Section 504 and the ADA
Framework (What’s Required):
Section 504 of the Rehabilitation Act of 1973 provides that ―No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance... Authority: 20 U.S.C. 794
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation. The current text of the ADA includes changes made by the ADA Amendments Act of 2008 (P.L. 110-325), which became effective on January 1, 2009.
- 15 school days from request to parent response to the request (consent or letter of decision not to test)
- 45 school days from signed consent to finalized evaluation
- 30 calendar days from finalized evaluation to Section 504 meeting
Methods (What We Do):
A student can be referred for a Section 504/ADA evaluation by the parent or school personnel. All parent requests and school referrals for Section 504/ADA support are facilitated by the campus Intervention Assistance Team (IAT). To be eligible under Section 504/ADA, a student must meet the following criteria:
- Have a physical or mental impairment which substantially limits one or more major life activities;
- Have a record of such an impairment; or
- Is regarded as having such an impairment.
As used in paragraph (1) of this section, the phrase:
- (a) Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or 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; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
- (b) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
- (c) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
- (d) Is regarded as having an impairment means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.
Once a student is determined eligible for Section 504/ADA, accommodations may be provided, if needed, to mitigate the student’s impairment so that the student can participate in academic and extra-curricular activities. In determining the need to develop a 504 service plan, the mere fact that a student has a "record of" or is "regarded as" disabled is insufficient, in itself, to trigger those Section 504 protections that require the provision of a free appropriate public education (FAPE). A student must actually have an impairment that substantially limits a major life activity to be entitled to FAPE.
HISD is committed to providing reasonable accommodations that may be needed by students with disabilities in all its programs and activities in order to ensure that students with disabilities have an equal opportunity to participate. Those additional programs and activities include non-academic activities such as recess, extra-curricular clubs, teams, and sports.
When an accommodation for a student with a disability is requested, district staff must make an individualized determination about whether the provision of a reasonable accommodation to the student is necessary to ensure that the student receives an equal opportunity to participate in the program or activity. This individualized determination may, but does not require a determination by the 504 Committee. The determination does require a reasonable, timely, good-faith effort by a person or persons with the appropriate knowledge or expertise to determine whether there are reasonable modifications, aids and/or services that would provide that student with equal access to the particular activity.
In making the determination of accommodations for a student with a disability, an accommodation that would result in a fundamental alteration in the program or activity does not need to be provided. If certain accommodations would result in a fundamental alteration to the program or activity, district staff should consider alternative accommodations, but only to the extent that the alternative accommodations do not result in a fundamental alteration to the program or activity.
How much is enough information to document that a student has a disability?
The amount of information required is determined by the multi-disciplinary committee gathered to evaluate the student. The committee should include persons knowledgeable about the student, the meaning of the evaluation data, and the placement options. The committee members must determine if they have enough information to make a knowledgeable decision as to whether or not the student has a disability. The Section 504 regulatory provision at 34 C.F.R. 104.35(c) requires that school districts draw from a variety of sources in the evaluation process so that the possibility of error is minimized.
Nothing in Section 504 requires a medical assessment as a precondition to eligibility. However, if the 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.
As of January 1, 2009, school districts, in determining whether a student has a physical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using. (ie: medication)
An impairment in and of itself is not a disability. The impairment must substantially limit one or more major life activities in order to be considered a disability under Section 504.
The Section 504 regulatory provision at 34 C.F.R.104.35 (c) (3) requires that school districts ensure that the determination that a student is eligible for special education and/or related aids and services be made by a group of persons, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options. If a parent disagrees with the determination, he or she may request a due process hearing.
Due Process Rights
In the event of a disagreement between the parent/guardian and the school district in regard to the identification, evaluation, or educational placement of a disabled student, the parent/guardian has the right to an impartial hearing, with an opportunity to participate and be represented by an attorney.
Parent/guardian wishing to challenge a decision of the Section 504 Committee will need to file a written appeal with the Section 504 Coordinator within one year of the date of the Notice of Section 504 Committee decision.
Within 45 calendar days of the date of the written appeal, the district will schedule a hearing before an impartial hearing officer, provide the parent/guardian with a written Notice of Hearing with the date, time, and place for hearing, and advise them of their right to participate and be represented by an attorney. Upon good cause shown and at the discretion of the hearing officer, either party may receive a continuance of the scheduled hearing date.
The hearing will be conducted informally. The Rules of Evidence and Procedure will not apply.
The district will make an audiotape of the complete hearing. No written transcript will be required, but the parent/ guardian will be entitled to obtain a copy of the audiotape at reasonable cost. The hearing officer will render a brief written decision at the conclusion of the hearing or, if it is imperative that the decision be taken under advisement, within 15 calendar days of the hearing. No written findings of fact or conclusions of law shall be required of the hearing officer.
The person who serves as an impartial hearing officer must not be an employee of the school district and may not be related to any member of the board of trustees in a degree that would be prohibited under the Nepotism Statute.
The hearing officer need not be an attorney at law but must be familiar with the requirements of Section 504/ADA.
If the parent/guardian disagrees with the decision of the impartial hearing officer, they may seek a review of the decision by a court of competent jurisdiction.
Parent/guardian alleging that the school district has violated the provisions of Section 504/ADA may:
(1) file a complaint with the Section 504/ADA Coordinator or campus liaison, who will investigate the allegations to the extent warranted by the nature of the complaint in an effort to reach a prompt and equitable resolution; or
(2) file a complaint with the Office for Civil Rights.
The address of the Regional Office with jurisdiction in Texas is:
Marisa Smith, Regional Manager
Office for Civil Rights
Region VI 1301 Young Street, Suite 1169
Dallas, TX 75202
Customer Response Center: (800) 368-1019
Fax: (202) 619-3818
TDD: (800) 537-7697