manifestation
determination.
The 504 team shall modify the current
educational placement when the
misconduct is directly caused by the
disability, if appropriate, an alternative
educational placement.
The principal may initiate normal
disciplinary procedures when the
misconduct is not directly caused by the
disability.
Substance Abuse
Current drug users are excluded
from the definition of handicapped
under Section 504 and the ADA
Current drug and alcohol users are
subject to the same disciplinary
action to the extent applied to non
handicapped students for similar
conduct.
 OCR: Staff Memo, 1991, 17 IDELR
609
References
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Material from this presentation used
with permission from
James F. McKethan, Ed.D.
Who’s Eligible for Section 504? A
Quick-Reference Guide for Proper
Placement, LRP Publications, 2010.
Questions?

Becky Ballbach
Everett Public Schools
District School Counseling Program
Specialist
(425)385-6691
rballbach@everettsd.org