In a recent webinar with Dave Richards and Jose Martín, they answered audience questions about Section 504.
 
Turns out, everyone has a lot of questions about Section 504.
 
Below you’ll find a few questions that came up from the audience during the webinar. Tune in to the on demand version to hear directly from Dave and Jose as they answer even more questions about this important legislation.
 

1. “The question that always comes up in our district is diagnosis. We have a student who cannot concentrate, gets in trouble due to socialization in class but we don’t have a diagnosis. Can we say that it appears that the student has ADHD?”

   Answer: A 504 committee has to substantiate its findings of impairment based on various sources of data, but the data sources do not have to include a private clinical diagnosis. If, however, there are various data sources indicating atypical impulsivity, hyperactivity, inattentiveness, then a committee can make a determination of ADHD, which is not a diagnosis, but an educational determination.

 

2. “What about a medical disability? Anxiety? Can a team determine this disability through data?”

   Answer: ADHD is primarily diagnosed, even in the medical field, through symptomatology. Physical medical conditions or more complex mental conditions like anxiety or bipolar disorder are more difficult to ascertain with mere informal data. Thus, if those conditions are suspected, schools may need to either pay for a medical evaluation or refer the child to IDEA.

 

3. “If ADHD doesn’t need a medical source to be used to establish the eligibility for 504 Plan, how is this not a suspected disability?”

   Answer: he suspicion of disability is required to trigger the school’s responsibility to offer an evaluation under Section 504 (if the school also suspects that the student needs services because of the disability). The committee can determine that the student has ADHD on the basis of data from a variety of sources, which may include medical data (but is not required to include medical data).

 

4. Schools are not supposed to diagnose, so how do you document the disability if there is not an ADHD diagnosis. Can the school record ‘data shows significant attention concerns’? How is this different than disability vs. difficulty?”

   Answer: In the Office for Civil Rights’ ADHD Resource Guide, there is reference to the school’s finding of disability without a medical diagnosis as a “determination” not as a diagnosis. We refer to it in the forms as an “educational determination.”

 

5. “If a student is unable to pass any of the 5 end-of-course assessments (EOCs), is that a good reason to refer for an full individual evaluation to Special Education?”

   Answer: It can be if the school suspects that the student has an impairment that fits one of the disability categories under IDEA and believes that the student needs specially designed instruction. Failure to pass EOCs by itself is a single source of data. I’d also be interested in knowing how the student is performing in the subject matter in class.

 

6. “I was told counselor cannot be written in the 504 Plan because all students have access to the counselor. Is that true?”

   Answer: Even if counseling is normally provided to all students as needed, if a student with a Section 504 Plan needs it, it must be set forth in the plan so that the provision of service is accorded the force of federal law. Otherwise, the student may or may not get it, and parents cannot enforce its provision.

 

7. “How should we address chronic absenteeism in students with a 504 Plan? How do expectations change in regard to truancy or do they? Many times, it is difficult to separate absences related to the disability and absences that are not. Can you still require the student to follow attendance procedures for excusal of absences?”

   Answer: If a student’s disability is known to impact attendance, it may be discriminatory to penalize the student under truancy or attendance policies. Accommodations and services in 504 Plans can assist students with disability-related attendance issues (e.g., counseling, BIP, working with parents). If it appears difficult to determine if the absences are disability-related or 504 is not working, an IDEA referral may be needed.

 

8. “Would toy guns fall under weapon exclusion?”

   Answer: It can be if the school suspects that the student has an impairment that fits one of the disability categories under IDEA and believes that the student needs specially designed instruction. Failure to pass EOCs by itself is a single source of data. I’d also be interested in knowing how the student is performing in the subject matter in class.

 

9. “For manifestation determination review (MDR) when you speak of Procedural Safeguards provided to the parent, are you referring to Procedural Safeguards explaining rights under IDEA or does 504 have Procedural Safeguards?”

   Answer: Section 504 procedural safeguards, which are more limited than IDEA rights. See 34 CFR 104.36.

 

10. “If we do yearly meetings and go over the plan with the parents and teachers, do we still need to do an evaluation every three years?”

    Answer: No. Those yearly meetings usually review current grades, statewide assessment scores, teacher observations, behavior records, and parent input, if not more. Thus, this is a review of various sources of data which is really a Section 504 reevaluation. Since you are doing these annually, you will never have to do a 3-year re-eval.

 

11. “Can students with Section 504 Plans be placed in special education classes (ie. study skills in high school taught by a special education teacher)?”

    Answer: Not if the special education teacher is special education funded and only special education kids participate in the class. That would be use of IDEA funds for non-IDEA students.

 
If you want to dive deeper and learn how Frontline can help your district navigate Section 504, check this out.



Jose Martin and Dave Richards

Jose Martín is a partner with the school law firm of Richards Lindsay & Martín, L.L.P. in Austin, Texas. His practice focuses exclusively on disabilities issues and litigation affecting the schools, including special education consulting and litigation under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. He represents dozens of public school districts in Texas, and has developed a close understanding of the day-to-day challenges faced by schools in achieving compliance with state and federal disabilities laws. He is a graduate of the University of Texas in Journalism, and the University of Texas School of Law.   David M. Richards is the General Counsel for the Council of Educators for Students with Disabilities (CESD), and a frequent speaker on disability law topics at schools, as well as regional, state, and national conferences throughout the country. Evaluations routinely report that Dave is both very informative and far too funny to be a lawyer.

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