Does My Child Qualify for a 504 Plan?

 

Section 504 of the Rehabilitation Act of 1973 (“Section 504”) is a federal anti-discrimination law that protects persons with disabilities of all ages – not just kids. Section 504 prohibits any program or activity that receives federal money from discriminating against individuals with disabilities.  Since public school districts and charter schools receive federal funds, they must comply with Section 504 and must ensure that students with disabilities have equal access to their programs.  A student who meets Section 504’s definition of an “individual with a disability” will receive a 504 Accommodation Plan (“504 Plan”) from his/her school that provides the child with accommodations to eliminate barriers so that the student can fully participate at school.

Who qualifies for a 504 Plan?  Section 504 defines an “individual with a disability” broadly as  “Any person who (1) has a physical or mental impairment which substantially limits one or more of such person’s major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”  What does this mean?  To understand whether your child qualifies under this definition, it is helpful to breakdown the key terms used – that is, “impairment,” “substantially limits,” and “major life activity.”

First, how do you know if your child has a qualifying “impairment”? Congress did not give an exhaustive list of list of conditions or disorders that may qualify as impairments, since this would be an impossibly long list.  Individual, case-by-case determinations should be made.  However, Congress did say that generally, an “impairment” is defined 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.

[emphasis added].  Again, this list is not exhaustive, and schools should determine whether students have “impairments” that would qualify them for a 504 Plan on a case-by-case basis.

Second, how do you know if your child’s impairment “substantially limits” your child?  Again, Congress has not given a specific definition for what it means to be substantially limited.  The United States Department of Education’s Office for Civil Rights (“OCR”) oversees enforcement of Section 504 and provides guidance on how to understand Section 504’s requirements.  According to OCR, “[t]he determination of substantial limitation must be made on a case-by-case basis with respect to each individual student. The Section 504 regulatory provision at 34 C.F.R. 104.35 (c) requires that a group of knowledgeable persons draw upon information from a variety of sources in making this determination.”  Thus, the team at your child’s school should consider information about your child and his/her disability from a variety of sources (such as doctors, teachers, family members, other agency representatives who work with your child) in determining whether your child is “substantially limited” by their impairment.

Finally, how do you know if your child’s impairment substantially limits them in a “major life activity”?  Congress has provided many examples of major life activities, but the provided list is not exhaustive.  An activity or function not listed can still be a major life activity, so individual, case-by-case determinations should be made.  The following are the examples that Congress has provided of “major life activities”:

 

• Caring for one’s self
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Communicating
• Breathing
• Standing
• Lifting
• Speaking
• Reading
• Learning
• Concentrating
• Thinking
• Working
• Bending

 

Note that “learning” is on the list of major life activities.  However, Section 504 does not require that the child’s educational performance be adversely affected, so even if your child is getting good grades, he/she may qualify for a 504 Plan if he/she is substantially limited in some other major life activity at school.

Overall, Section 504 covers a much broader range of students with disabilities than the Individuals with Disabilities Education Act (“IDEA”) (which governs IEPs).  Therefore, a child may qualify for a 504 Plan, but may not qualify for an IEP.  In addition. there are many other important differences between 504 Plans and IEPs that parents should be aware of.  For more information, please visit www.mcandrewslaw.com or call (302) 380-4975.  The information within this article is not, nor is it intended to be, legal advice.  You should consult with an attorney for individual advice regarding your own situation.