A referral can be initiated when:
- A parent/guardian or teacher initiates a request.
- A disability is suspected.
- A student exhibits a chronic health condition.
- A student exhibits persistent academic or learning problems where interventions have not been effective.
- A student exhibits persistent behavior problems that result in suspension and traditional behavior management interventions have not been effective.
- A student is evaluated but found not to be eligible for a disability under IDEA.
- A student exits from eligibility for a disability under IDEA.
Under Section 504, a person is considered to have a disability if that person (29 U.S.C. Sec. 706 (8)):
- has physical or mental impairment which substantially limits one or more such person’s major life activities or bodily functions
- has a record of such impairment, or
- is regarded as having such an impairment.
The Act defines a physical or mental impairment as:
- any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitor-urinary; hemic and lymphatic; skin and endocrine or
- any mental or psychological disorder, such as intellectual disabilities, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
This regulatory provision does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list.
It is important to remember that the presence of one of these conditions in itself does not qualify an individual for 504 protection. The impairment must also cause a substantial limitation of a major life activity/major bodily function.
Substantial Limitation
A substantial limitation is the inability to perform a major life activity including bodily functions when compared to how the student in the general population performs the same life activity or function. The ADA has long defined “substantially limits” as meaning that a person is unable to or is significantly restricted as to the condition, manner or duration under which he or she can perform the major life activity as compared an average person. “Average person” means average for the student’s age or grade level across a large population.
Mitigating Measures
Mitigating measures may be used by a disabled student to manage his or her impairment or lessen the impact of his or her impairment.
Congress provides a non-exhaustive list of mitigating measures. This list includes the following: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications. (http://www2.ed.gov/about/offices/list/ocr/504faq.html)
These mitigating measures must be disregarded when determining whether a student’s impairment constitutes a disability under Section 504. However, the mitigating measures may be considered when writing a student’s accommodation plan if needed.
Section 504 does provide an exception of ordinary corrective and contact lenses.
Temporary or Transitory Impairments
Temporary or transitory impairments do not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities for an extended period of time.
The impairment is substantial when considering factors such as the anticipated duration, generally should last in excess of six (6) months, and the extent to which there is a limitation on a major life activity.
This determination as to whether the temporary or transitory impairment is substantial enough is made on a case by case basis, taking into consideration both the expected duration of the impairment and the extent to which it actually limits a major life activity including bodily functions.
In the Amendments Act, Congress clarified that an individual is not “regarded as” an individual with a disability if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
Impairments that are Episodic or in Remission
Impairments that are Episodic or in Remission are those conditions that if active, substantially limit a major life activity including bodily functions.
Students who have impairment that may be considered episodic or in remission may be determined eligible under Section 504 as a student with a disability. These students may not need an active Section 504 plan until their condition becomes active and substantially limits a major life activity including bodily function.
Eligibility should not be denied if the condition is not currently active at the time of the evaluation. Evaluations should be done with the intent to look at the students’ performance when the condition is active and review the cumulative data that shows the impact of the condition over time.
Examples of episodic impairments are seasonal allergies, cystic fibrosis, and migraines. Cancer would be an example of an impairment in remission.
Prongs 2 and 3 Protection against Discrimination:
Explanation of "has a record of" and "is regarded as having".
These considerations for eligibility as a person with an impairment cover persons with a history of a disability or persons who are perceived as having a disability. An individual that meets this criteria may have an impairment not limiting a major life activity but treated as disabled or no impairment but treated as disabled. These impairments do not require accommodations; however, they may still be protected by law.
While a " record of" an impairment or being "regarded as having" an impairment may give rise to anti-discrimination protection under Section 504, these two prongs do not trigger the school district's obligation to provide a Free Appropriate Public app (FAPE).
Districts have no duty to refer, evaluate, or place students who qualify under prongs two or three. The only duty to these students is to not discriminate against them on the basis of the history of an impairment or the perception that the child is impaired.
Re-evaluation of eligibility
Section 504 is required every 3 years, more frequently if conditions warrant, or if the child's parent or teacher requests a re-evaluation, but not more than once a year.
