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Section 504 Plans

Section 504 of the Rehabilitation Act of 1973 is a civil rights law that prohibits discrimination in an educational program or institution on the basis of a disability.  By law, every student with a disability must be afforded a “free and appropriate public education.” A food allergy may be considered a disability under this law.  Public schools, as well as private preschools and daycare centers that receive federal funds, are required to comply with this law.

The following information, provided by the U.S. Department of Education’s Office of Civil Rights, is designed to help parents better understand the rights of their food-allergic children at school. 

A child who qualifies as disabled under Section 504 may be entitled to a 504 Accommodation Plan, which is designed to meet his or her individual needs.  Not every food-allergic student needs a 504 Plan or may qualify for one. The first steps to determine if a 504 Plan is appropriate are:

• Examine the school’s current food allergy policy;
• Request that your child’s pediatric allergist write a letter that states your child’s diagnosis, severity of reactions, and whether or not the respiratory, cardiovascular and/or skin systems are affected;
• Contact the office of the Superintendent of Schools for your school district and ask for a meeting with your child’s 504 Plan Coordinator.

What is the U. S. Department of Education’s Office for Civil Rights?
The Office for Civil Rights (OCR) is an agency within the U.S. Department of Education (Department) that enforces federal civil rights laws that prohibit discrimination in programs or activities that receive federal financial assistance from the Department. These laws prohibit discrimination on the basis of race, color, national origin, sex, disability and age. They extend to all state education agencies, public elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries, and museums that receive Department funds. OCR has 12 enforcement offices nationwide and a headquarters office in Washington, D.C.

In addition to Section 504, OCR enforces two other federal civil rights laws.  Title II of the Americans with Disabilities Act of 1990 prohibits discrimination on the basis of disability by public entities.  The Boy Scouts of America Equal Access Act applies to public elementary schools, public secondary schools, state educational agencies, and local educational agencies that receive federal financial assistance from the Department of Education and that provide an opportunity for one or more outside youth or community groups to meet on school premises before or after school hours. These schools and agencies may not deny equal access or a fair opportunity to meet to, or may not discriminate against, the Boy Scouts and certain other patriotic youth groups.

Which laws does OCR enforce that prohibit discrimination on the basis of disability?
OCR enforces two federal civil rights laws that prohibit discrimination on the basis of disability. The first is Section 504 of the Rehabilitation Act of 1973 (Section 504), and its implementing regulation at 34 Code of Federal Regulations (C.F.R.) Part 104. Section 504 prohibits discrimination on the basis of disability in programs and activities that receive federal financial assistance from the Department. The second is Title II of the Americans with Disabilities Act of 1990 (Title II), and its implementing regulation at 28 C.ER. Part 35. Title II extends the prohibition against discrimination based on disability to the full range of state or local government services (including public schools), programs, or activities regardless of whether they receive Federal financial assistance.

Are all school districts, colleges, and universities covered by Section 504 and Title II?
Section 504 covers public school districts because they receive federal financial assistance. In general, public colleges and universities, as well as most private colleges and universities, receive federal financial assistance; thus, they are subject to the requirements of Section 504. There may be some private colleges that do not receive any federal financial assistance, and Section 504 would not apply to them. Title II applies to public entities, and all school districts and public colleges and universities are covered by Title II. Title II does not apply to private colleges and universities or private elementary and secondary institutions.

What students do Section 504 and Title II cover?
To be protected under Section 504 and Title II, a student must: 1) have a physical or mental impairment that substantially limits one or more major life activities; 2) have a record of such an impairment, or 3) be regarded as having such an impairment. Section 504 requires that school districts provide a free appropriate public education (FAPE) to qualified students with disabilities in the school district’s jurisdiction, regardless of the nature or severity of their disability. School districts satisfy their Title II obligations in educating students with disabilities by complying with the FAPE requirements of Section 504.

What is a physical or mental impairment that substantially limits a major life activity?
The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on a case-by-case basis. The Section 504 regulation, at 34 C.F.R. 104.3(j)(2)(i), and the Title II regulation at 28 C.ER. § 35.104, define 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; genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. These Section 504 and Title II regulations do 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.

Major life activities, as defined in the Section 504 regulation, at 34 C.F.R. 104.3(j )(2)(ii) and the Title II regulation at 28C.F.R. § 35.104, 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.

Does OCR endorse a single formula or scale that measures substantial limitation?
No. The determination of substantial limitation must be made on a case-by-case basis with respect to each individual student. For example, the Section 504 regulation for elementary and secondary programs, at 34 C.F.R. § 104.35 (c), requires that a group of knowledgeable persons draw upon information from a variety of sources in making this determination.

Are there any impairments which automatically qualify a student for protection under Section 504 and Title II?
No. An impairment in and of itself does not render a student eligible for protection under Section 504 and Title II. To be protected under Section 504 and Title II, an individual must have an impairment that substantially limits one or more major life activities.

Does a medical diagnosis of an illness automatically qualify a student for services under Section 504 and Title IL?
No. A medical diagnosis of an illness does not automatically qualify a student for services under Section 504 and Title II. The illness must cause a substantial limitation on the student’s ability to learn or other major life activities. This determination is made on a case-by-case basis.

A physician’s medical diagnosis may be considered among other factors in evaluating whether a student has an impairment that substantially limits a major life activity. Other factors that may be considered, along with the medical diagnosis, include aptitude and achievement tests, teacher recommendations, physical condition, and adaptive behavior.

Would a student with a food allergy be considered to have a disability under Section 504/Title II?
It depends. As noted above, determinations regarding whether a student has a disability within the meaning of Section 504 or Title II are made on a case-by-case basis. The relevant question would be whether the food allergy is a physical impairment that substantially limits one or more major life activities. For example, if a student has an egg allergy, and the only limitation associated with this impairment is a mild skin reaction, then that student’s egg allergy would not make the student an “individual with a disability,” because the impairment does not substantially limit a major life activity.

What services are available for elementary and secondary students with disabilities under Section 504 and Title II?
Public elementary and secondary school districts are required to provide a FAPE to qualified students with disabilities. A FAPE consists of regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met. An appropriate education for a student with a disability under the Section 504 regulations could consist of regular education with related aids and services, and/or special education and related services.

What are related services?
“Related services” is a term that is not specifically defined in the Section 504 regulation, although it is defined in the Individuals with Disabilities Education Act. The term is used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic and evaluation services and transportation. School health services, such as administration of medication, could also be considered an eligible related service, depending on the student’s needs.

Where can a school district, parent, or student get information on Section 504 and Title II?
For contact information for the OCR office that has enforcement responsibility in your state, or for more information regarding Section 504 and Title II and other laws OCR enforces, please visit the OCR Web site. The site also offers a variety of helpful documents and resources, including this FAQ about 504 plans.

Other 504 Plan Resources
Education and Advocacy Solutions, LLC, offers a variety of useful articles, including a detailed outline for creating a Section 504 Plan for food-allergic students.