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National Center for Learning Disablities

Section 504 updated: Greater eligibility and accommodations for students with LD, AD/HD

Learn about recent improvements made to Section 504, a civil rights law that now provides protection and accommodations to even more students with LD and/or AD/HD.

By Kristin Stanberry , Laura Kaloi, MPA

Did you know that, effective January 2009, eligibility for protection under Section 504 of the Rehabilitation Act became broader? Some students who did not qualify for Section 504 in the past, or who were not eligible for services and supports under the Individuals With Disabilities Education Act (IDEA), may now qualify for Section 504 plans. Students with such plans may now qualify for additional supports, services, auxiliary aids and/or accommodations in public schools. For many students with learning disabilities (LD) and/or AD/HD (Attention-Deficit/Hyperactivity Disorder), this is good news! These positive changes are the result of recent amendments to the Americans With Disabilities Act (ADA), a broad civil rights law that also impacts Section 504.

You’ll be especially interested in these developments if:

  • Your child was evaluated under IDEA but was found ineligible.
  • Your child was previously evaluated for Section 504 but was found ineligible.
  • Your child is currently receiving informal accommodations in school.
  • Your child has a Section 504 plan in place. (If your child has an IEP, he is automatically considered to have a 504 plan.)
  • Your child needs accommodations on the SAT or ACT.
  • Your teenager is getting ready to go college.

What’s the connection between Section 504 and the ADA?

What does the ADA Amendments Act of 2008 (ADAAA) have to do with Section 504? Both are civil rights laws that protect individuals with disabilities from discrimination. Section 504 was enacted in 1973 and applies to all programs and activities that receive federal financial assistance. This includes public schools, colleges and universities as well as certain employers, state and local government programs and places of public accommodation (such as public libraries). So the common denominator between Section 504 and the ADAAA related to school-age students is protecting students with disabilities from being discriminated against in public schools.

The ADAAA includes a conforming amendment to Section 504 of the Rehabilitation Act; meaning that the newly expanded coverage under the ADAAA also applies to Section 504. Matt Cohen, an attorney who works on behalf of children with disabilities in disputes with public schools, explains, “Because ADA and 504 are interpreted in parallel, the ADAAA will be applied to the public schools in their interpretation of both the ADAAA and Section 504.”

How things have changed with the ADAAA

Because of the ADAAA, more students may now qualify as persons with disabilities entitled to protection from discrimination based on their disabilities. They also may be eligible to receive special education or general education with related services and reasonable accommodations, including auxiliary aids and services in school, under Section 504.

The ADA Amendments Act of 2008 includes several significant changes, which also apply to Section 504:

  • The definition of “major life activities” was expanded to include learning, reading, concentrating and thinking. Also, the definition of “major bodily functions” has been expanded to include neurological and brain functions. This change makes it much easier for individuals with LD and/or AD/HD to qualify for protections under the ADAAA.
  • The ADAAA requires that the limitation on a major life activity be broadly, rather than narrowly, interpreted.
  • Conditions that are episodic or in remission are covered when they are active. For example, a student with AD/HD may be affected by his symptoms differently and at different times and under different conditions. The ADAAA does not disqualify him from protection on that basis alone.
  • Under the ADAAA a person cannot be denied protection simply because he uses a mitigating measure, such as taking medication for AD/HD or being allowed extra time when taking tests to accommodate for an LD. (The only exception to this is corrective lenses that fully correct a vision problem.)
  • Limitation in one major life activity need not impact other major life activities in order to trigger ADAAA protection. Some students with disabilities struggle in just one academic area, such as reading or writing, but excel in other skills or subjects and shine in extracurricular activities. Such students might now qualify for ADAAA protection, whereas before 2009 they would have been found ineligible because they struggled in only one major life activity.

What does this mean for your child?

Now that you have a sense of how the ADAAA affects the interpretation of Section 504, you’re probably eager to know how these changes might help your child. While every situation -– and every child -– is unique, we’ll provide answers and action steps for some of the most common questions here.

Question: My child receives informal accommodations that his teacher or other school personnel (for example, a counselor or nurse) provides. Should I request these accommodations be formalized through a 504 plan?
Answer: Yes. By documenting that your child has a disability that substantially limits a major life activity (for example, learning or concentrating), you are ensuring the legal protections provided by federal law. You’re also providing documentation that will be important in the case of transitioning to a new school or setting, a new teacher, or some other life event.

Question: My child was previously found ineligible for services under IDEA, but a 504 plan was not discussed at that time. Since the ADAAA has broadened eligibility requirements, should we reapply?
Answer: Yes, you should request a 504 evaluation if you believe your child could benefit from a 504 plan. Because of the similarities between the IDEA and Section 504 “child find” requirement to provide a free, appropriate public education, schools should begin paying particular attention to students found ineligible for services under IDEA and be willing to discuss whether accommodations under a 504 plan are appropriate for the child.

Question: My child was previously found ineligible for a 504 plan. Should we reapply?
Answer: Yes, especially if you believe the denial was directly related to the old interpretation of the law, such as finding that there was no substantial limitation of a major life activity or denial due to use of a mitigating measure such as medication.

Question: My child already has a Section 504 plan. Should I ask if he is allowed additional (or different) accommodations under the ADAAA?
Answer: Yes, if you believe that your child will benefit from additional or different reasonable accommodations, auxiliary aids, supports or services. Once your child has a 504 plan, the school should be willing to have regular discussions about the effectiveness of the plan and whether adjustments need to be made to support your child’s success.

Question: My child has been eligible for services under IDEA, and now the school is proposing to end that eligibility. Should there be a discussion about a 504 plan?
Answer: Yes. Every year about 66,000 students in special education (3%) are declassified, which means their eligibility for services and supports under IDEA is terminated. It’s very likely that many of these children need accommodations for both classroom instruction and testing in order to succeed in general education. In those cases, a Section 504 plan might provide such accommodations.

Question: My teenager has a 504 plan and will soon be taking Advanced Placement tests and/or college entrance exams. What accommodations might she be allowed to use during those exams?
Answer: This is where the ADAAA and Section 504 intersect. National testing services are required under the ADAAA to provide reasonable accommodations, and most have information on their Web sites about how to document a disability and request accommodations. However, all documentation must be prepared well in advance. You and your teen will want to talk to her high school counselor about the required paperwork and the timeline for submission to the College Board, the ACT or Education Testing Service.

Question: My teenager has a 504 plan and is applying to college. What are the most important steps in assuring she gets what she needs in the college setting?
Answer: The most important thing to teach your teenager is to advocate for herself -– to communicate what her disability is and what accommodations she needs to succeed.  Because each college establishes its own procedures based on its interpretation of the ADAAA and Section 504, it’s important to check with the college about its policies.

Federal funding and regulations

While public schools receive federal financial assistance under IDEA, they don’t receive any financial assistance to provide Section 504 plans. Schools may therefore view providing a Section 504 plan as a financial burden. Because there’s no requirement to collect data on how many students actually have 504 plans (Zirkel and Holler report in 2008 that 1.2% of students on average nationally have 504 plans), some schools and districts don’t track how many students benefit from Section 504 or the cost associated with serving those students.

The new law intends to expand eligibility and coverage; however, while new regulations are forthcoming from the Equal Employment Opportunity Commission on the ADAAA, Congress has urged the U.S. Department of Education, Office for Civil Rights (OCR) to maintain the current regulations and guidance related to Section 504. This means that parents will need to advocate for their children’s rights, and schools are obligated to ensure their current policies and practices are in full compliance with the new law.

Remain vigilant in the face of victory

While the ADAAA represents a victory for students with disabilities, you’ll want to be vigilant to ensure your child is treated fairly and appropriately. Through the ADAAA, Congress has intentionally expanded the ADA, which, in turn, broadens the interpretation of who should have access to 504 plans. Students with LD and AD/HD should directly benefit from the new law because the use of mitigating measures can no longer be the basis for denying 504 plans to students. If your child already has a 504 plan, you should work with your school’s 504 team, guidance counselor and other school personnel to make any appropriate changes.

Updated January 2010

Kristin Stanberry is a writer and editor specializing in parenting, education, and consumer health/wellness issues. Her areas of expertise include learning disabilities and AD/HD, which she wrote about extensively for Schwab Learning and GreatSchools.

 

Laura Kaloi is Director of Public Policy for the National Center for Learning Disabilities. She has spearheaded legislative initiatives focused on every major education and disability law. Laura serves on several boards and task forces for disability groups. She works extensively with the U.S. Congress and the U.S. Department of Education to ensure students with learning disabilities are fully considered in legislation and regulations.

 

Reprinted with permission from the National Center for Learning Disabilities. All rights reserved.


Comments from GreatSchools.org readers

11/1/2010:
"This site has been a great resource. Before reading all of the comments, I really felt like it was just 1moms fight for education. I have 2 boys both with A.D.H.D. The oldest graduated he is 23. School was not always easy for him. He was able to be active in sports and was able to fit in. Our youngest son, 13 has struggled since his early years in childcare, as young as 2 years old. I do feel that it is me against the school system. I want to have positive relationships with my child's teachers, and this can be a challenge when you are telling them that they are not meeting your child's needs and their 504 plan. I get mad, I get sad, I have jumped through all of the hoops that the system has asked me to do. It is still the same, empty promises. I feel that they say what you need to hear and notheing ever changes. My son has failed his core classes (math, lang. arts, and social studies) and still gets moved along, it has been that way since first grade. I feel ! that Act 60 No Child Left Behind, also should state No Child Pushed Ahead. Form 1mom to others, dont give up."
08/23/2010:
" My question is ,If anyone can help me, is can you sue the school district for civil right violations if they denied a 504 for my disabled children with chonic nerological lyme disease after Jan. 1,2009. and are still doing so. Even with doctors that specialize in the care of my children and just disregard them. Thanks, for any imput. Class action law suites anyone in florida we would be interrested."
03/1/2010:
"My child has ADHD and has had continued behavior problems in school. I was never told about the 504, IEP or the RTI that are available. Now he has been suspened facing expulsion. I want to know if these interventions are in place then why are the schools not offering them to children that are at risk. I would have never known about this had my child not been in counseling with an outside source. How is this providing a equal education opportunity for children with ADHD if the parents are not informed that these options are available?"
01/4/2010:
"My grandson is in the Pennridge school district, Perkasie PA and they say they are helping her to read, but will not implement a 504 or IEP. How can they be made to act, find a lawyer? Please, need comments!!!"
12/29/2009:
"My 12 yr old daughter currently has had a 504 plan for a year. Now all of the sudden I am told by the school principle that they (teachers) are doing to much for my daughter. Who has now became a A/B student since the 504 plan went into effect. Our county coordinator is new and did not even know what a 504 plan was before she was given the job. I need help no one can tell me what my daughter qualifies for under a 504 plan. I need a sample outline to present ."
12/7/2009:
"My son went to a very rich school, highly know for its acdemics in New York state. He did graduate, but not before having a very hard time. He was diagnosed with ADD at the age of 11,he is now 20. He was elligible for special ed, (ie. help and more time on tests and such) but was NEVER given it! I had NO support from the school what so ever! The papers from the doctors were thrown back in my face. He was repetedly suspended, and in trouble, and it was always his fault, not the other students. But he somehow got through, because I cared enough to help him. I know of other people in my situation in this and ended up pulling their kids out of the school district and paying to take them to another school district. Now my 14 yr old is having problems (but she dosent have a disability). She is currently suspended of the bus for a whole week, for not crossing the road right. In this school, it all depends on who you are, and who your sibiling are, on how you fair in school. Beleive! me, the whol town is that way. I dont want to be petty, but I have no idea where to go for help. My daughter now has no way to school, and need to know my rights. This is an ongoing problem, and I am sick of it!!!! The bus driver disobeys all the rules of driving the bus in front of the kids, but when the school is confronted with this, they pretty much say the kids are lying, or as it was put to me 'I wouldnt take much stock in what the other kids say' Could some one pleas tell me where to go for info?? Sincerly, and Thank You..."
11/6/2009:
"my child is on the 504 Plan - is the school required to perform tests WISC and others - a college wants them and the high school says they don't have to do them?"
09/14/2009:
"I found this article to be bittersweet. Disclaimer first-I do work for a school district in the area. I think it is important for parents to continue advocating for children to receive accommodations and special education if it is adversely impacting their education. However, much of this article seemed misinformed. The truth of the matter is, those students who are LD and have IEPs are automatically covered by section 504 protections...and always have been. This is not anything new. To my understanding-only one major life activity needs be affected and learning has been there well before this change was enacted-one only needs to research prior versions of this statute. IDEA and IEPs are mostly about providing specialized instruction as the result of a student being identified with one of 13 educationally disabling conditions in the Part 200 regulations and under IDEA. 504 is a civil rights statute passed in 1973 that provided that accommodations must be in place if an individual has an impairment that manifests a significant life limitation (such as learning) and that limitation would be manifest unless reasonable accommodations are presented (such as extended time to take tests, reducing distractions for ADHD students, etc.) The biggest change that the recent passage has brought on is the mitigating measures-the author here is correct. I also agree with the author that parents who think a disability or impairment is affecting a child, regardless of prior determination, should ask for a reevaluation of their child. IDEA and 504 can be very confusing laws for those not specifically schooled in them. If you have questions-check the Wrightslaw page at http://www.wrightslaw.com and you will likely find many answers that you are looking for."
08/19/2009:
"School wants to declassify 8th grade son from 504 & dyslexic to just dyslexic. Said the district has reviewed their guidelines & doesn't feel he is impaired enough to warrant 504 anymore. Sd the district routinely classified dyslexic & 504 together so there are supposedly LOTS & LOTS of students who w/b declassified this yr. (as if that will make me feel better!!??) Also my son passed the TAKS & his grades were decent A's, B's & C's so the counselor doesn't see the 'need' for the 504.This def affects his learning although his grades in math/eng are 77/84. He receives private tutoring in reading/Math since the summer of 2nd grade. He passed the TAKS reading OK & math barely. Was also told that he does not benefit from 504 anyway so why have the extra label on him..also was told all his accomodations w/b provided to him under his dyslexic label anyways. Please advise what I need to do if anything? How will being or not being 504 in High school/college affect him? "
07/21/2009:
"my son has dyslexia and ADD at low level and i worked for three years for him help. he was special ed tested every year and passed but they dont test for this disability. why i dont understand. after getting him on a list for months he was tested from a outside source we found it. after 3 years of struggle and him repeating 2nd grade ( that he would have not had to if school would have tested for this when i asked in 1st grade. also after he had several friends make fun of him and still will not talk to him.) at the end of this past year he recieved help in time to pass. we are about to start a new year and i'm greatful for all the staff at his school for putting up with me and my driven ways. just goes to show never give up on a child and maybe others in our area will recieve help he is the first in his school. the school and i will continue to work hand and hand. "
07/16/2009:
"My daughter has been on a 504 for 4 years. The school (new school/new district) has requested that we have her re-tested at Children's Hospital Learning Services department to confirm that she still has a LD. Since this is something my insurance only covered once, I hesitate to follow through with this. Is re-evaluation by a medical facility something a school can request? Would they be responsible for the testing fees? It is time for us to review my daughters 504, what, if anything should I tell thethe school? Her original diagnosis is Dyslexia, slow processing speed and low phonemic awareness. Even though we have had remedial intervention (at our expense) and she has shown improvement, she is not cured and still struggles, especially with spelling and writing. I have also been told that once a student is on a 504, that it can never be taken away. The school seems to believe that it can. What is correct? Thank you for your input and advice. Janet Malerich"
07/16/2009:
"While 504 plans are very helpful and necessary, parents should also be aware that accommodations are not a sufficient substitute for actual skills. Some students are given accommodations but not instruction in basic skills which would support their learning and become so wedded to those accommodations that they are in fact hampered by dependence on them. A balance between appropriate instruction and accommodations which allow LD students to fully participate in an intellectual life is a worthwhile goal. "
07/16/2009:
"my son was a classified infant and pre-schooler with a disability...adhd, speech, o/t, p/t... upon entering kindergarten he was declassified in third grade he was found to need accomodations and granted a 504 plan my school distric claims this entitles him o test mods and classroom accomodations but not related services true????????????????????"
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