SECTION 504

Section 504 of the Rehabilitation Act of 1973 (as amended) protects the rights of people with disabilities in programs and activities that receive federal funding.

This protection is viewed as leveling the playing field to provide equal opportunity. Section 504 for students with disabilities (including those with vision impairment and blindness) when compared to students who do not have disabilities. It does this through a more complex interlocking relationship of the Individuals with Disabilities Education Act (IDEA) combined with the concept of a free appropriate public education (FAPE) that is contained in Section 504 of the Rehabilitation Act of 1973.

For those who are blind or visually impaired, additional funding for educational materials to help school districts provide a free and appropriate public education is available under the federal quota system, administered by the American Printing House through its ex-officio trustees.

Free Appropriate Public Education (FAPE) under Section 504

Section 504 provides a framework for students to succeed by providing what is called a “Free Appropriate Public Education” (also referred to as FAPE) that requires school systems to provide educational programs, needed materials and educational resources, for disabled students to help them achieve an education comparable to their peers, regardless of the severity of their disability.

Section 504 regulation defines a person with a disability as “any person who:

• has a physical or mental impairment which substantially limits one or more major life activities,
• has a record of such an impairment, or
• is regarded as having such an impairment

For blind and visually impaired students, it is important to note that the disability itself (meeting the definitions of visual impairment or blindness) qualifies the student for this funding. It does not rely on intellectual capacity. A disabled student may be “average” or even “above average” in intellect but still needs special accommodations (such as equipment, learning and testing procedures), or more intensive educational activities to achieve educational success.

In general, all school-age children who are individuals with disabilities as defined by Section 504 and IDEA are entitled to FAPE.

In addition, students with disabilities may not be excluded from participating in nonacademic services and extracurricular activities on the basis of disability. Persons with disabilities must be provided an opportunity to participate in nonacademic services that is equal to that provided to persons without disabilities. These services may include physical education and recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school, and referrals to agencies that provide assistance to persons with disabilities and employment of students.

Section 504 requires the use of evaluation and placement procedures to ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials. The establishment of due process procedures that enable parents and guardians to:

• receive required notices;
• review their child’s records; and
• challenge identification, evaluation and placement decisions.

To be appropriate, education programs for students with disabilities must be designed to meet their individual needs to the same extent that the needs of nondisabled students are met. An appropriate education may include regular or special education and related aids and services to accommodate the unique needs of individuals with disabilities. The quality of education services provided to students with disabilities must equal the quality of services provided to nondisabled students.

One way to ensure that programs meet individual needs is through the development of an individualized education program (IEP) for each student with a disability. IEPs are required for students participating in the special education programs of recipients of funding under the IDEA.

Students with disabilities may not be excluded from participating in nonacademic services and extracurricular activities on the basis of disability. Persons with disabilities must be provided an opportunity to participate in nonacademic services that is equal to that provided to persons without disabilities. These services may include physical education and recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school, and referrals to agencies that provide assistance to persons with disabilities and employment of students.

A school district must conduct or arrange for an individual evaluation at no cost to the parents before any action is taken with respect to the initial placement of a child who has a disability, or before any significant change in that placement.

Information from all sources must be documented and considered by a group of knowledgeable persons, and procedures must ensure that the student is placed with nondisabled students to the greatest extent appropriate.

Generally, an IEP is written each year and periodic reevaluation at least every three years is required under the IDEA regulations.

Recipients operating federally funded programs must provide education and related services free of charge to students with disabilities and their parents or guardians. Provision of a free education is the provision of education and related services without cost to the person with a disability or his or her parents or guardians, except for fees equally imposed on nondisabled persons or their parents or guardians.

If a recipient is unable to provide a free appropriate public education itself, the recipient may place a person with a disability in, or refer such person to, a program other than the one it operates.

The cost of the program may include tuition and other related services, such as room and board, psychological and medical services necessary for diagnostic and evaluative purposes, and adequate transportation. Funds available from any public or private source, including insurers, may be used by the recipient to meet the requirements of FAPE.

If a student is placed in a private school because a school district cannot provide an appropriate program, the financial obligations for this placement are the responsibility of the school district. However, if a school district makes available a free appropriate public education and the student’s parents or guardian 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. If a recipient school district places a student with a disability in a program that requires the student to be away from home, the recipient is responsible for the cost of room and board and nonmedical care.

To meet the requirements of FAPE, a recipient may place a student with a disability in, or refer such student to, a program not operated by the recipient school district. When this occurs, the recipient must ensure that adequate transportation is provided to and from the program at no greater personal or family cost than would be incurred if the student with a disability were placed in the school district’s program.

FAPE PROVISIONS IN THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

Part B of IDEA requires participating states to ensure that a free appropriate public education (FAPE) is made available to eligible children with disabilities in mandatory age ranges residing in the state. To be eligible, a child must be evaluated as having one or more of the disabilities listed in IDEA and determined to be in need of special education and related services. Evaluations must be conducted according to prescribed procedures. The disabilities specified in IDEA include: mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, and multiple disabilities. Additionally, states and local education agencies (LEAs) may adopt the term “developmental delay” for children aged 3 through 9 (or a subset of that age range) who are experiencing a developmental delay as defined by the state and need special education and related services.

The requirements for FAPE under IDEA are more detailed than those under Section 504. In specific instances detailed in the Section 504 regulation (for example, with respect to reevaluation procedures and the provision of an appropriate education), meeting the requirements of IDEA is one means of meeting the requirements of the Section 504 regulation.

IDEA requirements apply to states receiving financial assistance under IDEA. States must ensure that their political subdivisions that are responsible for providing or paying for the education of children with disabilities meet IDEA requirements. All states receive IDEA funds. Section 504 applies to any program or activity receiving ED financial assistance.

ADDITIONAL RESOURCES:

• IDEA is administered by ED’s Office of Special Education Programs (OSEP), a component of ED’s Office of Special Education and Rehabilitative Services (OSERS). For more information about IDEA, contact OSERS at 400 Maryland Ave. S.W., Washington, DC 20202-7100. Additional information is also available at: http://www. ed.gov/about/offices/list/osers/osep/
• If you would like more information about Section 504 and the other laws enforced by the Office for Civil Rights, about how to file a complaint, or, if you are a school or school district, about how to obtain technical assistance, contact the Enforcement Office that serves your state or jurisdiction. Contact information for these offices is at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Information about discrimination based on disability is on OCR’s Web site at http://www.ed.gov/policy/rights/guid/ocr/disability.html. For further information, please contact our Customer Service Team toll-free at 1-800-421-3481.
• US Department of Civil Rights Frequently Asked Questions on Section 504: http://www2.ed.gov/about/offices/list/ocr/504faq.html
• Fact Sheet prepared jointly by US Department of Justice and US Department of Education on communicating with students who have vision or hearing disabilities. This combines requirements of the Americans with Disabilities Act, the Individuals with Disabilities Education Act and provides clarification on the interface of these two pieces of federal legislation and accompanying regulations: http://www.ada.gov/doe_doj_eff_comm/doe_doj_eff_comm_faqs.htm
• You can also find more information about your child’s rights to an education by going to this federal website of the Office of Civil Rights within the US Department of Education regarding Section 504 of the IDEA: http://www2.ed.gov/about/offices/list/ocr/504faq.html
• The Parent Center Hub, developed by the US Department of Education, has extensive information about Section 504. Go to: http://www.parentcenterhub.org/repository/section504/
• To find your Parent Center Hub for your state, go to: http://www.parentcenterhub.org/find-your-center/
• If you have been unsuccessful in resolving complaints at the local level regarding alleged discrimination prohibited by Section 504, contact information for additional concerns and questions about appeal processes may be found at: https://www.ada.gov/cguide.htm#anchor65310
• This is a private sector website developed by attorneys who specialize in special education issues, advocacy, and training: http://www.wrightslaw.com/
• If you need additional assistance in understanding your school’s 504 plan, you may contact the Blind Children’s Fund at [email protected]