504 and State Testing

All children with disabilities in Texas, regardless of the severity of their disabilities, who need special education and related services, must be identified, located, and evaluated, and if determined eligible, provided a free, appropriate public education to disabled students. This is called “Child Find.” Child Find is a federal mandate under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504).

Who can refer a student for consideration for evaluation under Section 504?

Anyone can refer a learner for evaluation under Section 504; however, while anyone can make a referral, such as parents or a doctor, OCR has stated in a staff memorandum that “the school district must also have reason to believe that the learner needs services under Section 504 due to a disability” (OCR Memorandum, April 29, 1993). Therefore, a school district does not have to refer or evaluate a learner under Section 504 solely upon parental request. The key to a referral is whether the school district staff suspects that the learner is suffering from a mental or physical impairment that substantially limits a major life activity, and needs either regular education with supplementary services or special education and related services [letter to Mentink, 19 IDELR 1127 (OCR) 1993]. If a parent requests a referral for evaluation, and the school district refuses, the school district must provide the parent with notice of their procedural rights under Section 504.

What information is used when evaluating under Section 504?

Under Section 504, no formalized testing is required. Schools must consider a variety of sources. A single source of information (such as a doctor’s report/diagnosis) will not be the only information considered. Schools must be able to ensure that all information submitted is documented and considered. The 504 Committee should look at grades over the past several years, teachers’ reports, information from parents or other agencies, state assessment scores or other school-administered tests, observations, discipline reports, attendance records, and health records.

Who decides whether a student is eligible for services under Section 504?

According to the federal regulations: “…placement decisions are to be made by a group of persons who are knowledgeable about the child, the meaning of the evaluation data, placement options, least restrictive environment requirements…” [34 C.F.R. §104.35(c)(3)]. In Bushland ISD, this group of knowledgeable persons is referred to as the Section 504 Committee.

Unlike Special Education, federal regulations governing Section 504 do not require parent participation as members of the decision-making committee. The inclusion of parents in the committee process is determined at the discretion of each school district. Bushland ISD values parent involvement and encourages parents to share any relevant information that may assist the Section 504 committee in understanding and addressing their student's needs, such as medical documentation, physician reports, or private evaluations. Parents are also encouraged to attend and participate in Section 504 meetings to provide input and collaborate in the planning process.

Can a student be evaluated for Section 504 without the parents’ knowledge?

No. Parents must provide consent for evaluation and be given notice before their learner is evaluated and/or placed under Section 504 (34 C.F.R. §104.36). Parents must also be given a copy of their learner’s Section 504 student services plan if the committee determines that the learner is eligible under Section 504.

How often is a learner re-evaluated?

Although there are no specific federal regulations addressing this issue, Section 504 requires that students be re-evaluated at least once every three years and whenever a significant change in placement is being considered. To ensure compliance with these requirements, Bushland ISD follows a structured re-evaluation schedule that consistently meets, and often exceeds, federal timelines for reviewing student needs and accommodations.

How does a Section 504 Committee determine eligibility for Section 504?

To determine a student's eligibility for services under Section 504, a committee of knowledgeable individuals reviews relevant information and considers the following questions:

• Does the student have a physical or mental impairment?
• Does the impairment substantially limit one or more major life activities? The committee carefully identifies the specific limitations and examines how they affect the student's educational performance, participation, and progress.
• Does the student require accommodations, supports, or services under Section 504 to ensure their educational needs are met as adequately as those of their non-disabled peers?

The committee uses this information to make an individualized determination based on the student's unique needs and circumstances.

What kinds of accommodations/services will be provided under Section 504?

Section 504 does not require a public school to provide students with disabilities with potential-maximizing education, only reasonable accommodations that give those students the same access to the benefits of a public education as all other students.” (J.D. v. Pawlet School District, 224 F.3d. 60, 33 IDELR 34 (2nd Cir. 2000)

What is a physical or mental impairment that substantially limits a major life activity?

The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made based on an individual inquiry. The Section 504 regulatory provision at 34 C.F.R. 104.3(j)(2)(i) defines a physical or mental impairment as 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 any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulatory provision does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list.

What are major life activities as defined in the Section 504 regulations?

Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. Other functions can be major life activities for purposes of Section 504. In the Amendments Act, Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a non-exhaustive list of examples of “major bodily functions” that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Are there any impairments that automatically mean that a student has a disability under Section 504?

No. An impairment in and of itself is not a disability. The impairment must substantially limit one or more major life activities to be considered a disability under Section 504.

Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE?

No. A physician’s medical diagnosis may be considered among other sources in evaluating a student with an impairment that substantially limits a major life activity. Along with the medical diagnosis, the Section 504 regulations require school districts to draw upon a variety of sources in interpreting evaluation data and making placement decisions.

Does a medical diagnosis of an illness automatically mean a student can receive services under Section 504?

No. A medical diagnosis of an illness does not automatically mean a student can receive services under Section 504. The illness must cause a substantial limitation on the student’s ability to learn or another major life activity. For example, a student who has a physical or mental impairment would not be considered a student in need of services under Section 504 if the impairment does not in any way limit the student’s ability to learn or other major life activity, or only results in some minor limitation in that regard.

How should a recipient school district handle an outside independent evaluation? Do all data brought to a multi-disciplinary committee need to be considered and given equal weight?

The results of an outside independent evaluation may be one of many sources to consider. Multi-disciplinary committees must draw from a variety of sources in the evaluation process so that the possibility of error is minimized. All significant factors related to the subject student’s learning process must be considered. These sources and factors include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior, among others. Information from all sources must be documented and considered by knowledgeable committee members. The weight of the information is determined by the committee, given the student’s individual circumstances.

A student has a disability referenced in the IDEA, but does not require special education services. Is such a student eligible for services under Section 504?

A disability referenced in the IDEA does not automatically translate to 504 eligibility. The student may be eligible for services under Section 504. The school district must determine whether the student has an impairment that substantially limits his or her ability to learn or another major life activity and, if so, make an individualized determination of the child’s educational needs for regular or special education or related aids or services. For example, such a student may receive adjustments in the regular classroom.

How should a recipient school district view a temporary impairment?

A temporary impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities for an extended period of time. The issue of whether a temporary impairment is substantial enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.

Is an impairment that is episodic or in remission a disability under Section 504?

Yes, under certain circumstances. In the Amendments Act (see FAQ 1), Congress clarified that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. A student with such an impairment is entitled to a free appropriate public education under Section 504.

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