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Understanding Section 504

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Bring Clarity to Section 504

For many educators, understanding Section 504 of the Rehabilitation Act of 1973 remains difficult and raises several questions, such as:

  • What is the practical intent of this law?
  • Are Section 504 accommodation plans simply “light” IEPs? How can this law ― passed in the waning days of the Vietnam War ― apply to public school students and employees today, when the original meaning of the law was to protect disabled veterans returning from the conflict?
  • Is a free and appropriate public education (FAPE) related to Section 504?
  • Are the rights of special education and Section 504-eligible students different?
  • How is Section 504 different from the Americans with Disabilities Act (ADA), when these laws use the same terms, but appear to impose different requirements on schools?
  • How is a Section 504 plan different from an IEP?
  • Do they have different goals, different criteria?
  • How do you decide which is appropriate in a given situation?
  • Are your 504 eligibility determinations and plans compliant? How can you be sure?

John Comegno, education attorney, provides answers to these questions and other concepts of Section 504 in a series of videos below. Watch now.

A Brief History of Section 504

Understanding how disability laws in the United States, like the Rehabilitation Act of 1973, evolved helps you understand what Section 504 is and, perhaps more importantly, what it’s not.

The story of Section 504 begins in 1954, in Topeka, Kansas, with the groundbreaking and pivotal lawsuit Brown versus Board of Education. Before 1954, discrimination based on a variety of distinguishing characteristics and demographic identifiers was legal and permissible.

In Brown v. Board of Education, the U.S. Supreme Court determined that it was unconstitutional for school districts to provide differing qualities of education based on race or skin color. So-called “separate but equal” classrooms and schools were determined to be not equal at all, and deemed unconstitutional.

Brown didn’t focus on disability. The issue wasn’t dyslexia, autism, cognitive impairment, emotional disturbance, or social maladjustment ― terms that are commonly heard in special education today. Brown v. Board of Education didn’t address ADHD, diabetes, concussion, or any type of medical issues or, the educationally diagnosed difficulties that are seen in 504 today. But what’s important to understand is that the Supreme Court determined that students must be treated equally. Differing treatment was not permissible, not on any basis: all students in the U.S. were entitled to an equal and fair public education.

Brown v. Board of Education addressed the issue of “separate but not equal,” and while it was pivotal, essential and a landmark decision, discrimination on many bases continued through the 1960s and 1970s. Statistics in the early 1970s indicated that over a million students with disabilities were not educated at all, and many were institutionalized, isolated, put in state homes and other government-funded facilities.

A Shift in the Tides for Disabled Persons in the U.S.

The tides did eventually begin to shift and there was an evolution in civil rights awareness through the 1960s, with the movement finally giving voice, acknowledgment and legal standing to disabled persons. However, it took time. Disabled individuals remained unprotected by law, despite efforts in the Civil Rights Actions of the 1960s. In 1964, Senator Hubert Humphrey ― who had a grandchild diagnosed with Down Syndrome ― made an effort to include the disabled population in the Civil Rights Act in 1964. Unfortunately, his efforts failed. As a result, the lack of protections persisted, as did the isolation and marginalization of the disabled.

In 1975, the first legislation to address disabled persons with regard to the provision of service or employment in public entities was finally enacted. The Rehabilitation Act of 1973 (it took two years to be fully enacted), requires affirmative action by the federal government and its contractors, and explicitly prohibits discrimination based on disability. “Public entities” include schools, as well as other agencies.

While the Rehabilitation Act of 1973 is an unfamiliar title to many people, it continues to serve as critical legislation in public schools as well as for hundreds of federal agencies and their contractors. The legislation is more commonly known as Section 504…

Since the great majority of states do not provide Section 504 regulations, and the federal law itself does not establish clear process rules, educators today are left grappling with the practical implementation of this near 50-year-old law without clarity.

But as a disability accommodation “gatekeeper” in your school, how do you decide which accommodation vehicle to use ― IEP or Section 504 plan ― without clarity? How do you identify and follow 504-related best practices to help you determine eligibility?

Gaining a better understanding of the background of Section 504 of the Rehabilitation Act, and how that history can inform your planning for students today, can help.

What is Section 504’s Goal?

A common misunderstanding of Section 504 is that the law intends to expand rights of public school students. That, in some way similar to the Individuals with Disabilities Education Improvement Act (IDEIA), Section 504 students receive additional process and instructional rights, which make their daily education something different or something “more” than general education students. Educators need to understand that Section 504 students are general education students, and that, differently than the IDEIA, which aims to create specific, individualized learning experiences for special education students, Section 504 simply aims to ensure access to the same general education for eligible students that all public-school students are entitled to receive.

Section 504 vs. Special Education

It’s important to understand how we apply the Section 504 eligibility criteria, and how the criteria differ from the special education formula. Do we find eligibility simply when a student produces a doctor’s note? Understanding the intention of Section 504 and how it’s different from special education is crucial in compliance today. When we speak to 504’s direction, we ought to be mindful that, similar to our best practices in IDEIA which focus on individual need, process and progress, 504 also focuses on individual need ― there has to be a need. Section 504 eligibility and accommodation isn’t driven solely by a medical diagnosis.

An Important Takeaway to Help You Manage Section 504 Requirements

Practical implementation for Section 504 responsibilities is difficult because the law does not provide process rules. Unlike the process established under the IDEIA, Section 504 prohibits discrimination, but does not explain how. The law provides no definition of the decision-making body or notice and consent rules; it doesn’t identify who or how data should be collected, or set a review time period or process.

Perhaps most surprising, the law does not use the words “Section 504 Plan” even once. Because of this lack of specific guidelines, your school should rely heavily on strong internal procedures and understand and apply best practices. Arm your district staff with the relevant and current information they need to ensure access for our disabled students. In this way, our colleagues remain compliant, and together we avoid risk.

[Video Series] Core Concepts of Section 504

In this 7-part video series, education law attorney John Comegno of the Comegno Law Group demystifies 504 by walking you through the seven core concepts of successful 504 implementation and compliance that can limit your potential liability.

Learn how to address individual need, plug that need into a compliant process and make sure 504-eligible students are making progress.

Episode 1: Introduction to Core Concepts of Section 504

Do you know your history when it comes to Section 504?

In this episode, we dive into the Rehabilitation Act and the Americans with Disabilities Act (ADA) to discuss how and why they came about, what was intended in passing them, and what was not intended, from a legal perspective.

We review how the Americans with Disabilities Act tracks Section 504 — and show how several important cases and events have influenced this legislation over time.

Questions answered in this episode:

  1. What’s the goal of a 504 plan?
  2. Is compliance with 504 the same as compliance with the ADA?
  3. How do you decide if you should use a 504 plan or an IEP to address a student’s disability?



Hi, I’m John Comegno from the Comegno Law Group. Is Section 504 different than the IDEA? Is the Section 504 plan different than an IEP? Are the rights of IEP students different than the rights of Section 504 students? How are they different? Are the goals of Section 504 Rehabilitation Act of 1973 different than the goals of the Individuals with Disabilities and Education Act (IDEA)? Where’s the line? How do we decide? How do we decide which door we go in, which vehicle we use?

If those lines are unclear to you, if those lines are fuzzy, if they’re vague, if they’re gray to you and to your colleagues, you’re not alone. That question — whether 504 is the vehicle you use to address disability or whether IEP is the vehicle you use to address disability — is a question that has plagued, that has haunted, that has teased educators across the country for 40 some years. Today, we’re going to talk about the differences in these laws. We’re going to talk about where 504 came from. Understanding where disability laws evolved from aids us in understanding truly what Section 504 is and, perhaps more importantly, what it’s not. Where do we begin?

We begin, interestingly, in 1954. It’s somewhat amazing to me that it took up until 1954 for the US Supreme Court to proclaim that different, so-called separate, is not equal in public education in the United States. 1954. We look back to the forties, the thirties, the twenties, and prior to that time, discrimination based on all sorts of different distinguishing characteristics, demographic characteristics was legal, was permitted.

In Brown v. Board of Education, the US Supreme Court tells us that school districts can’t provide different based on some arbitrary demographic. In Brown, that characteristic was race, was skin color. So-called, “separate but equal,” is not equal, is illegal, is unconstitutional. Brown didn’t focus on disability. Brown didn’t focus on dyslexia, or autism, or cognitive impairment, or emotional disturbance, or social maladjustment, those kinds of terms that we hear in special education today. It didn’t focus on ADHD, it didn’t focus on diabetes, concussion, the type of medical issues or, at times, the educationally diagnosed difficulties we see in 504 today. But what’s important to understand is that the US Supreme Court in Brown told us we can’t treat different based upon an arbitrary criteria, that all students, regardless, are entitled to public education across the country. That was 1954.

In 1965, 1970, are we still discriminating? Is our country still labeling? Is our country still excluding, and isolating, and stigmatizing? Yes, it is. Statistics in the early 1970s are that over a million students not educated at all, institutionalized, isolated, put in state homes, state facilities. The doors of that local school district, the doors of that neighborhood school closed. Three and a half million warehoused, not receiving any service at all.

The US Supreme Court recently in the Endrew decision, talked about tragic stagnation. It’s in that backdrop, it’s in that climate, it’s in that context that we talk about an evolution of rights of disabled persons and students for our purposes as educators.

In 1954, the US Supreme Court said in Brown, separate is not equal, we can’t treat differently. We see, through the 1960s, an evolution in our awareness of civil rights, the civil rights movement gives a voice to disabled persons. It gives hope, gives opportunity to disabled persons. But disabled persons are not protected despite efforts in the Civil Rights Act of the 1960s. There was an effort by Senator Hubert Humphrey, incidentally, who had a grandchild diagnosed with Down Syndrome, to include disabled persons in the Civil Rights Act specifically in 1964, which failed. 1954, 1960s, early 1970s, we see still that stagnation, that isolation.

The first legislation that’s passed that addresses disabled persons with regard to the provision of service or employment in public entities is called the Rehabilitation Act of 1973. What is the Rehabilitation Act of 1973? Have you heard of it? Do you speak of it? Do you have Rehabilitation Act plans in your schools? You don’t. Because we don’t refer to this law by its name. We refer to this law by its 504th Section. The fact that we don’t even know the name of this law only underscores our lack of awareness nationally, unfortunately, about what 504 is. It’s likely that wherever you’re viewing this from, your state doesn’t even have state (504) regulations, very different than IDEA, right? So how do we understand it?

Let’s talk about what its intention was in 1973. Passage of the Rehabilitation Act was not focused on students in your schools that have physical or mental impairments that impact major life activities. It wasn’t focused on the student with the attentional difficulty, wasn’t focused on the student with a mental health difficulty that’s preventing appropriate peer relationships. It wasn’t focused on the student that may have dyslexia, that may have difficulty in processing, students who we recognize today that are likely eligible for 504 accommodation.

The goal and focus of the Rehabilitation Act was to address disabled veterans coming home from the Vietnam conflict. It was discrimination against those persons that the US Congress stepped up to prohibit. In fact, it took seven years to even have enabling regulation. It took years beyond that for public schools to see an application of 504. That may explain a lack of understanding and an awareness of what 504 is today.

What’s the goal of 504? Centrally, if we boil it down, the goal and the intention of 504 is not to change the employment experience. It wasn’t then. Today, the goal and purpose of 504 is not to change the educational experience for eligible students. In another segment we’ll talk about the eligibility criteria. Now, just focusing on intent and purpose. The intent and purpose of the Rehabilitation Act is not to change the experience for our students. In fact, it is to ensure that the experience of public education for eligible students is the same. It’s the same experience as their non-disabled peers are entitled to. And that’s because our 504 students are not special education students, they’re general education students.

We can sum up 504’s intent in four words. Thou shall not discriminate. Thou shall not treat differently. Thou shall not provide so-called separate but equal. We’ll speak later as to the impact of the difficulty. We’ll speak later, in a different segment, as to the criteria. But again, understanding what 504’s goal is — 504’s goal is to prevent disparate treatment.

Look at the meat. The meat of 504 speaks to exclusion. It speaks to denial of benefits. It speaks to disparate treatment. The language, “No otherwise qualified individual with a disability…,” and those are all terms that we’ll define in separate segments and I hope you tune into them as well. “No otherwise qualified individual with a disability shall, by reason of the disability, be excluded.” You can’t exclude, deny benefit of. You can’t provide different. You can’t deny benefit to one group of students or one individual student because they might be able to not access because of the disability. You have to accommodate or subject one to discrimination. Thou shall not discriminate. That’s the standard. Whether we’re speaking of employees, whether we’re speaking of students, 504’s mandate is a negative mandate: don’t discriminate.

504 doesn’t talk about 504 plans. 504 doesn’t define a 504 committee. 504 doesn’t even speak to the breath of accommodations that we’re expected to provide and that’s because its intention is not expand or change the experience. Its intention is to prevent discrimination, to ensure that the eligible students’ experience is the same as the general education peers. Thou shall not discriminate. Can’t treat different.

We’ve seen an evolution over time, an awareness, a growing awareness of what 504 is. And at some point, in my experience, the roads get crossed. 504 plans are looked at as IEP lights, they’re looked at as IEP juniors, they’re looked at as a step down. We should not have that perspective. We should ensure that our 504 process is a separate road than our IEP process because the goals of these laws are separate. The intention of the Rehabilitation Act is not to expand the experience, which is part of the intention of IDEA.

When we look at decisions like Board of Education v. Rowley in 1982, defining FAPE. When we look at other decisions from courts and looking at the role of parents and their participation, we may be guided by them, but we must be mindful that those decisions don’t directly address, and control, and explain what the intention is of 504.

Brown in 1954, growing awareness of the rights of disabled persons through the sixties. The Rehabilitation Act in 1973, Section 504, applied to public entities only, public employers, public schools. We see, through the 1980s, a growing awareness that disabled persons, because private employers, private entities are not specifically bound by war, fall within the purview, the ambit of the Rehabilitation Act, that there’s a need to address the rights of disabled persons in the private sector.

So, after a series of court decisions that really teed this issue up, the US Congress passes, after introduction in 1989, in 1990 the Americans with Disabilities Act, the ADA. We can look to the ADA and Section 504 as almost the same. Individuals, whether they’re students or whether they’re employees in the private sector, protected by the ADA follow the same eligibility criteria. The enforcement mechanisms between the ADA and 504 are the same.

If we look to the law of the ADA at 42 U.S. C. § 12132 and § 12133, we can see there’s a prohibition of discrimination on the basis of disability. Those persons may not be excluded, may not be subject to disparate treatment, may not be denied the benefits of programs. Sound familiar? Look familiar? It’s the identical language from the Rehabilitation Act. In fact, the enforcement mechanisms that we see under the ADA are the same as the enforcement mechanisms under the Rehabilitation Act of 1973, or Section 504.

We don’t often speak to ADA in public school because ADA relates to the private sector, principally. But you should be aware that Title II of the ADA does directly apply to public schools. So, that means we need to be aware of access. We need to be aware that access under Title II, as directly applied to public schools today, is another responsibility within our public schools. Hottest topic today Title II ADA is service animals. But we could also be speaking to the provision of service for students with allergies. We could be speaking towards accommodations we typically see in Section 504 Plans.

What’s the takeaway? What’s the lesson? Compliance with 504 is compliance with the ADA. Compliance with Section 504’s direction that we not discriminate, that we accommodate. Make sure that we follow, and we’re consistent and compliant with Title II of the ADA.

People often speak to 504’s direction as leveling the playing field. You may not be aware, but playing fields aren’t level. We ought to be speaking of access. We ought to be mindful that similar to our best practices in IDEA, focusing on need, and process, progress, when we speak to 504’s direction, 504 focuses also on individual need. We’ll be speaking in a different segment about the criteria. The criteria speaks to impact. 504’s direction that we shall not discriminate looks to the impact, looks to the need. There has to be a need. This isn’t driven solely by a diagnosis.

We can’t discriminate on the basis of that disability. How do we do that? Do we do that by developing the plan that the law requires? As I said, the law doesn’t require a plan. The law requires that we be mindful of that individual need and that we accommodate that individual need.

So again, and in summation, what is 504? 504 is civil rights legislation. 504 doesn’t expand the rights of our students, it protects the rights of our students. Let’s make sure that we’re accommodating, we’re not changing their experience but we’re enabling access, we’re preventing exclusion, we’re preventing a different experience by the provision of accommodation.

I’m John Comegno. Thank you for tuning in. Be careful out there.


Episode 2: Understanding the Section 504 Eligibility Criteria

To make informed Section 504-eligibility decisions, based on specific criteria, you need to gather high-quality 504 eligibility data.

In this video, find out which data you’ll need to make compliant 504 decisions. Learn what constitutes a physical impairment and a mental impairment — and what is meant by the term “major life activity” when determining student or staff eligibility.

Learn how important cases have shaped these criteria and definitions over time.

Questions answered in this episode:

  1. How do you follow a compliant process when determining 504 eligibility?
  2. What is meant by the term “major life activity” when determining 504 eligibility?
  3. How do learning disabilities like dyslexia factor into 504 eligibility decisions?



Understanding the Section 504 eligibility criteria. What is the eligibility criteria? What is it not? Is 504 simply, “provide a medical diagnosis begets a 504 plan?” or is it not? Hi, I’m John Comegno from the Comegno Law Group. Today, we’re going to be talking about what the criteria is, why understanding what the Section 504 eligibility criteria is is crucial to compliant delivery and implementation of Section 504’s mandate.

In other segments we’ve spoken to the difference between 504 and IEP. We’ve spoken about what 504 is. We recognized that 504 is not about expanding rights, it’s not about changing the experience, it’s not about creating educational rights, it’s about protecting educational rights.

What does that mean? How does one find themselves eligible? How is the student with the broken leg eligible, but the student with the sprained ankle not eligible? Or is the student with the sprained ankle eligible and the student with the broken leg not eligible? Is 504 eligibility focused on mental health issues? Is it focused on medical diagnosis?

The student who used to be specific learning disability (SLD) eligible for an IEP but has been declassified, no longer found eligible, do they automatically receive a 504 plan? Is the 504 plan a consolation price? We speak specifically to that issue in another segment. But the answer to these questions turns on understanding what the eligibility criteria is. 504 is not about producing a piece of paper like a medical diagnosis, like a former IEP, even like a former 504 plan and automatically receiving a new 504 plan. 504 is about preventing discrimination. It’s about enabling access through the provision of 504 reasonable accommodation. The trigger, the determinant, the decision as to how and when and why that 504 plan is required, how that individual, that student or that employee is eligible, involves an understanding of the criteria.

What is the eligibility criteria, and how does it fit in to this mandate under 504, this direction, thou shall not discriminate? Again, 504 doesn’t define the players, doesn’t define the process, doesn’t define who sits at the table, how and when and why and where. It simply says, “No otherwise qualified individual with a disability on account of that disability shall be excluded, denied benefit, treated differently.” It doesn’t come out and say, “This is the eligibility criteria.” How do we determine what the eligibility criteria is when we look to, then, what the definition of disability is?

We’ll speak later somewhat to these concepts of, “regarded as” and “record of impairment.” But for best practice purposes, for making sure that we’re compliant in how we’re implementing Section 504, we need to consider, at the table, what the definition of disability is. That definition of disability has two prongs. Those prongs need to be answered by current, objective, clear, sound data. Since we don’t have regulations that define that, that means that you, your schools, your districts, your institutions have to be consistent vertically and horizontally, and I did not just bless you.

How do we look at that definition at the elementary level? How do we answer the question of what the eligibility criteria is at the elementary level? It has to be the same at the middle. It has to be the same at the high school. Horizontally, Elementary A can’t simply accept the medical diagnosis without plugging into a criteria while Elementary B doesn’t ask the questions at all, and will evaluate through special education, but then provide a 504 plan. Over at Elementary C, they don’t even provide 504 plans. It’s a recipe for disaster. It’s a recipe for failure.

We need to recognize that there is an eligibility criteria. We need to understand what it is objectively, and we need to implement it consistently. Let’s remember what I refer to as the “Comegno, so what?” which is born out of empathy, care, consideration and love. So what? Billy’s got ADHD. So what? Johnny broke his leg. So what? Now, I’m not saying, “So what?” flippantly. What I’m saying is, “What’s the impact?” That’s the question you need to ask because the eligibility criteria focuses on impact.

Remember our key principles, our governing best practice points: need, process, progress.

What does that individual need? There is no presumptive eligibility under 504. That means that an individual that comes in with a diagnosis is not automatically entitled to a plan. It means we need to ask the questions. It means we need to recognize what the criteria is.

In another segment, we’re going to speak to otherwise qualified. Otherwise qualified is a battlefield today. Otherwise qualified is a place where many institutions can avoid 504 exposure. Otherwise qualified for our purposes right now simply means that one is able to complete the essential tasks or duties of their position regardless of accommodation when we speak to employee. Otherwise qualified for a student means that they have a right to be in our school, in our public schools, pre-K to 12. They’re of the right age and they’re in the right grade. For college, university, they’ve been accepted. Assuming that those factors apply, those individuals are otherwise qualified. Again, if you have more questions on otherwise qualified, tune in to that segment. It’s a compelling issue today.

Here, we’re going to talk beyond otherwise qualified to the eligibility criteria. What are the questions? How many prongs are there? There are two. They’re not three. They’re not four. Five is right out. Two prongs, two questions. No presumptive eligibility. No prescription blank diagnosis begets a plan. We need a yes to both of these questions. If we do not have a yes to both of these questions, then the individual is not eligible. What’s the first question? The first question is, whether or not there’s a physical or mental impairment. We’re going to define what that is. That typically is provided through medical diagnosis, but we need to ask the question of what’s the impact of that physical or mental impairment? There is a physical or mental impairment and that physical or mental impairment substantially limits one or more major life activity. There’s impact. There’s need.

504 prohibits discrimination. It prohibits discrimination and exclusion, lack of access when we consider the impact of their physical or mental impairment, physical or mental impairment which substantially limits one or more major life activity.

Let’s define those terms. Physical impairment. The feds recognized in 1973 with passage of the Rehabilitation Act and defining disability that, if they had also given to us regulations that listed every disease and condition and syndrome and disorder which equaled physical impairment, then that direction would be outdated by 1974, maybe earlier. Instead, what the feds clarified in defining what physical impairment is, and we see this in the regulations, what they did was to note all the physical systems. They note neurological, musculoskeletal, special sense organs, respiratory, cardiovascular. All the systems are noted with the conditioning language that any disease or condition, any disfigurement, any loss affecting any one or more of those body systems equals physical impairment. You know what? That’s anything because all the systems are referenced and the words “any” is used. Any means any. Any. Any issue affecting anybody system equals physical impairment.

For my purposes as a disability rights litigator, as an educator and educational law attorney, as an attorney representing primarily schools, that means that the diagnosis itself typically isn’t the issue. The issue is how current is that diagnosis? Does that diagnosis have validity? Do we have data that we’ll take us from simply the diagnosis towards the second prong? But for our purposes, physical impairment means any issue affecting any physical system.

What about mental impairment? That’s second half of the first question, physical or mental impairment. We’re up to the DSM-5 now. Any disorder listed in the DSM-5 may equal mental impairment. Cognitive impairment, brain syndrome, dystonia, oppositional defiant disorder, obsessive compulsive disorder, or attentional difficulties, somatoform disorder, anything that we may see diagnosed from the DSM may constitute a mental impairment.

What about specific learning disabilities? What about dyslexia now that we have certain normed, national definitions? What about processing difficulties? What about difficulties in computation and comprehension, those special ed-ish difficulties? Might we see those as mental impairments that might make one eligible for 504 protection? The answer is yes. We may plug in those difficulties in the first end of that criteria, just like we might plug in any other medical condition. Please don’t think that the criteria only involves medical diagnosis. It involves any physical, any mental impairment. But we need to plug in to the next prong. We need to look at substantial impairments, substantial limitation of major life activity. We’ll talk about that in a moment.

I want to talk about an interesting case before we get to there, looking at physical or mental impairment. There’s a case at a Central District of California, that case is still pending, involving Compton Unified, an area of LA that’s plagued with violence and poverty. A class of current and former students challenged, essentially, whether or not one needed to have a standalone diagnosis of physical or mental impairment in order to be considered for 504 eligibility, with the argument that, in depressed communities, the trauma experienced by members of the community, again, in a socioeconomically distressed community, one where we’ve got the plague of illegal substances, violence, issues with nutrition, issues with housing, sustenance, family structure, whether or not the impact in the so-called “complex trauma” that those individuals have been subjected to could result in so-called neurobiological effects constituting a physical or mental impairment. That trauma then substantially are limited to major life activities.

Plaintiffs allege that they were denied certain benefits of certain programs on account of how they presented, how their learning style was impacted by that trauma, how they functioned independent of one another, how they functioned with one another, how their ability to develop peer relationships, how their ability to follow relationships with authority figures was impacted, whether or not those facts could present as 504 eligibility. Interestingly, the court said yes. The court said, considering the impact of that trauma, the plaintiffs, at a minimum, had alleged sufficient claims under 504 for the case continue. Let’s keep our eyes out for a decision. Let’s pay attention to where that case goes. That’s trending. That’s current.

Our takeaway, though as we continue on in our discussion of the eligibility criteria, let’s remember, we need current, present, objective data as to physical or mental impairment in order to check off the first box of the eligibility criteria. Assuming that we have that data, we then ask the question of whether and how that physical or mental impairment substantially limits one or more major life activity.

What are the major life activities? Well, the major life activities are the major life activities, like listening to me, like watching me, like being able to focus long enough to process the information that we’re discussing in this program. Those are all major life activities. We had a list of the biggies in the beginning, in the Rehabilitation Act, back in 1973, things like, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, working and learning.

Folks, don’t fall in the hole of just learning. We should never be speaking of a 504 major life activity as only involving learning. (You may be thinking) but, we’re in a public school, all that matters is learning. We’re in a public school. Therefore, the only major life activity at play is whether or not the student is making progress, whether or not the student is learning in the classroom. That’s not entirely true because the law speaks to and the eligibility criteria speak to one or more major life activity, one or more. Learning is one, so is walking up the steps to get on a school bus, so is sitting on that school bus and developing appropriate peer relations so one could ride that bus safely to school, or climbing off that school bus, or being able to walk down the sidewalk to get into the school, or walk through the hallways, how one sees, one hears, one’s ability to attend and to focus, to comply with rules.

Federal courts have clarified that any activity one engages in routinely may constitute major life activity. Any function one performs routinely may constitute, may be considered to be, a major life activity.

So, where are we? Let’s remember the eligibility criteria for 504 is different than the eligibility criteria for IDEA. Let’s remember that there is a criteria. Let’s remember that that eligibility criteria has two prongs. It’s not just medical, it may also be so-called educational. Physical or mental impairment impact, physical or mental impairment that substantially limits one or more major life activity. We should not be finding eligibility or providing plans for students or employees for whom we do not have data that satisfies that eligibility criteria. But if we do have data that satisfies that eligibility criteria plugged in consistently, we ought to and need to develop plans that provide reasonable accommodation.

In other segments, we’re going to talk about reasonable accommodations. We’re going to talk about collecting data. We’re going to talk about how we take our understanding of a compliant criteria process and plug it into day-to-day delivery of 504 accommodation. Let’s remember, there’s an equation, there’s criteria. Physical or mental impairment, substantial limitation, major life activity.

Thank you for tuning in. Be careful out there. I’m John Comegno.


Episode 3: Unraveling the Key Concept of “Otherwise Qualified” and Its Implications

When it comes to compliance with Section 504 and the ADA, the term “otherwise qualified” has been historically challenging for education organizations to define and defend. What does it mean exactly?

In this video, update your knowledge of otherwise qualified and see why it’s such a hot topic in the landscape of litigation for education organizations.

Questions answered in this episode:

  1. What does “otherwise qualified” mean? Is it a pre-cursor to considering 504 eligibility?
  2. How can you know if a student is “otherwise qualified” to learn in the classroom?
  3. Does Section 504 require you to ignore some types of misconduct? What about bullying?



We recognize that students with certain physical or mental impairments are eligible for 504 protection. We recognize that oftentimes medical diagnosis guides that process. The parent that comes in with the prescription blank, the parent that requests testing accommodations, setting accommodations. We recognize the student who used to be eligible for IEP may be eligible for 504 today. We understand the definition of disability: physical or mental impairment substantially limiting a major life activity. What do we often lose sight of? What do we often overlook? Otherwise qualified. “No otherwise qualified individual with a disability.”

I’m John Comegno from the Comegno Law Group. In this segment, we’re going to talk about this concept of “otherwise qualified,” and you will see, you’ll hear relevant university and college cases. There are cases that come out of professional schools. There are, interestingly, cases that come out of dental schools, several. Cases that come out of medical school.

“Why, John, would we, in pre-K through 12, have interest in what’s going on in college and university?”

Let’s remember, college, university, private sector is Americans with Disabilities Act (ADA). As we’ve discussed in other segments, ADA takes the same language, uses the same language of Section 504. That means that the principles that the court is looking at are the precise, same principles you need to be considering preschool to 12th grade. The analysis that the court engages in, in “otherwise qualified,” is relevant to your employees. It’s relevant to your students. It’s relevant to your understanding of when one is otherwise qualified to receive accommodation.

Remember that language: “No otherwise qualified individual with a disability.” One must be otherwise qualified. Interestingly, when we look at the landscape of litigation over the last five years, give or take, and you’ll see the ages of these cases coming out of federal courts, this issue of otherwise qualified is a hot topic, which is why we talk about it. That’s why we have this segment for you.

The majority of those cases, although there are several that involve public-school students, pre-K to 12, the majority of these cases are in the college and university setting. But they’re relevant to you because the legal principles are the same. Terms not so hidden in 504’s disability discrimination prohibition. But terms that are often overlooked. And terms which might surprise you are fought about today. We see in many, many cases being litigated against our public schools, pre-K to 12, as well as in the higher education setting, college and university, and in the private sector employment setting, under ADA. We see disputes about whether or not individuals are otherwise qualified.

If an individual, if a person, a student or an employee, is not otherwise qualified, otherwise qualified to complete the essential tasks or duties of the position, to complete the curriculum, to do their jobs, do their work, to complete the program, then that individual, that person, that student, that employee is not eligible for 504 protection.

There is no dispute about whether that student is eligible. There’s no dispute, then, about the reasonableness of the accommodation that might be provided. There’s no dispute about whether or not the 504 Plan has been comprehensively and compliantly implemented.

We’re going to talk about a number of cases today. I know you’re excited about that. How is this issue trending? Where is it trending? What are the concepts courts are looking at? What are the issues that litigants are raising? When we talk about otherwise qualified? It’s a topic that’s hotter than you may think in our practice of 504 eligibility, in our practice of 504 implementation.

We need to keep in mind that persons have to be otherwise qualified for employee. That means they need to be able to complete the essential tasks and duties of their position before we even look at eligibility. We must be certain, in the employment process, that they can complete those functions before we have to look at eligibility.

That doesn’t mean that we can turn someone away on the basis of disability or the basis of diagnosis, because we may not. Let’s remember 504’s direction. 504’s direction is: thou shall not discriminate. However, in looking at objective, functional ability, one must be able to complete the essential tasks or duties of their position before we consider eligibility and accommodation. The same with students. Are they of the correct age? Are they properly residing? If it’s a public-school setting, if it’s college and university (setting), are they able to complete the curriculum? Do they meet your technical standards for admission? That’s what “otherwise qualified” means. Let’s remember that, that’s a precursor requirement to even looking at eligibility.

Let’s look at some cases and let’s consider some current cases today.

A case in the federal court in Massachusetts, involving Fay School. This is a student in a private boarding school, private-school setting. Student presented a diagnosis of attention deficit hyperactivity disorder, brought an action against the private school alleging disability discrimination in violation of ADA. And as we know, and as we discussed in some other segments, ADA, Title II applies to public school.

ADA’s disability discrimination prohibition is the same as 504. So even if you’re not in a private school setting, direction in these cases is relevant to you because the law is almost exactly the same.

That student, that student with attention deficit hyperactivity disorder (ADHD), alleged ADA disability discrimination violation with regard to a breach of contract arising out of that student’s withdrawal from the school for medical reasons in lieu of expulsion. On its face, perhaps the student asserts a valid claim. Climbing inside the facts of the case, the court looked to the student’s performance. The court look to the student’s disciplinary difficulties. The court concluded that the student was not otherwise qualified for protection under ADA for participation in the private boarding school’s day-student program because, as part of the requirements for that school, the school placed great emphasis on so-called honorable conduct, compliance with its disciplinary code, compliance with its expectation for everyday functioning.

It turned out that that student had over 120 disciplinary violations in less than two academic years. The student had cheated, had lied, it’s the language of the court, to his advisor. Major violations of the school’s code of conduct. Even while on final probation.

What does that mean? That means that the student was not otherwise qualified. We’re not even going to look at the ADHD. We’re not even going to look at whether or not there’s accommodation or the reasonableness of the accommodation because the student’s own performance indicated the student was not otherwise qualified to be at the school.

A case from the Third Circuit, United States Court of Appeals in 2008, Millington v. Temple University School of Dentistry. Plaintiff alleged eligibility for 504 and ADA protection on the basis of orthopedic, arthritic neurological impairments, hearing loss, irritable bowel syndrome, premenstrual dysphoric disorder, chronic migraine, chronic pain, neck sprain strain. So, we have multiple diagnoses. We have multiple difficulties. We have a student who I wouldn’t characterize necessarily as medically fragile but certainly presenting with physical and mental impairment.

Her allegations were that Temple University failed to provide reasonable accommodation in response to her request. Failed to provide appropriate extension of time to complete schoolwork and administer makeup exams and appropriate settings. Didn’t allow her to take leaves of absence.

She claimed that after certain actions, Temple dismissed her from the program of dental studies and that dismissal violated her rights under ADA and 504 because she should have been given leaves. She should’ve been given other opportunities to complete the program of studies. The court concluded that the student was not otherwise qualified. Regardless of those multiple, multiple, multiple diagnoses, her dismissal didn’t violate the ADA, didn’t violate the Rehabilitation Act because, again: performance. The student struggled academically from the inception of her studies, even before she had a physical manifestation in school, she slipped on some stairs. Before she requested accommodation.

It was fairly clear that she was not able to perform at the level expected. She was not otherwise qualified to complete the essential tasks or the curriculum. Her academic performance didn’t improve, even when the university granted various accommodation requests. The few suggestions that the university denied, the court concluded, would have fundamentally altered the nature of the school’s program and the expectation.

And let’s remember, and we’ll be speaking more specifically to this in another segment, let’s remember that 504’s direction of prohibiting discrimination does not require you to change your curricular expectations. It doesn’t require you to change the expectations that you have for an employee’s duties. What it requires is that you not discriminate as to performance, as to participation, by the provision of accommodation.

Accommodation is an adjustment. Accommodations adjust duties. They adjust how we complete duties. They adjust how one learns, they adjust how one participates in instruction, shows mastery of information and testing. Accommodations don’t change.

Here, the court’s concluding that the suggestions, the requested accommodations, weren’t accommodations, that they actually were modification requests. You are not expected to modify your standards or your expectations for students. That’s IDEA. That’s IEP, isn’t it? That’s specially designing instruction based on need. We’re not expected to do that for students under 504. We’re not expected to do that for employees.

Again, the court, here, looked at struggling academic performance over a period of years. Even when accommodations had been provided, the student’s academic performance didn’t improve. The university, the court notes, went so far as to even provide a dental assistant in clinical studies. But yet, the plaintiff still wasn’t able to complete the duties, wasn’t able to complete the curriculum. Therefore, not otherwise qualified.

Towson University. Class vs. Towson, in a case coming out of the Fourth Circuit in 2015 raises the interesting question of whether or not, under 504, we should be changing our expectations for medical clearance. Change sounds like modification. It doesn’t sound like accommodation. I bet you know where the court goes in this case.

University football player collapsed on a practice field from heat stroke with liver failure. He brought an action against the university alleging violation of rights under ADA because the university had required a medical clearance to put that student back on the field. I’m sure you can understand why. We’ve got a student who experienced a significant medical condition. We’ve got a concern about that student’s safety. We want to make sure that that student’s going to be safe. We don’t want to put that student back on the field, where the student may experience another medical crisis, collapse again, suffer from even more significant difficulty. Obviously, there would be exposure there. The simple request is for medical clearance.

Very creatively, the football player alleges, on account of diagnosis, on account of medical status, that it would be exclusion, it would be denial of benefit for the university to request the medical clearance.

The court said no. The requirement of medical clearance, physical clearance, was an essential eligibility requirement in order to determine whether one was otherwise qualified.

Think about it. Is the student otherwise qualified to learn in the classroom? Is the employee otherwise qualified to complete the essential tasks of the employment position? Is the athlete otherwise qualified to physically participate in the sport? An essential inquiry there is whether or not the individual is medically cleared. So the court dismissed the claim. The request, an objective request looking for data for medical clearance, in that circumstance was not discriminatory.

Halpern vs. Wake Forest University Health Services. A case coming out of the Fourth Circuit, United States Court of Appeals in 2012. Again in the higher ed setting here, looking at medical school provision of accommodation.

A medical school student is diagnosed with attention deficit disorder, anxiety disorder, multiple mental impairments that might present one for eligibility under 504. Student was dismissed for unprofessional behavior. The student, very importantly, did not disclose the diagnosis or make a combination request until after the dismissal. This is not a case where a student applies and is accepted and then, in a transparent way, in a proactive way, goes to the school and makes requests for accommodation and presents the diagnosis. Here we have an individual who engaged in a pattern of factual misconduct, is dismissed, and then said, “Wait a minute, you’ve discriminated against me, you’re excluding me on account of my ADD, on account of my anxiety. On account of the manifestation of my mental health impairment.”

Student brought suit, former student then brought suit, alleging dismissal was in violation of ADA and the Rehabilitation Act. The court looked at the facts.

The court concluded that the student was abusive with staff, misrepresented attendance information, missed class without permission, sought to miss and reschedule exams. The court concluded that with or without accommodation, the student was not otherwise qualified. Professionalism in the context of professional school, medical school, was an essential requirement of the program. The student could not meet that requirement regardless of accommodation.

And the court provides some interesting, instructive language, which we should consider: “A school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodation to help the student avoid engaging in misconduct. But the law does not require you, the school, to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability.” Essentially, the Rehabilitation Act and the ADA don’t obligate a school to permit a student to continue in an educational program with the hope – the hope – that, at some unknown time in the future, he might be able to satisfy essential requirements. We must be able to complete the essential requirements first.

A case out of the Fifth Circuit 2015, involving the University of Texas Health Science Center, looking at otherwise qualified, again in the context of dental school participation. A dental student commenced an action under the Rehabilitation Act and ADA, alleging failure to provide reasonable accommodation. The court dismissed the claim.

What are the facts of the case?

The student disclosed to the university that he suffered from ADD, attention deficit disorder. Faculty members had awareness that he had some limitations, but the court concluded that the faculty members’ limited awareness of the impact was not sufficient to give rise to obligations under the ADA or the Rehabilitation Act. Since the student didn’t provide the university with any specific accommodation requests or information beyond a simple diagnosis.

As we’ve discussed in other segments, looking at the criteria, looking at collecting real data, looking at plan implementation, diagnosis alone does not beget eligibility. In that case, presentation of the diagnosis itself was insufficient, was not enough.

The court concluded that, without additional information, the university did not have obligation to find eligibility and provide accommodation.

A case involving Midwestern University, 2016. Another professional school case. Plaintiff was a former medical student at Midwestern University. She became depressed, develop generalized anxiety disorder. Plaintiff alleged that she requested reasonable accommodation in light of the disabilities, but the defendant denied the request.

The court concluded that that individual, again, despite diagnosis, was not otherwise qualified because she was failing multiple classes other than the one in which she was requesting accommodations. She was not otherwise qualified to complete the curriculum. She was not otherwise qualified to satisfy program obligations and requirements, thus not protected by 504.

A difficult case coming out of the eastern district of Arkansas in 2014, involving a student, involving a high school student. The Estate of Barnwell — looks at the manifestation of mental health difficulty and the impact of bullying in a high-school setting and asks us, what responsibilities we have, what responsibilities you have, considering that the difficult reality today of harassment, intimidation and bullying. And whether or not, if we choose not to, if we elect not to, if we’re not compliant with state requirements for Harassment, Intimidation & Bullying (HIB), if we’re not progressive in implementing our own HIB rules, individuals are bullied on account of disability ― whether or not we may be exposed, you may be exposed, under 504 and ADA.

Here we have a high-school student who had Asperger’s syndrome and, unfortunately, sadly, took his own life, committed suicide, following alleged bullying. The family, the estate, brought claims against the school district alleging a number of things: alleging civil rights violations, alleging student-on-student sexual harassment. But, beyond that, and for our purposes here today, alleged discrimination under 504, because we have a disability, which might have been the subject, might’ve been a distinguishing characteristic which led to the bullying, which was part of the bullying, which then led to the student committing suicide.

What did the court conclude? The court concluded that the parents had alleged sufficient claims under certain civil rights laws including Title IX as well as the Rehabilitation Act, due to the school’s quote “deliberate indifference” to student on student disability-based harassment.

What’s the take home? The take home for us, in that case, the take home for us in most of these cases is that we need to, and I come back to three principal best practice points, whether it’s IEP, whether it’s 504: we need to be aware of individual need, we need to be aware of compliant process, we need to be aware of progress. Need, process, progress.

Here, otherwise qualified gets to need. The impact of that difficulty. Implementing our eligibility criteria. Is one able to complete our curriculum, to satisfy our curriculum? To honor our code of conduct? Is one, in the university medical school setting, able to complete that rigorous curriculum? In employment, is one able to complete their employment duties? Is one, in second, third, fourth, fifth grade, able to complete the tasks? Is one resident in our district and of the correct age? If the answer to any of those questions is no, that individual is not protected by 504. Remember that, and remember, when we have responsibility, when we do not, before hopefully avoiding litigation, but also within litigation.

Let’s remember that otherwise qualified means something. It’s a substantive element to the criteria in determining for whom we consider accommodation and who we do not. Again, I’m John Comegno from the Comegno Law Group. Thank you. Be careful out there.


Episode 4: Are We Just Talking About Medical Diagnosis? Using Data in Section 504 Decision-Making

What does “substantially limit” mean? Is the law just talking about the need for a medical diagnosis when determining 504 eligibility?

In this video, learn the legal definition and implications of “substantially limit” as it relates to Section 504 of the Rehabilitation Act. Explore which specific data points you need to consider when determining whether an impairment substantially limits a major life activity.

Shed light on the use of practical data in your Section 504 decision-making.

Questions answered in this episode:

  1. Which data do you need to make compliant 504 eligibility decisions – and where can you find it?
  2. How do you gauge the substantial limitation of the mental health impairment?
  3. What kind of 504 process standards are legally risky?



Hi, I’m John Comegno from the Comegno Law Group. In this segment, we’re going to talk about the use of real data, practical data, valid data with integrity in determining 504 eligibility, in crafting plans that work, crafting plans that are meaningful, addressing the real, substantial limitation, and impact of physical or mental impairment. And ensuring that we’re staying compliant with Section 504.

We understand what the criteria is. We understand, and, as we’ve discussed in other segments, the intent of Section 504: the why, the where, the how. How does data play in? And where does data play in? From my perspective, data plays in at the front end. Data plays in, in considering the eligibility criteria. Data plays in, in making decisions and determinations of eligibility. It also plays in and is also a determining factor in ensuring implementation and consistent implementation of 504 plans.

It also is a factor in determining continued eligibility. Do we still see substantial limitation of major life activity from physical or mental impairment, or do we not? How do we make those determinations? When do we make those determinations? Where do we receive that information? Well, let’s speak for a moment first about the process.

Section 504 as you know, does not require school-based evaluation by school psychologist, by learning consultant, by social worker. It doesn’t require you to send that student out for a medical evaluation or examination. It doesn’t require you to provide independent assessment or independent evaluation by neuro psych. What it does require, and 504’s only mandate is, that you not discriminate. That you be aware of and mindful of the impact on learning the impact on access, the impact on participation in that school environment, on account of physical or mental impairment.

What are our sources of information?

Let me ask you two important questions. Important questions that you ought to consider at the table when looking at eligibility, accommodating reasonably and determining whether or not 504 plans are being implemented. Number one: who knows our disabled students best? Their parents. But perhaps even more importantly, who knows our disabled students best educationally? Their teachers.

Since the law doesn’t require, and since, frankly, the U.S. Department of Education and your state’s Department of Education doesn’t fund your 504 efforts, were not compelled to go out and provide evaluation, secure that data, even internally assess what we’re expected to do. What we’re legally obligated to do is look at that comprehensive data we have at the table. We ought to be incorporating parents in the process. We ought to be incorporating educators in the process. We ought to be listening to, and in this segment, we’ll be talking about, the kinds of practical things we ought to take into consideration.

What are our teachers seeing? What is our nurse seeing? What are our administrators seeing, and what are they not? That input is crucial. That data is crucial to plug into our criteria, to look at the consistency of our plans, and in truly answering the question of whether or not physical or mental impairment is substantially limiting major life activity.

Our criteria, as you know, has two prongs: a physical or mental impairment that substantially limits one or more major life activity. Substantial limitation, not just affects, not just limits, not just comes up, not simply what’s noted on a piece of paper, but practically we see impact. The law doesn’t tell us the scope of that impact, the scope of that impact, the need that’s required. So I suggest to you that you consider a definition of substantial limitation that has two different definitions. Understanding what’s substantial limitation is, is crucial and considering what type, what type of data we’re going to plug it into process.

Number one: can the student, may the student, complete a major life activity or does the physical or mental impairment prevent one from engaging in a major life activity? “Can’t” or “unable” equals substantial limitation. What do I mean by that? The student who is deaf, who can’t hear. The student who is blind, they can’t see. The student with a broken leg that can’t walk, can’t run, can’t skip, can’t sit behind a desk. “Can’t” is easy, frankly. “Can’t” is very different than what I suggest is the hardest thing that you do today. The hardest thing, the hardest task that your teams, your 504 committees, your teachers engaged in the process are expected to do today, and that is, how do we gauge the substantial limitation of the mental health impairment: ADD, ADHD, dysthymia, depression, generalized anxiety disorder?

Our students present today, as you know, with more mental health diagnoses than we’ve ever seen, in more comorbidity of certain mental health diagnoses than we’ve ever seen. How do we gauge the impact? We have a piece of paper that says anxiety disorder. We have a of paper that says ADHD. We have student that’s functioning in a general ed classroom. Is the mental health impairment manifesting itself? Is it substantially limiting a major life activity? Major life activities like attending, like focusing, like completing work, like getting assignments done, like developing peer relations. Is it impacting sufficient enough to equal substantial limitation in order for that individual to be eligible, in order for us to accommodate through 504 plan? That’s the hardest thing we do today.

How do we answer that question? We answer that question primarily through observation, through functional awareness, through considering the impact, day to day, of those major life activities that might be impacted. Parents provide input. Our teachers provide crucial input, crucial data. Two definitions of substantial limitation: “can’t,” that’s second, which we’ve discussed in the context of mental health impairment, of mental health diagnosis. Whether or not the student is significantly restricted in the condition, manner or duration under which a particular life activity is being engaged.

The student has difficulties engaging others, difficulty focusing, difficulty participating. Is it difficult enough? What’s the gauge? The gauge from federal case law? The standard is a standard of average: average performance in the general population. Not average in your population, cause your average might be higher or your average might be lower. Average in the general population. Billy ADHD, in second grade, who’s having difficulty focusing, who can only focus in class and attend for six minutes. Is that average? Is it not average? That’s the question. Question as to that specific need.

When we speak to data and the use of practical data, what type of data might impact? What type of data might inform our decision-making? What is the teacher seeing or not seeing? What have the specialists seen or not seen? What impact do we have? What input do we have from other educators in that building?

What do the cases say? What do the cases say as to this concept of substantial limitation, particularly in the context of data? Well, Seventh Circuit, 2000, Branham v. Snow. Impairment need not cause utter inability, need not cause utter inability to equal substantial limitation. That means we don’t have to go to “can’t.” Again, that second definition, that second answer: is there a significant restriction?

From a case before the Tenth Circuit in 1992, involving the city of Tulsa. The statutory language requiring substantial limitation means the impairment must be significant.

A case from the Fifth Circuit, 2003, impairment that just limits or just affects is not substantial enough. When we’re peering into that classroom. When we’re looking at the completion of activities assigned by the teacher, when we’re looking at the student engaged on the athletic field in specials. When we look at that student’s compliance with our disciplinary code of conduct, do we see “just limit” or “just affect,” or do we see inability, true, consistent pattern of inability to complete that task or function? What data do we have towards that?

A very important case that comes from the District Court in 2012 asks three questions. Three interesting questions. Engaging substantial limitation in application to the data that we have at hand. Number one: what is the nature and the severity of the impairment? What major life activity is impacted? What’s the nature of it? How severe is it? Is it an impact that we see on a second-to-second basis? A minute-to-minute basis? An hour-to-hour basis? A day-to-day basis? Is it something that comes and goes? Number one.

Number two: the duration or expected duration of the impairment. Is this an issue that we likely will see remedied promptly? Billy comes in with a sprained wrist of his right hand, which is his dominant hand. He comes in on a on a Friday. Is that going to be healed by Monday? Is it going to be healed by next Friday or the following week? Is this something that we expect to go away or is this, going to the third question of that case, permanent or long term? What is the expected permanency or expected duration?

We can consider these factors, but folks, let’s remember, we can’t have bright-line standards. We can’t say that we have data that reflects. We’ve only seen this for two weeks, therefore it’s not enough. We need to see it for six weeks. We need to see it for eight weeks or six months. Those types of bright-line standards will get you in trouble because, let’s change up the facts a little bit. Let’s say Billy comes in on Friday with a sprained wrist, but he has standardized testing on Monday. That wrist difficulty is going to go away in a week but he probably needs a scribe, or he probably needs someone to assist him in completing that task the following Monday.

We need to look at the individual need and that snapshot. We need to inform our process with practical data as to impact of the difficulty in completing the major life activity. Let’s talk about some other recent cases.

A case from the District Court in New Jersey, 2014: civilian Air Force employee brings an action against the Air Force and the Department of the Air Force alleging violations of ADA, alleging violations of other federal law. Plaintiff presented with certain diagnoses: decreased memory language disfunction, mental fatigue, medical reports, noting that there is impact in the temporal lobe, that we would see symptoms involving perception difficulties and memory dysfunction.

The court said that wasn’t enough, that we’ve got a report from a physician, more than a prescription blank diagnosis, but not enough data to show impact of the difficulty in application to your school.

Student comes in with frontal lobe injury, student comes in with traumatic brain injury, student comes in and presents similarly: perception difficulties, processing difficulties. I refer often to the Comegno “So what?” which is born out of empathy and love and care. Here’s the diagnosis. When we take that diagnosis to our teachers, to our educators, are they surprised? Have they seen manifestations? What data do we have that shows impact? If we don’t have data, we don’t have eligibility.

Mills v. Temple University, 2012. University hospital employee suffers a back injury and brings claims. The court concludes that there are questions about whether or not she was disabled when she was removed, whether or not there was a good-faith effort to accommodate.

The court looked to a law from 2008: the Americans with Disabilities Act Amendment Act. Let’s be mindful, folks, as we’ve discussed, as we’ve discussed in other segments, and as you’re aware, Section 504 applies not just to our students but also to our also to our employees. We need to provide accommodation in the presence of difficulty.

Here, an individual with a back injury, an employee. It could also be a student. Under the ADAAA, 2008, the court notes that there’s a “less searching” analysis required of whether a plaintiff is substantially limited. The court cited the Equal Employment Opportunity Commission, the EEOC, in noting that the ADAAA substantial limitation standard is meant to mean something less. What does that practically mean for us today? It means we need to remain ever-vigilant to what data we have with regard to the impact of difficulty, whether it’s employee, whether it’s student. What do we know? What do we not know?

So, we’ve discussed cases. We’ve discussed and are aware that substantial limitation requires data. It requires practical implementation of data. Physical or mental impairment — what’s the impact? What type of data are we asking about? What type of data do we want to secure to plug in to those two questions of substantial limitation?

Can’t complete the task. Can’t engage in the major life activity, or significantly restricted enough. My suggestion to you with regard in particular to mental health difficulty is make objective that which is inherently subjective.

What do I mean?

It’s obvious to see Billy with a sprained wrist can’t write. It’s obvious that Jack with a broken leg can’t walk down the hallway. It’s a lot more difficult if Billy comes in with a diagnosis of ADHD or Jack comes in with a diagnosis of dysthymia or depression or generalized anxiety disorder. Let’s not get turned around with that. Let’s not get confused with that. Let’s make objective what is subjective. Let’s remember that the question here, after we’ve satisfied that there is a physical or mental impairment, the question is: what’s the impact? So let’s ask, with regard to the student with ADHD, the teacher, what’s the typical focus?

What’s the typical attention when that student is engaging in major life activities in the classroom? Is it consistent? Is it consistent with that standard of average in the general population or do we see significant restriction in the condition, manner or duration of that activity? We would expect that student, Billy ADHD, second grade, to be able to attend for six minutes. Is he only attending for three?

The student with the anxiety disorder, do we see impact on completion of activities? Let’s break down tasks, discrete, objective tasks, in the learning process, like taking notes, like focusing and attending in class, like completing in-class assignments, like completing assignments at home, like quizzes and tests and midterms and finals. Let’s break each of those out and define them as major life activities and then let’s ask teacher after teacher after teacher as to whether or not we see impact in the completion of those tasks and graph that information. Let’s graph it zero to 10 or zero to 100. Be specific in your data collection. Be specific as to how you inform this process across the curriculum.

If teachers that say, “We don’t see manifestation,” or “We don’t see impact,” that will net out to no substantial limitation. That data reflects that the ADHD, that the anxiety disorder, that the dysthymia, whatever the mental health impairment might be, is not substantially limiting. That means the student is not eligible. Or, alternatively, you’ll hear that there is impact. We then hold that impact up, as we’ve discussed, to our general expectation in the population. If we see substantial limitation, we address, we accommodate. If we do not, we do not.

In summation, folks, let’s remember: we have a diagnosis, we then plug it into a criteria. It’s important to hear from parents. It’s important to hear from educators. It’s important to hear from teachers what the real manifestation, what the real impact, is of that difficulty. We take that data and plug it in, in a compliant way. Need plus process, in order to ensure progress, in order to ensure access, in order to ensure compliance with Section 504 of the Rehabilitation Act.

Thank you for tuning in. Be careful out there.


Episode 5: When Are 504 Plans for Students Exiting Special Education Appropriate?

This video helps you understand when it makes sense to consider a 504 plan for a student who isn’t eligible for special education. We review eligibility criteria for IEPs and 504 plans to help you make this determination and understand the legal differences between the two classifications.

Learn which data should inform a compliant decision-making process.

Questions answered in this episode:

  1. What data should the 504 committee or evaluator consider?
  2. How can you ensure 504 accommodations provide equitable instructional access?
  3. Are you blurring process lines between IEP and 504? How does blurring those lines open you up to legal claims and compliance violations?



Hi, I’m John Comegno from the Comegno Law Group. In this segment, we’re going to talk about the differences between IEP and 504. We’re going to talk about how and why Section 504 is not a consolation prize. We’re going to talk about how 504 addresses certain needs in a meaningful way, which are different than how IEP addresses needs. We’re going to explore that by considering the differences between the laws. We recognize that these two different vehicles, in addressing student disability, have different intention. They have different purpose. At times, they can have different faces around the table.

When we speak very practically about the student that we consider now, we’ve evaluated, we’ve assessed and determine is no longer eligible for the IEP, there are certain students in a certain cohort were 504 may be relevant, may be valid. Again, it’s not a consolation prize. It’s not a step down. But there are certain students in exiting special education that we ought to consider 504 for.

Who are those students? In my experience, oftentimes, they’re specific learning-disabled students. They’re students whose difficulties, third prong eligibility criteria, no longer require special education. They no longer require specially designed instruction.

I refer to that case as the “Congratulations” not the “I’m sorry” not the, “I’m sorry, you no longer have an IEP,” but the, “Congratulations, we’ve ameliorated certain difficulties. The student can make progress in general ed now.” But there’s still a diagnosis of dyslexia. There’s still a diagnosis of processing difficulty. There’s still a decoding difficulty. Accommodations may still be relevant for those students, although, third prong, there is no longer a need for special education.

Our data show the student is making progress, has achieved goals and objectives readily. Will make progress, we anticipate in general education, but accommodations, functional accommodations, testing accommodations, accommodations for setting and otherwise in the classroom may be relevant. What do we do for those students?

We ought to remember that both processes have integrity. We should not be at the IEP team table, then ripping out a new piece of paper and saying, all right, this is what the 504 plan is going to provide.

In that circumstance, when that third prong of eligibility is no longer present, we ought to remember that we have another vehicle. We ought to advise parents of certain rights under 504 and offer an option for a referral to 504 for consideration. What data is the 504 committee going to consider? It may consider any functional data, any observation data that’s relevant. That very well may be the same testing data from our psych, from our ed eval, from our learning consultant, from teacher, parents, et cetera, that indicated no longer a need for specially designed instruction (SDI), but may present information that shows us which type of general ed accommodation is both applicable and appropriate. Section 504 of the Rehabilitation Act 1973, as we’ve discussed in another segment, looked to protect disabled veterans coming home from the Vietnam War. Over time, we see encroachment, if you will, into public schools and public employment. We see application of Section 504’s disability-based discrimination prohibition applied to students.

504, at its inception, said, don’t discriminate. Over time, that expanded to students. 1973, two years later, passage of Public Law 94142, P.L. 94-142, initially called the Education of All Handicapped Children Act (EHCA), was expressly and singularly passed to address the rights and needs of public-school students. Public-school students who, as we see in the U.S. Supreme Court’s recent decision in Endrew F., were tragically left aside, excluded, institutionalized, left to fail out, drop out, left to stagnate. The court in that case spoke to tragic stagnation, pervasive exclusion and isolation. It’s in that backdrop where we have estimates of three and a half million students being institutionalized in the early seventies. The EHCA is passed and adopted.

The target, the goal, the candidate for services under the EHCA is the student who had been left aside, the student who was not making progress, who was not learning the general education.

It is the rights of that student and, today, the rights of the student who is in need of special education in order to learn the general education for whom IDEA, now, is intended to apply and support and address. That’s very different than 504.

Section 504 is about accommodating in the general education. EHCA passed in 1975 as an optional law. Optional? What do you mean by that? Optional in that, if your state and your state’s education agency, your state’s Department of Education or your SEA. If your SEA elects to accept federal IDEA Part B monies, and you’re probably not surprised to hear that all 50 states do, your state is bound to comply with what’s now known as the IDEA. You must comply with the federal law and the federal regulation. You must consistently implement, objectively, the criteria for service under the IDEA.

Section 504 applies to public schools regardless of whether or not you accept federal monies because all public schools in one way or another already do receive federal monies. And in that way, is not optional, whereas IDEA is. But again, it’s important to consider differing intent, different purpose, different criteria.

We spoke in another segment about the meat of 504. I characterize that law as a civil rights law that prohibited disability-based discrimination: thou shall not discriminate on the basis of disability. The student who receives 504 accommodations is a general education student; that’s not the intent or the goal of the IDEA. The goal and the intent of the IDEA is to expand service for eligible students. The meat, if you will, that we can juxtapose with that direction to not discriminate, passed under the 1990 reauthorization of the IDEA, and from a regulation promulgated thereunder, speaks to expanded rights. Specifically, “To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” — FAPE, free appropriate public education, through special education, designed to meet unique needs. And it continues, “And prepare them for employment and independent living.” That’s not 504’s goal.

504’s goal doesn’t speak to employment and doesn’t speak to independent living. It doesn’t speak to special education. It doesn’t, in many ways, even speak to unique need. It speaks to ensuring participation in the general education. It speaks to access, to the same experience that other general education students enjoy. When we start blurring lines, when we start providing 504 simply because IEP is no longer around, or we’ve missed the mark. Or a student who’s not eligible for an IEP, but we provide an IEP instead of a 504 cause it’s funded. We’re blurring these lines. We’re not truly recognizing the intention of these laws. We’re ignoring the intention of these laws and we’re blurring process lines. That opens us up to claims that were not acting compliantly and it opens the door to inconsistent delivery of service.

Perhaps an even easier way to understand the differences between 504 an IDEA is to consider the differences in the eligibility criteria. 504’s eligibility criteria, and we plumbed this in a different segment, 504’s eligibility criteria has two prongs: physical or mental impairment, which substantially limits one or more major life activities. That’s it. We’re looking at impact in the general ed. IDEA’s criteria goes a step beyond. IDEA’s criteria, considering eligibility for IEP, has three prongs: number one, similar to physical or mental impairment: is there a disability? Is there a disabling condition? We’ve got boxes. We’ve got cubby holes under IDEA that we don’t have for 504. For 504, one is eligible or not. One has a physical or mental impairment or not.

With IDEA, we’ve got boxes: autism, emotional disturbance, specific learning difficulty, visual impairment, orthopedic impairment. We’ve got a dozen different cubbyholes: number one is disability. Number two, similar to substantial limitation in 504 criteria, we look at the impact. Is there an impact on learning? Section 504 is broad in considering impact on major life activity. 504 cares whether Jack can walk down the hallway. 504 is not focused solely on the impact of the difficulty in the classroom. It’s considering impact throughout our educational environment. IDEA doesn’t care whether Jack can walk down the hallway. IDEA only cares whether or not that disability impacts within the classroom, impacts learning or what we would refer to as educational performance. Further, beyond function, we’re looking at academic as well as functional as well as developmental difficulties or delays. 504 tends to focus more on function.

Two prongs, so far, of the IDEA criteria: disability and what is the academic impact of that disability? Third prong though is where the roads really diverge, and this is crucial to understand the differences, folks. Look smart to your friends. Influence your peers. What’s the difference between a 504 plan and an IEP? The difference is the third prong. The third prong of IDEA is whether or not that impact on academic performance may only be addressed, needs to be addressed, through the provision of special education. That disability adversely affects educational performance – number three – in addressing that difficulty, the needs require specially designed instruction: special education. In order to have an IEP, you have to need to have the special education that’s set forth in that IEP. 504 doesn’t speak to need for accommodation. 504 speaks to impact of difficulty. It speaks to access and that’s because 504 is civil rights legislation, which as we’ve discussed, prohibits disability-based discrimination.

It doesn’t change the experience. The experience is the same. The standard is the same. The expectation is the same. We provide accommodations in 504, adjustments. We do not provide change. We do not modify. With an IEP, we modify, we change and we call that special education. We call that specially designed instruction. One has to need to receive special education in order to be eligible for an IEP. You can see then the significant differences between the intention in the law and the difference, practically speaking, in the plans that we provide.

General education is 504. The standard is reasonable accommodation: thou shall not discriminate. Special education is a true entitlement to FAPE (free and appropriate public education), where we’re going to look at that individual need. How does that disability impact learning? We’re going to bring to bear specially designed instruction, special education, that’s going to change the rights of our classified or identified or exceptional student and, depending on where you’re sitting and where you’re watching from, your states refer to those IEP students in different ways. The instructional rights are different. The process rights are different. That disciplinary rights of our special education students are different than our general education students.

With IEP, you have a right to special ed and general ed. With 504, you have a right to general ed. With IEP, there is process. You have a right to an IEP team. You have a right to certain notices. You have a right to consent. You have a right to every expert that’s sitting around that table. With 504, the law doesn’t speak to it at all. With 504, the law says, don’t discriminate. In fact, and it may surprise you, the Rehabilitation Act itself doesn’t use the word “504 plan” one time. It simply says, don’t discriminate. We don’t discriminate through the provision of accommodation decided upon by a team.

In another segment, I hope you tune in, we’re going to talk about crafting 504 plans today, through consistent processes. We’re going to talk about the kinds of faces, the experts, that we should see around the table, but the law doesn’t lay it out. So, when we talk about differences between the rights of these students, the process rights of the IEP student are much, much more significant than the process rights of the 504 student. IEP expands, changes the standard and the entitlement. 504 protects the general ed experience, it doesn’t change it.

Third, third change: discipline. Our IEP students, we’re going to protect against disciplinary consequence for manifestation of their disability. In other words, we’re not going to discipline symptoms of that disability for which we’ve found eligibility. 504 doesn’t speak to it, which makes it harder. There is no immediate right under the law for manifestation determination. In another segment, we’ll talk about disciplinary consequences and disciplinary implications. We still can’t discriminate but there’s no immediate right. Again, differences in the standard, differences in rights.

When there is a question, when you’re considering, “Which door do we go in? Do we go in 504 do we go in through IEP?” – roll the tape forward and let’s consider our three most pressing, from my perspective, best practice points: need, process and progress. The individual need of that student that’s gotten on your radar, how are you going to address that need? Is it going to require special education or change? That’s IEP. Or, alternatively, through accommodation in the general education setting? May we ensure that that student is making progress. That’s not IEP. That’s 504. The difference between access, participation, protection in the general education experience and individualized educational benefit through an IEP.

So, let’s talk very practically about the differences in the plans. IEPs, as we’ve stated, are special education, specially designed instruction and related services. 504 plans mean accommodation. So, when I said, “What’s the primary difference?” – the primary difference is the difference in need between which vehicle we’re going to provide: 504 is accommodation, IEP is special education.

Accommodations adjust. They adjust how a student with a disability is taught. They adjust how a student with a disability is tested. They adjust how we’re going to provide that instruction, how we are going to permit that student to engage in the classroom, how that student is going to be tested or show mastery of the information that they’ve learned. But the information that we expect the student to know and to process and be exposed to in the classroom is the same. We’re not going to change that – that would be a modification. IEPs modify. 504 plans adjust.

What is an adjustment? An adjustment, an accommodation, is practices and procedures in the areas of presentations, setting, timing, scheduling to provide equity, equity in instruction, equity in assessment, by reducing or eliminating the effect of the disability. Accommodations provide and enable equal access to grade-level learning in content. They don’t change. They provide equal opportunity to demonstrate what’s learned. They don’t change what the student is taught. They don’t change what the student is expected to know. They don’t fundamentally alter or lower expectations or standards.

We can step across the island and look at employment. In our segment on otherwise qualified, we talked about the expectation that employees complete the essential tasks or duties of their position under 504, and that’s because, again, we adjust. We don’t modify. So, too, here, students. 504 plans adjust. They don’t modify. Some practical examples might be: books on tape, assistive devices, a calculator, a laptop, fill-in-the-blank questions verses an essay, setting changes, like distraction-free settings or distraction-reduced settings, providing a laptop or a scribe or a reader, increasing or adjusting the time for a test, permitting a student to stand up and take a sensory break, permitting a student to step out and drink water, have a bite to eat. But that student’s going to come back in and be tested and participate in the same instruction. The curriculum doesn’t change based on need. The need doesn’t require it. The need shows substantial limitation of major life activity which may be ameliorated or addressed by virtue of the accommodation.

When that is not successful, when that doesn’t have efficacy, we then step across to IEP. We then look to modification. We look to specially designing instruction, the need for special education. Third prong: IEP criteria. Modifications change. Modifications change what curriculum is provided. They change what curriculum is tested. They create different curricular standard. They create different rigor. They provide meaningful and productive learning experiences based on individual need and ability. They create a different standard. That standard is linked to, it’s related to, the general education, but it’s a differentiation. With specially designed instruction, special education, the obvious examples are our goals and objectives in the IEP. Goals and objectives that are focused first on skill deficit or need, not curriculum. They’re focused on why the student hasn’t learned and made progress in in the general education, not what the general education is.

So, we’ve talked in the segment about differences in the criteria, differences in the content, differences in the goal. 504 has its own valid, important, standalone purpose: to adjust and provide accommodation. When a student is not eligible for IEP, we may consider 504; we’re not compelled to. If we choose to refer that student, either in the initial process or after a determination of no further eligibility for special education, let’s make sure that that process has integrity. Let’s make sure that that process considers the differing needs and the difference between accommodation and modification. Thank you for tuning in. Again, I’m John Comegno. Be careful out there.


Episode 6: What About Behaviors? Do Our 504 Students Receive “Extra” Due Process?

It’s time to get your Section 504 legal questions answered!

In this video, learn common questions that often come up around a district’s due process as it relates to behavior intervention plans and behavior management plans for students that fall under Section 504.

Find out what the decision-making process for disciplining a 504-eligible student looks like from a legal perspective, and where it can become risky for schools. Also learn where data and form integrity come into play when managing compliance and plan implementation.

Questions answered in this episode:

  1. How should the impact of a disability inform your decisions about disciplining 504-eligible students?
  2. Can you hold 504-eligible students accountable to your general education codes of conduct?
  3. How specific does your discipline data need to be to keep you compliant with 504?



What about behaviors? Are our 504 students protected by extra due process or procedures like our IEP students?

Hi. I’m John Comegno from the Comegno Law Group. In this segment, we’re going to talk about disciplinary considerations with regard to 504. Specifically, are our 504 students eligible for additional protection? May we hold them accountable to our general education codes of conduct? Do we need to provide additional supports? Are there hurdles? Are there barriers? Are there extra considerations in how we meet out discipline or impose sanction for misconduct amongst 504 students?

To answer this question, we need to consider contextually what 504 is. IDEA, as we’ve discussed in other segments, expands the rights of the eligible student. The IEP student is eligible for additional protection instructionally. They have additional process requirements and rights and they’re eligible for manifestation determination hearings. There are limits practically imposed when we consider how we can discipline the classified, identified or exceptional student.

What about 504? What is 504? As we know, 504 is very simply a prohibition against disability-based discrimination. Nowhere in 504 do we see the words manifestation determination. Nowhere in Section 504 do we see any specific direction that the 504 committee consider the impact of disability when considering discipline. Nowhere does the law tell us that we need to analytically or objectively or scientifically review whether or not misconduct, whether or not violations of the code of conduct, may be implicated, may be manifestation, may be symptoms of the physical or mental impairment for which we found 504 eligibility.

So, we could say no, right? Then, there is no added protection? There is no added process? There are no limits on our right to discipline? It seems to make sense, doesn’t it? Unfortunately, it’s not that easy. Unfortunately, frankly, those of you who serve as disciplinarian, those of you who have 504 administrator responsibilities actually have to be extra careful about our 504 students because the law protects against exclusion on the basis of disability.

So, we could say no, right? Then, there is no added protection? There is no added process? There are no limits on our right to discipline? It seems to make sense, doesn’t it? Unfortunately, it’s not that easy. Unfortunately, frankly, those of you who serve as disciplinarian, those of you who have 504 administrator responsibilities actually have to be extra careful about our 504 students because the law protects against exclusion on the basis of disability.

The law says practically, and the law’s basic direction is that, no otherwise qualified individual with a disability, on the basis of that disability, on the basis of that physical or mental impairment, may be excluded or denied benefits or treated differently. So the law may not say, and doesn’t say, that we’ve got to provide a manifestation determination or otherwise consider the discipline in relation to the disability, but it’s saying to you: don’t exclude on the basis of disability. Let me put that differently. The student with the oppositional defiant disorder, the student with the anxiety disorder, the student with a mental health issue and symptomatology which interferes with his compliance to the code of conduct, his compliance to teacher direction, his compliance to your direction, the disciplinarian, that may equal symptoms of the disability. If we then suspend, if we then expel, if we then segregate as sanctioned, are we not violating the tenants of Section 504? We very well may be.

That’s why your job is even harder than your special education peers. Your special education peers implement a manifestation determination and we look very objectively, very analytically – it’s very simple, if you will, to tie together. We need to have a similar focus. We can recognize that public education is a civil right and you are the state, and that’s the hook. We are en loco parentis. You have disciplinary authority, but as the state, as protected by Section 504, we may not take away that civil right. We may not exclude or treat differently on the basis of that disability, which means, and this should be the overhanging principle when we talk about discipline and 504, we can’t discipline symptoms. We can’t discipline the manifestation, then, of that physical or mental impairment.

General education students are entitled to due process. They’re entitled to notice of a charge against them and they’re entitled to a hearing. A hearing is very simply an opportunity to confront the charge, to be heard, to have consideration of their side of the story. The due process for the IDEA student, for the student protected by the IEP, is expanded through what we refer to as a manifestation determination meeting or hearing. The manifestation determination, the MD, if you will, looks at the relationship between the recognized disability and the misconduct.

What I suggest to you by way of practice is that we don’t necessarily always have to provide an MD, but we need to be mindful of manifestation of physical or mental impairment. We need to be mindful of symptoms. We need to be mindful of the impact of the disability for which we found 504 eligibility as it relates to the code of conduct, particularly for those students who are receiving accommodations that address compliance with the code of conduct. Is a behavioral intervention plan in place? Is a behavioral management plan in place? Has a behaviorist provided support? Has a teacher, through good old-fashioned differentiated instruction, addressed a student’s inability to attend or focus or incentivize behavior or compliance with the code of conduct? If so, that student’s disciplinary issues, behavioral issues, the emotional manifestation if you will, of the difficulty is on your radar and you’re on notice. If we then take disciplinary action as to those symptoms, there’s an argument that we’re violating that student’s 504 rights.

So practically, what do we do? Some very practical suggestions. Those of you that have building-level 504 responsibility, who are not disciplinarian, need to make sure that you’re speaking with disciplinarian when we talk about discipline of the 504 student. Those of you who wear multiple hats, congratulations. I know many of you do wear those multiple hats. You need to wear both of those hats when considering potential discipline of the 504 student. That’s speaking very generally.

We may also consider the provision of manifestation determination for our 504 students. To do that, we need to understand what the manifestation determination is and we need to understand what the questions are. There are essentially two questions and they’re two questions that work to protect against discrimination in discipline with regard to student misconduct in the 504 student. We’re taking – and be mindful of this – we’re taking concepts from IDEA and applying it to 504, but that’s not required under the law. But by way of best practice, doing this may serve a prophylactic and proactive role in ensuring that we’re not violating civil rights of the 504 student.

What are the questions? Two questions. The first question, number one: “Was the misconduct caused by or did it have a direct and substantial relationship to the disability?” Billy ADHD who is off task and distracting his peers. Does that ADHD cause the misconduct, the failure to follow direction, the failure to comply with the code of conduct or not? If so, we can conclude that we should not be disciplining that behavior. Number one, causal relationship; was the conduct caused by or did it have a direct and substantial relationship (to the disability)? The facts could be different. Billy ADHD brings in an illegal substance or brings in a weapon or cheats on an exam. Those acts of misconduct. Are they directly tied to the mental health diagnosis? I don’t know. You’re the practitioner. You’re the expert in that regard, but that’s the relationship that we’re looking at in considering the first prong of the manifestation determination process. Number one. If the answer’s yes, stop. Deal with that issue therapeutically, deal with that issue by looking at the accommodations that we have provided in the 504. Are we implementing them consistently? If we’re not, we need to. If we need to retool the accommodations that we’re providing in the 504 plan, then we ought to, we ought to get back to the table.

If there’s no relation, we can go on to the next question. So again, the first question is causal relationship. Because of the physical or mental impairment, misconduct happened. Direct symptom, number two. Number two looks to our actions. Did the student engage in misconduct because of our failure to implement the 504 plan? And the question under IDEA focuses on IEP. That’s not the issue here. Obviously, the issue here is: did the student engage in misconduct because of our failure to implement the 504 plan?

The 504 provides testing accommodation. It provides a use of laptop, it provides other assistive devices. If the student gets into a fight in the lunch line, and we hadn’t provided the testing accommodation, do we think there’s a causal relationship? Probably not. Student gets into a fight in the lunch line, and the student has anxiety, and the student has received additional counseling, and social group, lunch bunch. And it turns out that he has not been reporting to group, and we have not been sending notes, we have not been providing the service. Is there a causal relationship now? Again, that’s a question for you, the experts, to determine. It’s certainly a lot closer.

If we conclude that there’s a real impact because of our failure to implement accommodation or failure to implement consistently, we should not be disciplining. That type of discipline, that type of consequence or sanction, may constitute disability-based discrimination, because we may be failing to accommodate the difficulty, thus not providing access, or penalizing the student.

So, who makes these kinds of decisions? If we elect to provide manifestation determination, since it’s an IDEA principle, I suggest, by way of best practice, it all to similarly be administered, held, considered, implemented by our 504 committee. Let’s have those same decision-makers around the table with expertise that know the physical or mental impairment, know the diagnosis, know the issues, know the data, and are familiar with the data for which we’ve already found eligibility, to apply that data to the manifestation determination.

The more comprehensive our analysis, the more specific the data that we’re relying upon, the more reliable, the more valid our determination will be. If we’re going to provide MD, let’s make sure we do it consistently.

In other segments, we’ve talked about consistency in criteria and we’ve talked about consistency in data collection. Let’s remember here, we need to be consistent in our approach with discipline. If “Elementary One” does not consider manifestation determination, but “Elementary Two” does, and an “Elementary One” student is suspended and challenges, the fact that we’ve got an inconsistent approach – how do you expect to be successful?

The same with vertical consistency. What are we doing at the middle school level? What are we doing at the high school level? Let’s be consistent. Let’s also be consistent if we’re going to be employing manifestation determination; let’s be consistent with what the questions are, the kind of data we plug in, and the timelines that we’re ascribing to that process. These procedures should be in writing. You should be training your staff to employ and understand these procedures consistently.

The takeaway, folks, in summation: IDEA changes, expands disciplinary protections and limits; 504 doesn’t. Section 504 more nebulously says, you can’t discriminate on the basis of disability. You can’t exclude on the basis of disability. The simple overarching principle is: you can’t discipline symptoms. Take that into consideration when you’re considering discipline and an eligible student. I’m John Comegno. Thank you for tuning in. Be careful out there.

Episode 7: Best Practices in Drafting Section 504 Plans: The Need for Consistency

Section 504 doesn’t say what a 504 plan should include. It doesn’t even mention that you need a plan. Yet here you are, needing to develop plans that that protect your students from disability-based discrimination.

In this video, learn the latest best practices for 504 plans and procedural safeguards, accommodation review and parental consent. See how building an internal 504-decision-making process can help your district stay in compliance with 504 law.

Questions answered in this episode:

  1. What do compliant 504 plans look like? What information should they include?
  2. Who should be part of 504 decisions?
  3. What kind of 504 data should you consider?



A law that doesn’t tell us what kind of data we consider, a law that doesn’t tell us who’s at the table and making decisions, a law that doesn’t tell us what the plan should look like or even that we need a plan. How and who and where and when and what.

I’m John Comegno from the Comegno Law Group. Thank you for tuning in. We’re talking today about the crucial, practical question of, “How do we craft consistent plans?” How do we craft consistent 504 plans in implementing a law that doesn’t tell us that we even need to have a plan?

The Rehabilitation Act of 1973, in its Section 504, simply says don’t discriminate. You can’t exclude. You can’t deny. You can’t treat differently on the basis of disability. It doesn’t say you have to have a plan. It doesn’t say we have to assess data to look at eligibility. It says, don’t discriminate.

We liken our delivery of service under 504 to avoid discrimination to the Individuals with Disabilities Education Act (IDEA). IDEA lays out in excruciating detail what IEPs are, who makes decisions and how, and when, and what the titles are of those individuals at the table. Even how many days prior to a meeting you need to send a letter home.

Section 504 doesn’t provide that type of clarity. We can look to IDEA for guidance, but we ought to be mindful that it’s up to us. It’s up to you. It’s up to your district to make determinations as to what’s reasonable, what’s practical and what’s relevant in developing plans.

There are three key , important, guiding best practice principles in 504 and IDEA. They are: addressing individual need, plugging that individual need into a compliant process and making sure that students are succeeding — making progress for our 504 student who is in the general ed, for our eligible student under IDEA, that’s following goals and objectives set forth. That’s their own road. That’s their specially designed instruction, or their special education.

But with 504, that second prong, that prong of process. How do we figure out what that process is if the law doesn’t tell us what the process is? Of crucial importance is consistency in forms, consistency in people, consistency in review, consistency in ensuring implementation. Our applications can guide us along that road. They can take that issue out of play. We need that kind of assistance in order to make sure we’re being compliant with 504. Remember, need, process, progress.

Remember that 504 is all about access. So, in this segment we’re going to talk about how we get to that compliant plan. We’re going to talk about best practices. We can first talk about decision-making.

Again, IDEA tells us, multidisciplinary team. Then, when a student is eligible, IEP team. We know who’s there. 504 doesn’t tell us we need to have a plan, so it isn’t going to tell us who makes decisions about that plan — that it doesn’t tell us we need to have.

So, who does that mean? Who should we be bringing to the table? Who and what makes decisions? In fact, 504 regulations say very unhelpfully, “A recipient that employs 15 or more persons shall designate at least one to coordinate efforts under this part.” That has led to the unfortunate not best practice of a single building administrator, perhaps you — congratulations —making 504 determinations all on your own. I refer to that as “lone ranger decision-making.” It’s unfortunate and it shortchanges you. It shortchanges our educational institution in not bringing the kind of expertise and perspective to the table that can assist our 504 students to truly enjoy access in an included general education experience.

To me, clearly, today the best practice is to in panel a committee. And I like the term committee, whether it’s a 504 committee or a 504 team, again, we can look to IDEA as an example, not as a requirement. As I have mentioned, you and your districts must set up consistent processes even down to the faces at the table and making these kinds of decisions.

What should be guiding that? What should be guiding that decision-making? Individual need. The need of the medically involved student is different than the need of the student who used to be eligible for an IEP because of dyslexia, but no longer needs special education. Is the nurse in the room. Why? It’s different for medically fragile students; for example, the student with diabetes or the student with a concussion. Let’s be guided and let’s have flexibility depending on the needs that we’re addressing. Mindful that our goal is access to that general education experience, addressing the disabling condition, addressing the disability.

To me, we ought to in panel a dream team. Who’s on the Dream Team for 504? The student, parents, general education teacher. I’ve asked you in a number of these segments, “Who knows the student best, and who knows the student best educationally?” Student and parent know the student best. The general education teacher knows the student best educationally. Bringing those voices to the table is very important to make sure that we’re bringing the right kind of data to the table to make decisions. Student, parents, general education teacher, nurse, our chief medical officer, administrator, school counselor. To me, those individuals are crucial elements of the team.

Now, unfortunately, some of you may not have nurses in your buildings and, if that’s the case, look to medical support in the decision-making process. For instance, if you have nurses on call or nurses who are available or if you have contracts with school physicians or hospitals. If the majority of the time here, we’re looking at physical or mental impairments supported by a medical diagnosis or reflected by a medical diagnosis, we need input on our side of the ledger. Look to those individuals to provide support. If you have a nurse in your building, I encourage you to have that nurse at the table when we’re talking about medical issues. Student, parent, general education teacher, nurse, administrator, school counselor. From there on, we can off-road. Considering the nature of the difficulty.

Is this a student who used to be eligible for special education? If so, perhaps we have a special educator at the table. Perhaps we have a special education team member, like a psychologist, at the table to assist us in interpreting data to give us historical information about what has worked and what hasn’t worked.

There are even times when we need to look to a school physician if there are questions about the integrity of medical data being provided to us. Let’s remember that a referral to 504 can be made by anyone. And, let’s not fall in the black hole —which I discussed in another segment — looking at eligibility, the black hole that this is all about academic performance, because it is not. Our criteria look to major life activities. There are thousands, if not more, major life activities. Learning is but one of those major life activities. We may have a student with straight A’s who’s eligible for 504. Maybe she’s got a twisted ankle. Maybe she’s got generalized anxiety disorder. We may have a student who’s failing, who’s not eligible because maybe he’s simply not applying himself. We need to take that into consideration and make sure that we’re not limiting our focus to academic performance.

What type of data should we be looking at? In another segment we talked about data collection and being objective with data collection and we talked about focusing on major life activities. The higher the pile, the more current the pile, the more valid the data we are relying upon and processing, the better our decision-making will be. We have some regulatory guidance regarding data that we’re considering, but let’s remember we are not evaluating or assessing the student with specific instruments to consider 504 eligibility. That’s IEP, that’s IDEA. And, unless we’re sitting at the 504 table after we’ve evaluated an IEP student who is no longer found eligible, or after the initial eligibility phase and found the student ineligible, we’re not going to be considering that data.

We’re not going to have the benefit of our own testing. If we’re looking at testing data that we’ve already completed, if we have it available, we certainly may look at it and we ought to look at it. Otherwise, we’re looking at more anecdotal information. We’re looking at information that the parent brings in, like medical information or independent evaluation. We’re looking to the source of our most helpful data regarding the impact of physical or mental impairment educationally, and that’s our general education teacher. What are her observations? How has she provided support in the classroom? How has she accommodated the difficulty before? What has worked? What hasn’t? Have behaviors impacted performance? If so, what were the behaviors? How were they addressed? Also, we may have data through aptitude and achievement tests. We may have data from a nurse regarding physical condition. We may look at adaptive behavior. How has the student compensated or not before? Last and finally, we may consider social and cultural background. Is this a student who was a refugee? Is this a student who has never received instruction from a female teacher before? Is this an individual who’s never been in a coed setting before? Is this an individual who is an English as a second language student? Do we have social and cultural issues that are impacting performance? If so, we ought to consider that.

How often do we review eligibility? For Section 504, which doesn’t tell us we have to have a plan and doesn’t tell us how often we look at that plan, the best practice is that we come back to the table every year. The U.S. Department of Education Office for Civil Rights has told us that we may look at eligibility every three years, similar to IDEA. I don’t think that’s the best practice. We look at eligibility every three years for IDEA because we have to evaluate, we have to test. There’s practice effect considerations. There are cost considerations. We don’t have those considerations for 504, when we’re looking at anecdotal information, considering general education performance. And, we’ve got our primary observer, the general education teacher or teachers, at the table. I think the best practice is to look at eligibility and comprehensiveness of that plan every year. Provide notice and get back to the table every year.

I even think we ought to do this in the fall, if we’re having IEP annual review in the spring, and we may have the same or similar faces at the table.

What are 504 safeguards? Again, since the law doesn’t tell us we have to have plans, the law’s not going to specify safeguards. We need to make sure that we provide notice to parents. We need to make sure we advise parents of their opportunity to review records. Parents do have a right to an impartial hearing and the law establishes other dispute resolution mechanisms. We need to notify parents of those rights. We must make sure that we’ve provided written information regarding those rights to the parents. Our states often don’t give us those forms. Many of our states, through our state educational agencies, have parental rights forms regarding special education available. We don’t have the benefit of that with 504, so you should craft your own.

What about consent? If I were to ask you when consent is required for special education, you’d rattle it off. You’d tell me which circumstance, you tell me how many days, you’d tell me when due processes is available and when it’s not, and that’s because our regulations are clear.

Our regulations here are not clear. Again, the U.S. Department of Education Office for Civil Rights has opined that consent is required under 504 the first time we’re looking at eligibility. Only the first time. We ought to follow that direction. I think we ought to do even better. I think we ought to ask for consent for implementation of the first plan and offer the opportunity to provide consent for subsequent plans. Mindful that this consent is not required for subsequent plans, if we afford the parent the opportunity to participate and we don’t hear from them. Let’s make sure, if we are securing consent, that the consent is in writing.

So what should the plan look like? We started talking about a law that doesn’t do this, doesn’t do that, but tells you not to discriminate. If we don’t have to have a 30-page plan, our plan ought to be focused and relevant. If we have the benefit of application, the benefit of software that directs us, this is not even a question we need to undertake. We ought to implement consistently that application with regard to 504, but let’s be mindful that the 504 plan simply needs to provide a snapshot of our decision-making progress. It needs to explain what data we considered in looking at need, what data we plugged into our process to find eligibility, how we’re going to review progress, which accommodations we are providing to enable access and who’s responsible. That’s all. That’s what we need to be focused on when we’re drafting plans and implementing plans.

Another very important point, and one that perhaps is silly for me to even suggest, we should never overpromise with 504. We should always be mindful that our plan matches our actual resources. Don’t promise a related service if we don’t have related service providers available to implement. Don’t promise an accommodation that’s not relevant in the middle school setting, based on the maturity of the student, simply because it was on a prior plan. Let’s make sure accommodations match actual need and actual resources, and let’s also make sure that we’re consistently implementing.

What other considerations are important for consistent and relevant plans? Perhaps the most important — after we get beyond who’s at the table and why they’re at the table and when they’re at the table — is a consideration of level of accommodation. 504 does not require us to change the educational experience. We’ve discussed that. Although certain courts and the Office of Civil Rights have talked about a free and appropriate public education (FAPE) in the context of 504, the law doesn’t tell us that FAPE is the standard for 504. The law prohibits us from excluding, denying benefit or treating differently. It requires access. It prohibits disability-based discrimination. It ensures the civil right. We do that by providing a plan in a consistent fashion, as we’ve been discussing, and providing accommodation.

The question then becomes, “What’s the level of accommodation?” Is the accommodation everything that’s on the doctor’s note? Is the accommodation that’s required everything that might be requested at the table, might be demanded at the table? No. Your obligation is to provide reasonable accommodation. Only reasonable accommodation, while being mindful that we’re not expanding rights.

We discussed in another segment the difference between accommodation and modification. Modifications change standard. They expand rights; accommodations adjust. They adjust how a student participates, how a student learns, how a student shows mastery. Accommodations are a lower standard. Accommodations need only be reasonable.

In looking at cases and looking at direction, what do we consider? May we consider costs? May we consider our ability to police? Our ability to implement our resources? The answer is yes. We have regulations that discuss what might be relevant, what might be reasonable. We’re not expected to undergo undue financial or administrative burden or hardship. We’re not expected to make changes and that’s because we’re talking about accommodating, not modifying.

Cases speak to reasonable accommodation as providing meaningful access. Minor readjustments. Not changes, readjustments, which don’t create undue hardship (for districts), as being meaningful and relevant and reasonable. Accommodation doesn’t have to be optimal. Effective accommodation as alternative to specific demand can be reasonable.

An interesting case coming out of the Third Circuit, involving a Pennsylvania-area school district in 2014, looked at the very relevant issue of allergy accommodation today.

Today, we see an incredible increase in diagnosis of allergies. Are we expected to sanitize? Are we expected to implement what was, in this case, a requested 19-page allergy action plan to ensure no impact of that physical impairment, those allergies? The school district didn’t think so. The school district took that plan that was demanded, that was proposed, and shared it with a school physician, and respectfully declined.

Instead, they suggested their own plan; a plan that included training regarding anaphylaxis, regarding reviewing symptoms, EpiPen, epinephrine administration. They made sure that that plan was circulated and made sure that the plan could be implemented. They made sure, bottom line, that that plan would enable access. The court concluded that this plan was reasonable. It was reasonable; it did not make changes, it did not impose undue financial or administrative burden.

So, folks, in considering our practical issues today, in considering the why and the how and the when and the who, let’s remember, 504 doesn’t change. 504 says don’t discriminate. 504 says enable access. 504 says, deliver reasonable accommodation to ensure that this precious cohort of students with physical and mental impairments can fully be included and receive the benefit of general education, just like their general education peers. Be guided by that principle. Thank you for tuning in. I’m John Comegno. Be careful out there.


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