By Miriam A. Nunberg, Esq.

If your child with a disability has been denied an IEP due to high grades, you may have an easier time getting services under Section 504. This federal law is often overlooked and poorly understood. Worse, often only savvy and wealthier parents have luck obtaining meaningful 504 services, in part because districts erroneously leave it to parents to ask for them. However, Section 504 can be a fairly powerful way to get help for your child – not in the least because schools (including charters, but not most private schools) must comply with its requirements in order to receive federal funding.[1]

Section 504 prohibits schools from discriminating against children with disabilities. It also includes a requirement that schools provide a free, appropriate public education (FAPE) to children who have an impairment that qualifies as a disability. While the 504 FAPE requirement is not nearly as specific as that in the IDEA, it requires the provision of regular or special education and related aids and services designed to meet the student’s individual educational needs as adequately as the needs of non-disabled students are met. Keep reading to understand what in the world that actually means.

Section 504’s Definition of a Disability

The interesting thing about how Section 504 defines a disability is that it is relatively simple. A child must be a resident of a school district (or enrolled in a charter or “non-public school”) who has an impairment that causes them to be “substantially limited in a major life activity” – i.e. a disability as defined by law.[2] That’s it. No proving that the impairment adversely impacts educational performance (as when seeking an IEP). To be protected by Section 504, you simply need to prove that the child has an impairment that substantially interferes with the performance of any major life activity (i.e. bodily, psychological or cognitive function). Major life activities include thinking, reading, writing, concentrating, processing information, regulating emotions, neurological or respiratory functions, etc. Impairments such as dyslexia and ADHD are included, as they limit the major life activities of reading or decoding, or concentrating, planning and focussing.

The US Department of Education has explained that “major life activities include certain acts a person does (such as hearing, speaking, lifting) and a person’s bodily functions (such as lung disease that affects a person’s respiratory system, or a traumatic brain injury that affects the function of the brain).” There is no definitive list of major life activities because this category is intended to be inclusive.[3]

The term “substantially limits” is also not clearly defined, but Congress has stated that this term does not mean that someone has to be completely unable to perform a major life activity.[4] The impairment has to make it so that the individual performs the activity less well than the general population. There is no specific measure of how limited a child must be to qualify.[5]

Some examples offered by the U.S. Department of Education might be helpful in understanding what it means to be “substantially limited in a major life activity.”

A student who has dyslexia (substantially limited in reading) finds it challenging to read the required class material in a timely manner. Alternatively, a student who has been diagnosed with depression may be substantially limited in her ability to concentrate while completing school assignments. In both of these cases, the student spends far more time preparing for class than other students and earns good grades because of the student’s intelligence and extreme efforts. The student would still be substantially limited in the major life activity of reading despite earning good grades and may require a multi-sensory approach to learning, and additional time to complete in-class tests or quizzes, even if that student earns mostly A’s.

In both of these situations, the students take more time to complete their work compared to others of similar age and aptitude. There is no magic cut off for how much more time, but the question here is whether their impairment regularly causes them to take significantly more time than their peers. If so, then under 504 they would be considered to have a disability, as they have an impairment that substantially limits a major life activity (as here, in reading and concentrating).

High Grades Do NOT Come Into the 504 Eligibility Analysis!

Two crucial things to remember about qualifying for FAPE under Section 504 are: 1) the child does not have to be substantially limited in the major life activity of learning to qualify, and 2)  high grades do not prevent a child from qualifying. Another example might help to clarify:

Lily has a superior IQ and does well enough in school to be on the honor roll. She also has ADHD and anxiety. Her anxiety causes her to spend a lot of unnecessary time perfecting her homework, so it takes her hours longer than it takes other students. Due to her ADHD, she often forgets to turn in her work once it’s done, loses it or leaves it at home. Her teachers are very forgiving and let her turn in her work late, since whenever she does manage to turn it in, it’s exceptional.

Applying the 504 analysis: Lily’s impairments cause her to be substantially limited in the major life activities of concentration, organization and self-confidence (assuming that’s a major life activity – you might have to be creative in pinning down the major life activity impacted by an impairment like anxiety). You know her limitations are substantial because of how much longer it takes her to do the work than it takes other students, and how much more frequently she loses or forgets her work. The quality of her output (the school work) is not part of the eligibility analysis, since she doesn’t have an impairment that limits reading, writing, doing math or whatever skills she must draw upon to actually do her work. But since Lily’s impairments substantially limit several major life activities, she might qualify for an accommodation plan that provides her with FAPE.

How Should a School Determine if a Child Qualifies for a 504 Plan?

In analyzing whether Lily’s impairments cause a substantial limitation, the school would be required to offer to evaluate her, and then would look at comprehensive information about her drawn from a variety of sources.[6] This information should include all information about her impairment that can show whether or not a substantial limitation exists. Schools should also look at pediatricians’ reports, aptitude and psychological test results, the student’s grade reports, teacher observations, the student’s social and cultural background, and information provided by the student’s family. The group who meets to review this evaluation and make a decision about services must consist of individuals knowledgeable about the student, the disability and the meaning of the evaluation data (for example, school nurses, teachers, counselors, psychologists, school administrators, social workers, doctors, etc.) who are able to carefully review and interpret all the evaluation data presented.

Evaluations must be conducted at no cost to the parent, even if a medical assessment is required.[7] The district “must evaluate students who are suspected of having a disability, or more than one disability, in all related or all specific areas of educational need.”[8]So if a school tells you, for example, that you are required to get your child tested for ADHD on your own since that requires a medical diagnosis, it is simply untrue.

A parent can request an evaluation proactively, but under a legal construct called “Child Find,” the school is actually obligated to “identify, locate, and conduct a free evaluation of any student who because of a disability ‘needs or is believed to need’ special education or related services.”[9]

Following the evaluation and review by a group of knowledgeable individuals, Lily might then qualify for a 504 plan to provide her with individualized supports and services needed to help her essentially remove the effects of her disability on her capacity to access her education. Her high grades are not a reason to disqualify her for services. Her 504 plan could include anything needed to address the impact of her disability and provide her with FAPE: this can include classroom accommodations, organizational tutoring, fewer homework problems, a home-school communication system or even a paraprofessional. The services can be anything that the group determines Lily needs, and should not be limited to ones that are free to the school (parents can never be charged for them).

What Does a 504 Plan Look Like?

Although schools are not legally required to put 504 plans in writing, they often do so to memorialize exactly what FAPE looks like for a student with a disability; a written plan also helps to keep track of what has been agreed upon. These plans  come with a set of procedural protections designed to ensure that they are properly developed and followed. In my experience, it is unfortunately sometimes hard to get schools to conform to the actual requirements of Section 504, in part because it is so broad and fairly vague. However, 504 plans are in fact legally enforceable, so can be very useful for high achieving students with disabilities.

Mitigating Measures

Let’s say Lily’s mom got sick of constantly monitoring her work and hired an executive functioning tutor. The tutor helped Lily get organized and create a system for managing and tracking her work, and helped her remember to turn her work in on time. Can Lily still qualify for services at school?

The answer is yes! After the ADA was amended in 2008 (which for complicated reasons, extended to Section 504), the law is now clear that outside services or coping strategies learned from outside services cannot serve to block a student from being eligible for protection under 504. These things are considered “mitigating measures” and many not be looked at when schools determine 504 eligibility. When a child is only succeeding due to outside tutoring, for example, if a parent requests that the school provide similar services as part of a 504 Plan, the school cannot decline services because the mitigating measures minimize the appearance of the disability. This is even true in cases where a child takes medication, another mitigating measure. However, if the medication alleviates the symptoms completely, the school may not need to provide services.

Note though that if the medication stops working or if the child stops taking it, once the symptoms of the impairment are evident, he would be entitled to whatever accommodations he needs to receive FAPE, regardless of how high his grades are. Also, schools absolutely are not allowed to insist that a child take medication to control symptoms.

Temporary Disabilities

A quick word about temporary situations where a student sustains a substantial limitation that is not anticipated to be permanent. Under the ADA and 504, the school must accommodate a student if he or she has an injury that is not “transitory AND minor.”[10] Transitory means something that lasts six months or less. However, an injury is not considered minor if it “substantially limits a major life activity.” This is true even if the injury lasts less than six months. Major life activities can be any bodily function necessary for daily life, such as walking or climbing stairs. Thus if a child has a temporary impairment that substantially limits a major activity, the school should assess whether any accommodations are necessary and develop an appropriate plan for providing them.

Section 504 Eligibility and FAPE

As I said earlier, to qualify for FAPE under 504, a child with a disability must require regular or special education and related aids and services designed to meet his individual educational needs as adequately as the needs of non-disabled students are met. In other words, the disability has to impact the child’s access to the educational environment in some manner that requires accommodation. So if the mitigating measures completely remove the impact of the disability, then the child might be eligible for protection against discrimination under 504, but not actually eligible for services or accommodations.

An example:

Charlie has Tourette Syndrome, for which he takes medication. The medication controls his symptoms now, but other students remember past years when he used to have verbal and motor tics. He has been bullied at times by other children who call him “Ch-Ch-Charlie.” However, his illness does not interfere with his ability to do his work or function at school in any other way.

 In this case, Charlie is eligible for the protection of Section 504 in that he is a student with a disability entitled to be free from discrimination. The school must respond effectively to the bullying, and ensure that Charlie is not harassed on the basis of disability. However, since Charlie’s symptoms are completely controlled by the medication, there is no need for the district to provide him with FAPE. In other words, if the mitigating measures completely eliminate the symptoms of the disability and are not measures that the school itself should be taking (such as executive functioning support in Lily’s case), then the child is still covered generally by 504, but does not require any services.

504 Overall

In summary, Section 504 can be a useful tool for cases where a child has been denied an IEP due to high grades. As long as a child has an impairment that substantially limits a major life activity, the school is required to follow the procedures of Section 504. If the impairment interferes with the child’s ability to access the educational environment as well as similar children without disabilities[11], the school must then develop a clear plan that provides the child with a free, appropriate public education.

Remedies for 504 Conflicts

If your school does not follow 504’s requirements, there are several federal guidances that can be of help in making your case. The first is the Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, and the second is the Resource Guide on Students with ADHD. They both lay out the standard well and give clear examples that you can use to help make your case for a meaningful 504 plan that provides FAPE to a child with a disability – high grades notwithstanding. Simply showing them these documents (or relevant excerpts) can sometimes help you break down misconceptions.

If the school fails to respond, fails to follow a 504 plan, or if your child is denied a 504 plan due to failure to follow the procedural requirements or blanket policies (“we only give double time on tests for kids with developmental disabilities” as I heard from a district recently), you have several options. You can try to appeal to the district’s 504 Coordinator – especially if there are gross misapplications of the law. You can file for mediation, go to impartial hearing, or in certain circumstances,[12] file a complaint with the US Department of Education’s Office for Civil Rights. Many states and localities also accept complaints in this regard.

Conclusion

If you decide to pursue a 504 plan, make sure to insist the school use the proper 504 analysis: is the child substantially limited in a major life activity (not just learning)? And if so, what specific supports are needed to provide the child with FAPE? Make sure to familiarize yourself with the legal resource materials I have linked throughout this article, especially the OCR 504 related guides. They can be a great reference to share with the school, since many school personnel are used to using Section 504 mostly for testing accommodations or medical support. Don’t be afraid to work with an advocate behind the scenes, so that you can make the strongest case possible for your child – just make sure that they are really familiar with 504 as well as the IDEA.

If you arm yourself with the law from the get-go, you may be able to avoid having to pursue formal legal recourse later. You can be your child’s best advocate!

ENDNOTES

[1] This requirement means that 504 applies to any educational program receiving federal funding. So charter schools, programs run by libraries and “non-public schools” (i.e. schools such as Hunter College High School in New York City, which is a public school run by a public college) are all subject to 504.

[2] If you want to get really technical, the definition of disability under 504 is actually set by the Americans with Disabilities Act (as amended in 2008). For a good summary of how this works, see Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools (ADAAA FAQs).

[3] The list of major life activities covered by 504 includes, but is not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. See, the ADAAA FAQs.

[4] 42 U.S.C. § 12102(4)(A). The Americans with Disabilities Act Amendments Act of 2008 (Amendments Act) amended both the Americans with Disabilities Act (ADA) and the Rehabilitation Act definition of disability for Section 504 to broaden the meaning of disability and the protections under these Federal laws. See 42 U.S.C. § 12101 notes; 154 Cong. Rec. S8342, 8346 (daily ed. Sept. 11, 2008) (statement of the Managers to Accompany S. 3406, The Americans with Disabilities Act Amendments Act of 2008). See also OCR, Dear Colleague Letter: Americans with Disabilities Act (Jan. 19, 2012),  and accompanying Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools (Jan. 19, 2012).

[5] Congress also directed that the definition of disability should be understood broadly and that the determination of whether an individual has a disability should not demand extensive analysis. 42 U.S.C. § 12102.

[6] In other words, the school is required to conduct a comprehensive evaluation of Lily, which will be discussed in greater detail below.

[7] See, Parent and Educator Guide to Section 504, US Department of Education’s Office for Civil Rights, December 2016.

[8] Parent and Educator Guide to Section 504, page 18.

[9]Resource Guide on Students with ADHD and Section 504, US Department of Education, Office for Civil Rights, July 2016, page 9.

[10] href=”https://www.law.cornell.edu/uscode/text/42/12102″>42 U.S. Code § 12102 (3)(B)

[11] Similarly situated children would be generally children of the same level of intelligence and other abilities.

[12] These require more than a disagreement over whether the child qualifies for a 504 plan, such as failure to properly review evaluations, failure to include you in the 504 discussion or having a team that did not include the correct members. If you are unclear whether the denial was procedural or substantive, you can always call your local office and ask for technical assistance.