SECTION 504:  A Primer on the Law and New Guidance From OCR

By Attorney Tess O’Brien-Heinzen*, Renning Lewis & Lacy, s.c.

The Law

Section 504 of the Rehabilitation Act of 1973 (Section 504), which is implemented and enforced by the United States Department of Education’s Office for Civil Rights (OCR), is a Federal civil rights law that prohibits public school districts from discriminating against students with disabilities in their educational programs and activities. Section 504 requires districts to provide FAPE to students with disabilities to ensure they have the same access to a district’s programs and activities as peers without disabilities.  

A student with a disability is a student who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Eligibility under Section 504 turns on whether the physical or mental impairment results in a substantial limitation of one or more major life activities including functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  Federal regulations identify impairments which will, in virtually all cases, result in a determination of eligibility under Section 504:  deafness, blindness, intellectual disability, missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy, multiple sclerosis, HIV, major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia.  In addition, OCR has stated that it will presume, unless there is evidence to the contrary, that a student with a diagnosis of ADHD is substantially limited in one or more major life activities and therefore eligible under Section 504.

To provide FAPE to students eligible under Section 504, districts must provide accommodations, modifications to policies and procedures, and services that meet the student’s individual educational needs as adequately as the needs of students without disabilities are met. See, 34 C.F.R. §§ 104.33(b)(1), 104.34 (educational setting), 104.35 (evaluation and placement), 104.36 (procedural safeguards). In doing so, districts generally develop what is referred to as a “504 Plan” which identifies specific services a student needs, who will provide the services, how they will be provided, and the setting in which a student will receive the services. 

New Guidance

OCR recently released several new resources on Section 504 addressing asthma, diabetes, food allergies, and GERD. With respect to each, OCR notes that a district may always accept that a student has a disability without any documentation or medical tests. In addition, if a district violates Section 504, it may be required to provide corrective action including offering the student an opportunity to re-take classes, tests, or assignments with appropriate modifications if needed, and without penalty or negative consequence to the student; excuse absences incurred and correct student records regarding unexcused absences; and/or train faculty and staff on the rights of students with disabilities. 

Each disability recently addressed is discussed below.

Asthma

Asthma can substantially limit the operation of the respiratory system and a student’s breathing, causing a student to be absent, experience isolation from peers, endure stress, and have an asthma attack. Students with asthma may require a school to provide modifications such as: permitting a student to carry and self-administer quick-relief medication through an inhaler or otherwise; excusing a student from activities that risk triggering an asthma attack; ensuring the educational environment is free of a student’s asthma triggers, including during field trips and extra-curricular activities where possible; and/or allowing the student to make up work, without penalty, and excusing late arrivals and absences when they miss class due to a medical appointment or when asthma hinders a student’s ability to complete their work.

Diabetes

Diabetes will, in virtually all cases, substantially limit the operation of the endocrine system and can also affect a student’s eating, ability to care for themselves, thinking, communicating, concentrating, and reading, which are all major life activities under Section 504. Districts may need to: allow a student to eat a snack or a source of fast-acting sugar (such as candy) during instruction, or go to lunch early or late; allow a student to carry the emergency medication glucagon and carry and self-administer other medications, such as insulin; train school staff on how to assist with diabetes care; allow a student to reschedule an exam if their blood sugar is high, and pause the clock if they experience low blood sugar during an exam; allow a student to make up work, without penalty, and excuse late arrivals and absences when they miss class due to a medical appointment or when high or low blood sugar hinders a student’s ability to complete their work; and/or allow a student to leave class to use the restroom as needed.

Food Allergies

Food allergies can substantially limit the operation of the respiratory or gastrointestinal systems, and affect a student’s eating, breathing or ability to concentrate, all major bodily functions under Section 504. Districts may need to: designate allergy-free eating areas such as peanut-free tables, and provide clearly labeled, dairy-free, or other allergen-free food options in school cafeterias, dining halls, and at school events; prohibit certain foods in classrooms and/or school buildings, and provide notice to students and families about all food allergy-related rules; ensure eating and learning environments are free of food allergens, including during field trips and extra-curricular activities where possible, by, for example, wiping down tables, chairs, and other surfaces before use by the student; permit students to carry and use an epinephrine auto-injector at school and during school-related events; store epinephrine and train staff on how and when to use it; and/or allow a student to make up work, without penalty, and excuse late arrivals and absences when a student misses class due to a medical appointment or when food allergies hinder a student’s ability to complete their work.

GER or GERD

Gastroesophageal reflux (GER) or gastroesophageal reflux disease (GERD) can substantially limit the operation of the digestive system, which is a major bodily function under Section 504. Districts may need to: allow a student to eat snacks during instruction or go to lunch early or late; grant periodic requests by students or parents for distance learning or the provision of necessary instructional materials for use at home when GER- or GERD-related symptoms intensify, making it difficult for a student to leave home; allow a student to make up work, without penalty, and excusing late arrivals and absences when they miss class due to a medical appointment or when GER or GERD hinder a student’s ability to complete their work; and/or  allow a student to leave class to use the restroom as needed.

What Districts Should Do Now

While the U.S. Department of Education announced in 2022 that it would be updating the Section 504 regulations and releasing them in August 2023, no proposed rules have been released to date. 

To ensure compliance with existing regulations now, administrators should review policies to ensure they provide a process for identifying, referring, evaluating, and determining student needs and provide procedural due process protections to eligible students. In addition, administrators should ensure staff are trained on eligibility under Section 504 and understand that an impairment does not have to affect learning for a student to be eligible and receive accommodations in school. Finally, because the obligations under Section 504 often fall on regular education staff, it is critical for school leaders to ensure that teachers, aides, and all support staff understand the obligation to provide needed modifications, accommodations, and services with fidelity. 

*The views expressed herein are exclusively those of Attorney Tess O’Brien-Heinzen.  AWSA appreciates Tess’ continued support of AWSA by sharing her legal expertise with our members through articles and presentations. This article was designed to provide general authoritative information and commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic.  You may also direct your Level I legal questions to Malina Piontek at 608-497-3037 or [email protected].