Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools
Disability.
Under Section 504, an individual with a disability (also referred to as a student with a disability in the elementary and secondary education context) is defined as a person who: (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.7
The determination of whether a student has a physical or mental impairment that substantially limits a major life activity (and therefore has a disability) must be made on a case by case basis.8 In addition, when determining if someone meets the definition of a disability, the definition must be understood to provide broad coverage of individuals.9
7 29 U.S.C. § 705(9)(B), (20)(B).
8 34 C.F.R. § 104.35.
9 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), www.ed.gov/ocr/letters/colleague-201109.html 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), www.ed.gov/ocr/docs/dcl-504faq-201109.pdf.
Regarded as having a disability.
A student could also meet the definition of an individual with a disability by being regarded as a person with a disability.29 This could mean, for example, that the student does not have any impairment, but is treated by others as having a disability.
For example, a person who does not have a physical or mental impairment that substantially limits a major life activity but who is not allowed on the soccer team because of the false belief that the student has the human immunodeficiency virus (HIV) would be regarded as having a disability.30 Note, as stated previously, although the student with HIV in this instance is not entitled to receive aids and services, the student is nevertheless protected from disability-based discrimination under Section 504’s general non-discrimination requirements.
An individual does not fall within the definition as someone regarded as having a disability if the physical or mental impairment is transitory (that is, having an actual or expected duration of six months or less) and minor.31 For example, if a person has a broken leg but is expected to fully recover within six weeks, and the injury is considered minor, that person is not regarded as a person with a disability even if others treat the person as if he or she has a disability.32
Note, while Section 504 does not require a school to take specific action if a student has a physical or mental impairment that is transitory and minor, Section 504 also does not prohibit schools from going beyond what the law requires to assist a student.
The school district could, for example, allow the student to take a bus to school, when the student with the broken leg typically walks to school, or provide a pass to allow the student to use the faculty elevator–which is typically off-limits for students–while the student uses crutches.
29 34 C.F.R. § 104.3(j)(2)(iv).
30 Department of Justice: ADA, Title II Technical Assistance Manual, II-2.6000, www.ada.gov/taman2.html#II-2.6000; 34 C.F.R. pt. 104, App. A.
31 Amendments Act § 4(e) (codified as amended at 42 U.S.C. § 12102). A transitory and minor impairment is a minor impairment with an actual or expected duration of 6 months or less. 42 U.S.C. § 12102(3)(B). An episodic impairment, on the other hand, is a disability if it would substantially limit a major life activity when active. Id. § 12102(4)(D). Neither the ADA statute nor regulation indicates a time limitation for an episodic impairment, whereas a transitory impairment is 6 months or less.
32 Impairments that are episodic in nature or in remission are different from temporary impairments. Temporary impairments could be a disability or could not be a disability, depending upon the extent of the limitation and the length of time. Impairments that are episodic in nature are in remission or are ongoing, while temporary impairments exist for a limited time span. A temporary impairment caused by an injury (for example, a broken leg) may be a covered disability under the ADA Amendments Act if it is sufficiently severe to substantially limit a major life activity. See Summers v. Altarum Institute Corp., 740 F.3d 325 (4th Cir. 2014); see also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 34) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
Physical or mental impairments.
Section 504 defines a physical or mental impairment as any
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physiological disorder or condition,
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cosmetic disfigurement, or
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anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine.10
The Section 504 definition of physical and mental impairment also includes any mental or psychological disorder.11 The definition does not include all specific diseases and conditions that may be physical or mental impairments because of the difficulty of ensuring the completeness of such a list.
10 34 C.F.R. §104.3(j)(2)(i).
11 Id.; see also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 12) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
Major life activities.
To summarize, 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).
The list of major life activities under Section 504 includes, but is not limited to, the activities listed below.12
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caring for oneself
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performing manual tasks
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seeing
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hearing
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eating
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sleeping
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walking
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standing
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lifting
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bending
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speaking
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breathing
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learning
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reading
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concentrating
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thinking
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communication
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working
Major bodily functions are also major life activities under the law, and these major bodily functions include functions of the bowel, bladder, and brain; normal cell growth; and the immune, endocrine (for example, thyroid, pituitary, and pancreas), respiratory, reproductive, circulatory, digestive, and neurological systems.13
These lists, however, do not provide every possible major life activity or bodily function; therefore, if an activity or bodily function is not listed in the Amendments Act, it might still be considered a major life activity under Section 504.14
For example, if a school provides a form with a list of major life activities to consider during an evaluation process, a student may still have a physical or mental impairment that substantially limits a major life activity even if the activity is not listed on the school’s form.
School staff should note, in particular, that a student may have a disability and be eligible for Section 504 services even if his or her disability does not limit the major life activity of learning.
Therefore, rather than considering only how an impairment affects a student’s ability to learn, school staff must also consider how the impairment affects any major life activity of the student and, if necessary, assess what is needed to ensure that students have an equal opportunity to participate in the school’s programs.15
For example: (1) a student with a visual impairment who cannot read regular print with glasses is substantially limited in the major life activity of seeing; (2) a student with an orthopedic impairment who cannot walk is substantially limited in the major life activity of walking; and (3) a student with diabetes who requires insulin injections is substantially limited in the operation of a major bodily function, the endocrine system. These students would have to be evaluated, as described in the Section 504 regulations, to determine whether they need special education and/or related services.16
School staff should note that a student may have a disability and be eligible for Section 504 services, including modifications, even if the student earns good grades.
This is because the student’s impairment may substantially limit a major life activity regardless of whether the student performs well academically, and the student may need special education or related aids and services because of this disability.17
For example, a student who has dyslexia and is 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.
12 29 U.S.C. § 705(9)(b), (20)(B); 42 U.S.C. § 12102(2)(A).
13 42 U.S.C. § 12102(2)(B).
14 42 U.S.C. § 12102(2).
15 34 C.F.R. § 104.35.
16 Id.
17 42 U.S.C. § 12102; 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, Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools (FAQ 7 & 9) (Jan. 19, 2012), www.ed.gov/ocr/docs/dcl-504faq-201109.pdf.
Mitigating measures.
When determining if a person has a disability, a school cannot consider the ameliorative effects of mitigating measures when determining how the impairment impacts the major life activities under consideration.18
For example, a student with low vision (unable to read typical size print with ordinary eyeglasses or contacts) who is able to read using a computer program that enlarges the font size of documents is still a person with a disability, even though the computer program permits the student to diminish the impact of his or her low vision and read lessons and other materials for school.
The Amendments Act provides a non-comprehensive list of mitigating measures: medications; prosthetic devices (for example, an artificial arm); assistive devices (for example, computer modifications that increase accessibility, wheelchairs, scooters, walkers, canes, and crutches); learned behavior; and adaptive neurological modifications that an individual may use to eliminate or reduce the effects of an impairment.
Note that the use of ordinary eyeglasses or contacts is the one exception to the mitigating measure rule.19 In other words, if a person’s vision is corrected with ordinary eyeglasses or contacts,20 the school may consider how the eyeglasses or contacts help the student see when making a determination about whether the student has a disability based on seeing.
You can go to page 20 for more discussion about mitigating measures.
Substantial limitation.
The determination of substantial limitation must be made on a case-by-case basis with respect to each individual student.21 Section 504 requires that, for elementary and secondary school students, a group of knowledgeable persons draw upon information from a variety of sources in making this determination.22
The group of knowledgeable persons is often called a Section 504 Team.
The Amendments Act also requires, however, that in making that determination under Section 504, the beneficial effects of mitigating measures (other than ordinary eyeglasses and contact lenses) must not be considered.23 For example, school districts must determine if a student with asthma has a disability without considering how an inhaler affects the student’s major life activities such as breathing and talking.
Episodic impairments.
If an impairment only occurs periodically (that is, it is episodic) or is in remission, it is a disability if, when in an active phase, it would substantially limit a major life activity.24 For example, a student with epilepsy is a student with a disability if, during a seizure, the student is substantially limited in a major life activity such as thinking, breathing, or neurological function. Or, a student with bipolar disorder is a person with a disability if, during manic or depressive episodes, the student is substantially limited in a major life activity such as concentrating or brain function.
24 42 U.S.C. § 12102(4)(D).
Record of a disability.
To meet the Section 504 definition of an individual with a disability, a student could also have a record of a disability.25 Having a record of a disability means that a person either has a history of a disability or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.26 For example, a person who had heart disease, cancer, or a mental illness, may have a record of a disability, but no longer have the impairment.27 An example of a misclassification is a school district that incorrectly identified a student as having a learning disability, when further testing revealed the student’s issues where caused by the need for ordinary eyeglasses and the student does not have a learning disability.
A student who has a record of a disability may or may not need special education or related aids and services. Section 504 does not obligate a school district to provide aids or services that a student does not need. But, even if a student with a disability does not need services, the student is protected from disability-based discrimination under Section 504’s general non-discrimination requirements.28
25 34 C.F.R. § 104.3(j)(2)(iii).
26 Id.
27 Department of Justice: ADA, Title II Technical Assistance Manual, II-2.5000, www.ada.gov/taman2.html#II-2.5000; 34 C.F.R. pt. 104, App. A.
28 34 C.F.R. §§ 104.4(b), 104.21-23, 104.37, 104.61 (incorporating 34 C.F.R. § 100.7(e)); see also OCR, Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools (FAQ 10 & 11) (Jan. 19, 2012), www.ed.gov/ocr/docs/dcl-504faq-201109.pdf.
Qualified individual with a disability.
Finally, in addition to satisfying the definition of an individual with a disability, a student with a disability must also be qualified for the protections of Section 504 in order to be covered under the law. For students with disabilities at the elementary and secondary level, being qualified under Section 504 is based primarily on whether the person is a certain age.
Specifically, a student with a disability is a qualified individual with a disability if the student is of an age at which: (1) students without disabilities are provided elementary and secondary educational services; or (2) it is mandatory under State law to provide elementary and secondary educational services to students with disabilities.33
A student with a disability is also a qualified individual with a disability if he or she is a student to whom a State is required to provide a free appropriate public education (FAPE) under the IDEA, another Federal education law that addresses the rights of students with disabilities.
You can go to page 40 for a discussion of the IDEA.
33 34 C.F.R. § 104.3(l)(2). See also footnote 4 (noting that this resource guide addresses students from kindergarten through 12th grade).
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