An Overview of a Free Appropriate Public Education

Section 504 and the IDEA contain requirements for FAPE for students with disabilities, but there are some differences. Under the IDEA, FAPE is a statutory term.³⁴It requires a school district to develop an individualized education program (IEP) for each eligible student with a disability that sets out, among other information, the student’s program of special education and related services. In this section, however, we discuss the FAPE requirements under Section 504 only.

You can go to page 40 for a discussion of the differences between Section 504 FAPE and IDEA FAPE.

All elementary and secondary school students who are qualified individuals with disabilities, as defined by Section 504, and who need special education and/or related aids and services are entitled to FAPE. Under Section 504, FAPE is the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of non-disabled students are met and are based on adherence to procedures governing educational setting, evaluation and placement, and procedural safeguards.³⁵ Implementation of an IEP developed in accordance with the IDEA is one means of meeting the Section 504 FAPE standard.³⁶

Though not explicitly required by the Department’s Section 504 regulations, school districts often document the elements of an individual student’s FAPE under Section 504 in a document, typically referred to as a Section 504 Plan.

In general, a Section 504 Plan describes the regular or special education and related aids and services a student needs and the appropriate setting in which to receive those services.

A written Section 504 Plan is often a useful way to document that the school district engaged in a process to identify and address the needs of a student with a disability and to communicate, to school personnel, the information needed for successful implementation. OCR encourages schools to document a student’s Section 504 services in a written plan to help avoid misunderstandings or confusion about what Section 504 services the school offered the student. Note, however, that IDEA-eligible students with disabilities who have an IEP are not required to also have a Section 504 plan even though they are protected under Section 504. For these students, the IEP developed and implemented in accordance with the IDEA is sufficient.

Under Section 504, FAPE must be provided free of charge to students with disabilities.³⁷ Schools may impose fees on a student with a disability only if the fees are equally imposed on students without disabilities.³⁸ For example, fees to cover the cost of a field trip that apply to all students are fees a school can charge to a student with a disability.

Key features of FAPE under Section 504 include:

Evaluation and placement procedures that guard against misclassification or inappropriate placement of students;³⁹
Periodic reevaluation of students who have been provided special education or related services and prior to a significant change in placement;⁴⁰
Provision of regular or special education and related aids and services that are designed so that the individual educational needs of students with disabilities are met as adequately as the needs of non-disabled students are met;⁴¹
Education of students with disabilities with non-disabled students—to the maximum extent that this arrangement is appropriate for the needs of students with disabilities;⁴²
A system of procedural safeguards (that is designed to inform parents of a school district’s actions or decisions and to provide parents with a process for challenging those actions or decisions) that include notice; an opportunity for parents to review their child’s records; an impartial due process hearing (with an opportunity for participation by the student’s parents or guardians and representation by counsel); and a review procedure.⁴³

³⁴ 20 U.S.C. § 1401(9) and 34 C.F.R. § 300.17.

³⁵ 34 C.F.R. § 104.33.

³⁶ 34 C.F.R. § 104.33(b)(2).

³⁷ 34 C.F.R. § 104.33(c).

³⁸ Id.

³⁹ 34 C.F.R. § 104.35.

⁴⁰ 34 C.F.R. § 104.35(d).

⁴¹ 34 C.F.R. § 104.33(b)(1)(i).

⁴² 34 C.F.R. § 104.34(a).

⁴³ 34 C.F.R. § 104.36.

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

A school district must evaluate a student if it has reason to believe the student has a disability and the student needs special education or related services as a result of that disability, even if the student only exhibits behavioral (and not academic) challenges.⁴⁷

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

⁴⁴ 34 C.F.R. § 104.35(a). English Learner (EL) students who may have a disability, like all other students who may have a disability and may require special education or related aids and services under Section 504, because of that disability, must be located, identified and evaluated in a timely manner. 34 C.F.R. §§ 104.32 and 104.35(a)-(b). To avoid inappropriately identifying EL students as students with disabilities because of their limited English proficiency, an EL student must be evaluated in an appropriate language based on the student’s needs and language skills. For additional information, see OCR and DOJ, Dear Colleague Letter: English Learner Students and Limited English Proficient Parents (Jan. 7, 2015), www.ed.gov/ocr/letters/colleague-el-201501.pdf.

⁴⁵ 34 C.F.R. § 104.35.

⁴⁶ Id.

⁴⁷ 34 C.F.R. § 104.33.

⁴⁸Id; 34 C.F.R. § 104.35

⁴⁹ Research estimates that approximately one-quarter to one-third of all children with ADHD also have a learning disability, and that they have coexisting psychiatric disorders at a much higher rate than students without ADHD. See U.S. Department of Education, Teaching Children with Attention Deficit Hyperactivity Disorder: Instructional Strategies and Practices (2004), www.ed.gov/teachers/needs/speced/adhd/adhd-resource-pt2.doc.

⁵⁰ A specific diagnosis is not actually necessary if the school determines a student is substantially limited in a major life activity and that limitation is caused by a mental or physical impairment. 34 C.F.R. §§ 104.3(j), 104.35; see also OCR, Dear Colleague Letter and Resource Guide on Students with ADHD, 23 n.70 (July 26, 2016), www.ed.gov/ocr/letters/colleague-201607-504-adhd.pdf.

⁵¹ 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, 23 n.71 (July 26, 2016), www.ed.gov/ocr/letters/colleague-201607-504-adhd.pdf; 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 (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.

⁵² 34 C.F.R. § 104.35(c)(2).

⁵³ 28 C.F.R. § 35.108(d)(3)(iii). See also 29 C.F.R. pt. 1630, App. (Equal Employment Opportunity Commission Interpretive Guidance on Title I of the Americans with Disabilities Act) (discussing Section 1630.2(j)(4)) (Mar. 25, 2011), www.gpo.gov/fdsys/pkg/CFR-2013-title29-vol4/pdf/CFR-2013-title29-vol4-part1630-app-id986.pdf.

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;⁵⁸and
Tests are appropriately administered by trained personnel.⁵⁹

⁵⁴ 34 C.F.R. § 104.35(b).

⁵⁵ 34 C.F.R. § 104.35(b)(2).

⁵⁶ Id.

⁵⁷ 34 C.F.R. § 104.35(b)(3).

⁵⁸ 34 C.F.R. § 104.35(b)(1).

⁵⁹ Id.

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

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.

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.

⁷³ 34 C.F.R. § 104.35(c).

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

⁷⁴ 34 C.F.R. § 104.35(d). A reevaluation procedure consistent with the IDEA is one means of meeting this Section 504 requirement.

⁷⁵ 34 C.F.R. § 104.35(a).

⁷⁶ Id. That an exclusion from an educational program for more than 10 consecutive school days is a significant change in placement is in accord with a U.S. Supreme Court decision interpreting the law that preceded the IDEA and a U.S. Supreme Court decision under the 14th Amendment to the U.S. Constitution. The Supreme Court ruled that a suspension of more than 10 days constitutes a change of placement under the law that preceded the IDEA. Honig v. Doe, 484 U.S. 305, 325 n.8, 328-29 n.11 (1988). Also see the IDEA regulations, which provide that disciplinary removals from a child’s current placement for more than 10 consecutive school days, or a series of removals that cumulate to more than 10 school days and constitute a pattern of removal, are considered a change of placement and trigger a variety of safeguards under the IDEA. 34 C.F.R. §§ 300.536(a), 300.530 see also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 30) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.

⁷⁷ 34 C.F.R. § 104.35(a); see OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 30) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html. Under Section 504, OCR’s determination of whether a series of exclusions creates a pattern of removal is made on a case-by-case basis, and may include consideration of several factors including the length of each removal, the proximity of the removals to each other, and the total amount of time the child is excluded from school. See also 34 C.F.R. § 300.536 (IDEA regulations).

⁷⁸ 34 C.F.R. § 104.35(a); see also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 30) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.

⁷⁹ See 34 C.F.R. § 104.35. See generally 34 C.F.R. §§ 104.4, 104.32-36; OCR, Dear Colleague Letter: Charter Schools (May 14, 2014), www.ed.gov/ocr/letters/colleague-201405-charter.pdf. See also 34 C.F.R. § 300.530(e)-(f) (IDEA regulations).

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

⁸⁰ 34 C.F.R. § 104.35(a). As noted previously, see supra, note 77, 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.

⁸¹ 34 C.F.R. § 104.35(a).

Additional Considerations for Placement and Services Under Section 504

Students who are identified as having a disability and needing special education and/or related aids and services are entitled to special education and a broad range of supplemental and related aids and services, as needed, such as tutors, note-takers, or one-on-one aides; assistive technology, psychological and counseling services; or speech or occupational therapy.⁸²

To the extent that services and aids, or changes to policies and procedures (for example, allowing testing accommodations such as extended time for exams) for a student with a disability can be implemented by a student’s regular education teacher, the regular education teacher is responsible for implementing them.⁸³

For example, a regular education teacher may need to provide a student with a disability an outline of the teacher’s lecture, permit the student to sit in the front of the classroom, or allow the student to turn in homework late.

However, the school district is ultimately responsible for ensuring there are sufficient qualified personnel available to provide the supplemental and related aids and services.⁸⁴

Students with disabilities must be educated with students who do not have disabilities to the maximum extent appropriate to the needs of the student with a disability.⁸⁵ In addition, school districts must place students with disabilities in the regular education environment unless the school district demonstrates that educating the student with a disability in the regular education environment with the use of supplementary aids and services cannot be achieved satisfactorily.⁸⁶ In implementing the decision of a group of knowledgeable persons to place a student in a setting other than the regular educational environment, the school must take into account the proximity of the alternate setting to the student’s home.⁸⁷

To meet the requirements of FAPE, school districts, implementing the placement decision made by a group of knowledgeable persons, may place a student with a disability in, or refer such student to, a program not operated by the school district.⁸⁸ Nevertheless, the school district remains responsible for ensuring that the education offered is an appropriate education, as defined in the Section 504 regulation.⁸⁹ In addition, the school district cannot require the parent to pay the financial obligations (for example, tuition, the cost of room and board and non-medical care in a program that is away from home) associated with the placement.⁹⁰ Transportation must also be provided at no greater cost than would be incurred if the student were placed in the home district.⁹¹ (Of course, if transportation is a related service for a particular student with a disability, the school district cannot charge the student for that transportation.⁹²)

If, to provide FAPE, a school district places a student with a disability in a private school, then the school district is required to pay for the private school. However, if a school district makes FAPE available and the student’s parents choose to place the child in a private school, the school district is not required to pay for the student’s education in the private school.⁹³ Disagreements between parents or guardians and the school district regarding whether the school district has made FAPE available, or regarding the question of financial responsibility for services in the private school, are subject to Section 504’s due process procedures.⁹⁴

School districts must make decisions regarding the needs and placement of a student with a disability on an individual basis, rather than on presumptions or stereotypes regarding persons with disabilities or classes of such persons, or based on concerns about the costs of providing the related aids or services.⁹⁵

For example, it would be a violation of Section 504 for a school district to have a policy that every student with autism, regardless of the severity of the disability, must attend a separate school designed primarily for students with autism.⁹⁶ However, a school district can implement the decision of a group of knowledgeable persons to place a student with a disability in a separate class or school if the student with a disability’s needs are such that he or she cannot be satisfactorily educated within the regular educational environment even with supplementary aids and services.⁹⁷

When a student with a disability transfers to a new school district, the receiving district has a responsibility to ensure it meets the student’s disability-based needs.⁹⁸ In determining how to meet those needs, the receiving district must draw upon information from a variety of sources, which would include past evaluations and past Section 504 plans and IEPs.⁹⁹

If the student has a current Section 504 plan from the former school and, after reviewing the plan, the receiving school believes the plan provides FAPE, there is nothing in Section 504 that prohibits the new school from adopting the plan for the student. In addition, if upon review of the plan from the former school, the receiving school determines additional evaluation is necessary or that the plan needs to be revised, there is nothing in Section 504 that prohibits the new school from implementing the current plan while it conducts the evaluation and develops a new plan.¹⁰⁰

⁸² 34 C.F.R. § 104.33.

⁸³ 34 C.F.R. § 104.34(a).

⁸⁴ 34 C.F.R. § 104.33.

⁸⁵ 34 C.F.R. § 104.34(a).

⁸⁶ Id.

⁸⁷ Id.

⁸⁸ 34 C.F.R. § 104.33(b)(3).

⁸⁹ Id.

⁹⁰ Id.

⁹¹ 34 C.F.R. § 104.33(c)(1)-(3).

⁹² 34 C.F.R. § 104.33(c).

⁹³ 34 C.F.R. § 104.33(c)(4).

⁹⁴ Id.

⁹⁵ 34 C.F.R. §§ 104.33(b), 104.35.

⁹⁶ 34 C.F.R. §§ 104.4, 104.34(a).

⁹⁷ 34 C.F.R. § 104.34(a).

⁹⁸ 34 C.F.R. §§ 104.33-104.36.

⁹⁹ 34 C.F.R. § 104.35(c). See also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 38) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.

¹⁰⁰ Id.

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