504 Plan Eligibility Fact Sheet

504 plans provide the necessary services, accommodations, and modifications for students with disabilities to guarantee equal access to free and appropriate education from schools.

This fact sheet provides the basics about 504 plans and what they offer. It provides an overview about 504 plans; determining students’ eligibility; defining an impairment; and additional resources for further information.

504 Plans provide services, accommodations and modifications for students with disabilities and ensures they receive equal access to free and appropriate education from schools that receive federal funding. The following is a summary of information regarding 504 Plan eligibility for students with Tourette Syndrome (TS), emphasizing the provisions that apply specifically to students with TS.

Understanding Section 504
For a student to be found eligible for a 504 Plan, it must be demonstrated that the student’s symptoms substantially limit a ‘major life activity’. Major life activities, as defined in the Section 504 regulations at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Symptoms of TS can impact students’ ability to read, concentrate, think, and communicate1. The law states “that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 1This is particularly critical as a hallmark of TS due to the inconsistent and episodic nature of TS.

Defining an Impairment
An impairment, under Section 504, includes any disability, long-term illness, or a disorder that can significantly decrease a student’s ability to access learning in an educational setting due to a learning-, behavior-, or health-related condition 1. If an impairment limits at least one major life activity, it is still considered a disability. It is common for students with TS to spend considerably more time completing a task, due to the complexity of the disorder, compared to a student without a disability.

Determining Eligibility
Many students with TS are mistakenly denied eligibility because of their above average grades and/or high achievement assessment scores. Section 504 states that students can be found to be eligible, regardless of their intelligence, if the disability results in students being unable to fully demonstrate their ability.2,3 A student may still qualify for a 504 Plan even when the symptoms are being managed with medication, specific strategies, or undocumented supports.

The Americans with Disabilities Act Amendments Act of 2008 states: “The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”4 This Act “emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.”4

Funding for this article was made possible in part by the Centers For Disease Control and Prevention. The views expressed in written conference materials or publications and by speakers and moderators do not necessarily reflect the official policies of the Department of Health and Human Services, nor does the mention of trade names, commercial practices, or organizations imply endorsement by the U.S. Government.

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HISTORY

On September 28, 2008 the “Americans with Disabilities Amendments Act of 2008” was signed into law. Section 504 of the Rehabilitation Act of 1973 states: “No otherwise qualified individual with a disability in the United States . . . shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”  In education, Section 504 of the Act provides the basis for ‘504 Plans’ providing services, accommodations and modifications so that students with disabilities receive equal access to a free and appropriate education from schools that receive federal funding.

The original ADA (Americans with Disability Act) of 1990 defined an individual with a disability is a person who: (1) has a physical or mental impairment that substantially limits one or more major life activities; OR (2) has a record of such an impairment; OR (3) is regarded as having such an impairment.

‘Substantially limit a major life activity’ was erroneously interpreted to mean ‘unable to perform/severely restricted/significantly’ and applied to eligibility for 504 Plans.  Many students with TS were erroneously denied 504 Plans because they had above average grades and/or high achievement assessment scores, and were considered not eligible for 504 Plans.  (Even though Section 504 states “regardless of their intelligence”, and “unable to fully demonstrate their ability”).

THE IMPORTANT 2008 AMENDMENT

With the Americans with Disabilities Amendments Act of 2008, Congress clarified the intent of the definition of disability, and broadened the interpretation of ‘major life activities’.

“The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.” The Amendment “emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.” The Amendment restores the original definition of disability intended by Congress in that the disability “substantially” limits a major life activity instead of “significantly” or “severely” limits as had been mistakenly used.

STUDENTS WITH TOURETTE SYNDROME

Eligibility for 504 Plans for students who have TS and/or related disorders is now based on these major provisions of the ADAA:

  1. ‘Major Life Activity’ List

In order for a student to be found eligible for a 504 Plan, it must be demonstrated that the student’s symptoms substantially limit a ‘major life activity’.

“Major life activities, as defined in the Section 504 regulations at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. Other functions can be major life activities for purposes of Section 504.  In the Amendments Act
….. Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating.”

For students with Tourette Syndrome, two key additions to the list of ‘major life activities’ are particularly beneficial:

  1. Reading – Numerous symptoms of TS and related disorders substantially limit the activity of ‘reading’. A few examples are: numerous tics, eye blinking, head jerks, processing delays, obsessive/compulsive symptoms, arm movements, attention deficit disorder, counting words, etc.
  2. Communication
    Oral communication:
    •  Many students with TS have vocal tics that can substantially limit verbal communication making it less productive and/or socially inappropriate.

    •  Written communication:
    A great number of students with TS have tics and/or dysgraphia which substantially limits their ability to write and therefore to ‘communicate’ in a written fashion. A scribe, notes provided, access to word processors, and other accommodations and modifications may be necessary, depending on the unique needs of the child, in order to provide ‘equal access’ to an education.

  3. Episodic and Inconsistent Symptoms

The ADAA “clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

This speaks directly to the waxing and waning as well as the irregularity of Tourette syndrome symptoms which result in episodic and inconsistent limitations. It will be extremely important to be prepared to demonstrate specifically how symptoms interfere and prevent equal access when they are active.

Additionally, since many symptoms are episodic and/or hidden, it is often difficult for people not well versed in Tourette syndrome to recognize the significant impact symptoms have on a student’s ability to ‘learn’ ‘read’ and/or ‘communicate’. For instance, it is not unusual for people to dismiss tics as significantly impacting reading and/or writing thus preventing
equal access.

  1. Disability Can Impact One Major Life Activity without Needing to Impact Another

The ADAA clarifies that an impairment may limit only one major life activity and still be considered a disability. As an example, a student who has difficulty with written
‘communication’ may still be considered as having a qualifying disability even if he/she does well academically and symptoms are not impacting a second major life activity of
‘learning’. This is a critically important change as too often when a student maintains ‘good’ grades she/he is not provided the necessary accommodations which would allow him/her to demonstrate his/her true academic potential.

  1. Management of Disability and Mitigating Measures Do Not Make a Student Ineligible

The following clarifying statement from the Amendments Act is Important for students with TS: “an individual with an impairment that substantially limits a major life activity should not be penalized when seeking protection under the ADA simply because he or she managed their own adaptive strategies or received informal or undocumented accommodations that have the effect of lessening the deleterious impacts of their disability.”

If a student’s symptoms are being managed by medication, with specific strategies or undocumented supports he can still qualify for a 504 Plan. Additionally, when his ability to communicate, read or learn is substantially impaired but he is able to maintain high grades due to working with an after-school tutor or spending an extraordinary amount of time and effort on homework, he may still quality for a 504 Plan.

Mitigating measures can no longer be used as a reason to deny eligibility, with the exception of eyeglasses or contact lenses. Medications to manage symptoms are mitigating measures that cannot be used to deny a student a 504 Plan.

  1. Re-evaluation

Re-evaluations must be provided periodically and in a manner similar to IDEA re- evaluations and must occur prior to a significant change in placement. Terminating or significantly reducing a related service and transferring a student from one type of program to another would all be consider as a significant change in placement.

RESOURCE

1.  http://www2.ed.gov/about/offices/list/ocr/504faq.html