PROCEDURAL SAFEGUARDS

Public elementary and secondary schools must employ procedural safeguards regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services.

 

40. Must a recipient school district obtain parental consent prior to initiating a Section 504 evaluation?

 

Yes. OCR has interpreted Section 504 to require districts to obtainparental permission for initial evaluations. If a district suspects a student needs or is believed to need special instruction or related services and parental consent is withheld, districts may use due process hearing procedures to override the parents' denial of consent for an initial evaluation.

 

41. If so, in what form is consent required?

 

Section 504 is silent on the form of parental consent required. OCR has accepted written consent as compliance. IDEA as well as many state laws also require written consent prior to initiating an evaluation.

 

42. What can a recipient school district do if a parent withholds consent for a student to secure services under Section 504 after a student is determined eligible for services?

 

Section 504 neither prohibits nor requires a school district to initiate a due process hearing to override a parental refusal to consent with respect to the initial provision of special education and related services. Nonetheless, school districts should consider that IDEA no longer permits school districts to initiate a due process hearing to override a parental refusal to consent to the initial provision of services.

 

43. What procedural safeguards are required under Section 504?

 

Recipient school districts are required to establish and implement procedural safeguards that include notice, an opportunity for parents to review relevant records, an impartial hearing with opportunity for participation by the student's parents or guardian, representation by counsel and a review procedure.

 

44. What is a recipient school district's responsibility under Section 504 to provide information to parents and students about its evaluation and placement process?

 

Section 504 requires districts to provide notice to parents explaining any evaluation and placement decisions affecting their children and explaining the parents' right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing.

 

45. Is there a mediation requirement under Section 504?

 

No.

TERMINOLOGY

 

The following terms may be confusing and/or are frequently used incorrectly in the elementary and secondary school context.

 

Accommodation: a term correctly used in the context of public accommodations and facilities; an individual with a disability may not be excluded, denied services, segregated or otherwise treated differently than other individuals by a public accommodation or commercial facility; (term is not to be confused with "reasonable accommodation," discussed below)

 

Equal access: equal opportunity of a qualified person with a disability to participate in or benefit from educational aids, benefits, or services

 

Free and appropriate public education (FAPE): a term used in the elementary and secondary school context; refers to the provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met and is based upon adherence to procedures that satisfy the Section 504 requirements pertaining to educational setting, evaluation and placement, and procedural safeguards

 

Placement: a term used in the elementary and secondary school context; refers to regular and/or special educational program in which a student receives educational and/or related services

 

Reasonable accommodation: a term used in the employment context to refer to modifications or adjustments employers make to a job application process, the work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment; this term is sometimes used incorrectly to refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments and auxiliary aids and services in the postsecondary school context>

 

Related services: a term used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic services and transportation

 

Does my child need to be physically disabled to get services?

No.  Children with mental disabilities or impairments may be eligible for services under both the Individuals with Disabilities Education Act (IDEA) or Section 504.

What kind of disability must my child have in order to qualify for Section 504?

 

The definition of a child with a disability under Section 504 is broader than in Special Education.  504 says that a child with a disability is a student "whose physical or mental disability substantially limits one or more major life activities, such as caring for oneself, seeing, breathing, learning, and walking."