What is Section 504?

Section 504 is part of the federal Rehabilitation Act of 1973, which was enacted by Congress to combat discrimination against individuals with disabilities in services, programs and activities administered by any entity that receives federal funds, including public schools.  Section 504 states in pertinent part:

No otherwise qualified individual with a disability in the United States…shall, solely by reason of his or her disability, 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….

The ADA and the New Hampshire Law Against Discrimination Also Prohibit Disability-Based Discrimination

     The Americans with Disabilities Act (“ADA”) also prohibits discrimination based on disability, but it is broader and applies to all public entities (including schools), whether or not they receive federal funds. The ADA also prohibits disability-based discrimination in employment by employers (public or private) with 15 or more employees, as well as in places of “public accommodations” such as stores, hotels, restaurants, day care centers, and private non-religious schools.  The New Hampshire Law Against Discrimination also prohibits disability-based discrimination in a variety of contexts, including employment and educational programs and activities.

Is Section 504 a Special Education Law?

     No.  While all special education students who qualify for services under federal and state special education laws (i.e., the Individuals with Disabilities Education Act or IDEA) may also qualify for services under Section 504, Section 504 students are not necessarily covered by special education laws.  To qualify for special education, there must be evaluations and observations showing that the student has one of a number of specific, listed disabilities; that the student’s condition has an adverse effect on his/her educational performance; and that the student requires specialized instruction to ensure a free appropriate public education (FAPE).  To be eligible under Section 504, a student must demonstrate that he/she is a qualified individual with a disability under standards that are different from special education students.  Students eligible under Section 504 often require some type of accommodation or related aids and services that are necessary for the child to access his or her educational program, to be provided with an equal educational opportunity, and to gain access to a free appropriate public education.  Generally speaking, students who qualify only under Section 504 will not be receiving direct instructional services of a specialized nature and, in many cases, their related aids and services are provided in a regular education setting.  Students with disabilities who require specialized instruction because of that disability will more often be served through special education.

Which Students Qualify for Coverage Under Section 504?

     Section 504 and the ADA provide specific protections for “qualified individuals with a disability.”  There are three categories that may qualify someone as an “individual with a disability.”  These are:

1) A person who has a physical or mental impairment which substantially

    limits one or more major life activities;

       2) A person who has a record of such an impairment; or

       3) A person who is regarded as having such impairment.

     Most of the student situations that schools encounter involve students with actual current impairments that substantially limit a major life activity.  These students may need specific services and accommodations in order to access the school program, but it may occasionally also be true that an eligible child under Section 504 is not in need of any interventions at the present time.  Protection under the second and third categories listed above generally does not require providing special accommodations or services.  Instead, the second and third categories generally protect against negative, discriminatory actions by the school or school officials.

     For a student to be identified under Section 504, in most circumstances the school must conclude that the child has: (1) a physical or mental impairment that (2) substantially limits (3) a major activity.  Each of these three concepts is briefly discussed below.

Physical or Mental Impairments

     The regulations define “physical or mental impairments” through examples.  Physical impairments include “any physiological disorder or condition, somatic disfigurement, or anatomical loss affecting one or more” listed body systems.  These include neurological, musculoskeletal, special sense organs, respiratory or speech, cardiovascular, reproductive, digestive, genito-urinary, hemic/lymphatic, skin and endocrine body systems.  Mental impairments are “any mental or psychological disorder.”  The identification categories in the DSM-IV Psychological Manual can be a useful guide to identifying mental impairments, although those categories are not legally binding.

     For a physical or mental impairment to substantially limit a major life activity, the impairment should limit that activity to an ample or considerable degree.  It should be more than a minor limitation.  Generally, the substantial limitation should be expected to last more than six months in length.  The substantial limitation should be in comparison to the average student in the general population.  Conditions that are episodic or in remission still might qualify, as long as they substantially limit a major life activity when active.  An impairment often will be viewed as substantially limiting when the student is:

(i)   Unable to perform a major life activity that the average person in the general population can perform; or

(ii)  Substantially 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 that same major life activity.

    The following factors may be useful in making the determination:

a)              The nature and severity of the impairment;

b)              The duration or expected duration of the impairment; and

c)               The permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.

     Section 504 and the ADA state that when determining whether an impairment is substantially limiting, the beneficial effects of any “mitigating measures” the student may be receiving or could receive should be ignored.  The law defines “mitigating measures” to be factored out of the eligibility decision as including: 

(i)              Medication; medical supplies, equipment, or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics including limbs and devices; hearing aids and cochlear implants or other implantable hearing devices; mobility devices; or oxygen equipment and supplies;

(ii)             Use of assistive technology;

(iii)            Reasonable accommodations or auxiliary aids or services; or

(iv)           Learned behavioral or adaptive neurological modifications.

     Thus, if a student seems fine as a result of some medication, accommodation or assistive technology the student receives, but without it he or she would be substantially limited in a major life activity, the student will likely be a qualified person with a disability under Section 504 and the ADA.  Please note that if the impairment is well controlled by virtue of some mitigating measure, the student may not need any interventions and supports in a 504 Plan, even though the student is considered disabled under the law.  As a general matter, typical supports or interventions provided by regular education teachers to any student in the classroom, whether or not the student has a disability, are not considered a “mitigating measure.”

“Major Life Activities”

     Major life activities are defined as activities considered important to daily life.  The law includes a long list of major life activities, but it is not exclusive.  The listed categories are:

1)   Caring for oneself;

2)   Performing manual tasks;

3)   Seeing;

4)   Hearing;

5)   Eating;

6)   Sleeping;

7)   Walking;

8)   Standing;

9)   Lifting;

10)   Bending;

11)   Speaking;

12)   Breathing;

13)   Learning;

14)   Reading;

15)   Concentrating;

16)   Thinking;

17)   Communicating;    

18)   Working; and

19)   The operation of a major bodily function.

     The “operation of a major bodily function” at the end of the list above includes, but is not limited to, the operation of the following bodily functions: 

1) Function of the immune system;

2) Normal cell growth;

3) Digestive;

4) Bowel;

5) Bladder;

6) Neurological;

7) Brain;

8) Respiratory;

9) Circulatory;

10)  Endocrine; and

11)  Reproductive function.

     Eligibility Determination Must Be Made On Case-By-Case Basis

­    In conclusion, the determination of whether a particular impairment qualifies for Section 504 protections can be complex and must be made on a case-by-case basis in accordance with district policies and procedures.  In all cases, however, there must be a physical or mental impairment that substantially limits a major life activity.