PJ56 Section 504 of the Rehabilitation Act/Americans with Disabilities Act (ADA) Compliance: Student

Procedure J56 description and definitions.

APS recognizes and supports the right of students to enjoy equality of treatment and access to opportunities in education. Our diverse student population is strengthened by its commitment to embrace all learners, including those with disabilities. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec.706(8) (“Section 504”) guarantees that students with disabilities can access a free appropriate public education (“FAPE”).

Once it has been determined that a student is a disabled student under Section 504 for purposes of FAPE, the school must provide whatever services it decides the student needs to participate in and benefit from its education program. As a general rule, the District is under no obligation to provide a service that a student’s parent(s)/guardian(s) and/or health care provider(s) requests unless, in the District’s determination, the student needs the service to participate in and benefit from its education program. A student performing consistently with peers may not need additional accommodations. On occasion, some services, accommodations, and/or modifications may require additional resources that the school alone is unable to provide. In these situations, the School’s 504 Coordinator will promptly communicate with the principal to ensure that necessary central support is available to ensure that the service and/or accommodation is provided by the District.

If a student qualifies for both an individualized education plan (IEP) and a 504, it is quite often appropriate to include the 504 accommodations, services, modifications, aids, etc. into the student's IEP and, whenever possible, the IEP Team should consider doing so. 504 Teams should consider a separate 504 plan, however, when students who are receiving special education pursuant to an IEP require a temporary 504 plan or when a family requests 504 accommodations that are not tied to support of the student in meeting their special education IEP goals. If there is any question about the IEP Team considering the appropriateness of a 504 accommodation request, staff should consult with their Exceptional Student District Specialist (ESDS) or other leader within the Special Education department.

Parent(s)/guardian(s) and/or school staff can refer a student for a Section 504 plan if they know or suspect that, due to a disability, the student needs accommodations to participate in or fully benefit from the District’s programs and activities.

A student does not have to have a formal medical diagnosis to be referred for consideration as a disabled student pursuant to Section 504. While it is very useful to have supporting information from a healthcare provider to consider as part of the evaluation process, families cannot be required to provide proof of a diagnosis to determine if a student is subject to Section 504.

A Section 504 Plan must be sufficiently detailed to allow teachers to address the individual needs of the student and should outline the specific modifications and accommodations, and/or other related aids and services to be provided to the student to ensure the ability to access FAPE. A 504 Plan will include what is reasonable and appropriate to ensure the student is able to fully participate in their school’s programs and activities, will not change or lessen the essential requirements of a class or program, and meets the needs of the school, teacher, and/or staff implementing the plan. The development of a 504 Plan should be interactive with parents/guardians, the student, and school staff and can be continuous. If a 504 Plan is implemented but is not providing the necessary support(s) for a student to access FAPE, the student, parents/guardians, or school staff can request a review of the 504 Plan to re-assess and consider different supports, accommodations and/or modifications. A 504 Plan should be reviewed annually, at a minimum, but will remain in effect once it is implemented.

If an APS employee is also a parent or guardian of a student in need of a 504 Plan, that APS employee may not act in their capacity as an employee throughout the evaluation, creation, and administration of any 504 Plan or associated accommodations or supports for their own child.

It is considered best practice to encourage students to attend their meetings to provide input about their disability, experience in the educational setting, and support(s) that they find helpful. As with students with disabilities who have an IEP, students at fourteen (14) years of age should participate in meetings and transition planning (consistent with Individuals with Disabilities Education Act requirements).

Once the student reaches the age of eighteen (18), all rights accorded to the parents/guardians transfer to the student. As a result, once the student is eighteen (18), they must be invited to attend all Section 504 meetings and be given all correspondence unless the parents/guardians have taken steps to become the student’s educational guardian and/or the student has provided express written consent for the parents/guardians to be invited to attend team meetings and/or receive copies of all correspondence. The parents/guardians do not retain the right to review the student’s educational records after the student reaches the age of eighteen (18).

If a disabled student’s misconduct is a manifestation of their disability, the District cannot implement a disciplinary action that constitutes a significant change in the student’s placement. If a disabled student’s misconduct is not a manifestation of their disability, the District can discipline the student in the same manner that it disciplines non-disabled students for the same misconduct. Under Section 504, unlike IDEA, the District does not have to provide a disabled student educational services during the period of time the student is properly removed from school for disciplinary reasons. However, disabled students must be given the same access to services that are available to non-disabled students who are long-term suspended or expelled, including access to re-entry programs.

Protections for Students Not Yet Eligible for Section 504 or the IDEA

A student who has not been evaluated and made eligible for Section 504 protection may assert any of the protections provided for in these procedures if the school and/or the District had knowledge that the student was possibly eligible for Section 504 accommodations before the behavior that precipitated the disciplinary action occurred. There are additional specific Special Education regulations that come into play if such an assertion is made. Please consult SE1 Administrative Procedure for Special Education if this issue arises in your school.

A Behavior Intervention Plan (BIP) should be a part of a student's Section 504 Plan if the student’s behavior substantially interferes with the ability to learn in the regular classroom.
Students who are undergoing the Student Assistance Team (SAT) process are still eligible for a 504.

A temporary impairment (with an actual or expected duration of six months or less) is a disability under Section 504 if it is severe enough that it substantially limits a major life activity for a student. The duration (or expected duration) of the impairment and the extent to which it limits a major life activity for a student should be the key considerations. An impairment that is episodic or in remission (i.e., cancer, multiple sclerosis, epilepsy) constitutes a disability under Section 504 if it substantially limits a major life activity for the student when active.

The District will provide non-academic and extracurricular services and activities in such a manner as is necessary to afford disabled students an equal opportunity for participation in such services and activities. A school must provide disabled students an equal opportunity to participate in extracurricular activities. As a general rule, a school can impose eligibility requirements to participate in extracurricular activities as long as they are neutral on their face with respect to disability, essential to the activity in question, and applied equally to both disabled and non-disabled students alike. A school may be required to modify an eligibility requirement if the requirement discriminates against the student in question based on disability and modification of the requirement would not fundamentally alter the nature of the activity in question. For example, a school may establish a grade/credit eligibility requirement for participation in an extracurricular activity. If a disabled student wants to participate in the activity and the school determines that the student is unable to satisfy the eligibility requirement because of their disability, the school must modify the requirement to enable the student to participate unless doing so would fundamentally alter the nature of the activity.

Accessible instructional materials must effectively provide the same information that other instructional materials provide. Under Section 504, schools must provide instructional materials in alternative formats to a student with a disability if the student needs them to learn. Accommodations change how a student learns the material. An accommodation allows a student to complete the same assignment or test as other students but with a change in the timing, formatting, setting, scheduling, response, presentation, or a combination of these. Modifications do not change what a student is taught or expected to learn.

If a student or their parent/guardian is not satisfied with a 504 Plan’s accommodations or its implementation, they should first request an updated 504 Plan meeting with the school’s administration. If the school and student or parent/guardian still do not agree on a 504 Plan, they may then contact the District 504 Coordinator to request the District review and determine the items in the 504 Plan and any next steps needed to fully implement the plan at the school. If there is still no agreement, then the 504 coordinator will follow up with the student and parent/guardian in writing with the options discussed for reasonable accommodations under the 504 Plan. The student and parent/guardian may then choose to accept the 504 Plan offered, request an appeal from the 504 Coordinator, or file a complaint with Equal Opportunity Services.

To appeal, the student and parent/guardian should provide, to the 504 Coordinator, in writing, the 504 Plan given by the 504 coordinator along with the reasons why these accommodations will not sufficiently enable the student to fully access FAPE or to enjoy full and equal access to the school, class, program or activity. The student and/or parent/guardian shall have ten (10) days from the date of the 504 Coordinator’s written decision to submit an appeal in writing. The appeal panel will review this information and reverse, modify, or affirm the position of the 504 coordinator. The appeal panel shall have fifteen (15) working days from the date of the receipt of the appeal to inform the student and parent/guardian of the decision in writing. After such an appeal, Albuquerque Public Schools shall consider the appeal process concluded.
If the student and/or parent/guardian chooses to file a complaint for a failure to accommodate or has any complaint regarding the 504 process or regarding any discrimination or retaliation related to a disability, that person should contact the Equal Opportunity Services Office to follow the EOS grievance/complaint process.
Even after submitting an appeal, a complaint, or finalizing a 504 plan, a student and/or parent/guardian may re-initiate the 504 process to address new strategies, information, or accommodations at any time.
At any time, students, parents/guardians, employees, and/or community members may contact an outside agency, such as the Office for Civil Rights in the Department of Education or the NM Human Rights Bureau, to discuss their options, rights, responsibilities, and/or file a complaint of discrimination with those agencies.

Definitions

“Section 504 of the Rehabilitation Act of 1973 (“Section 504”)” is a Federal civil rights law that is designed to eliminate disability discrimination in programs and activities that receive Federal funds. Since all public school districts receive Federal funds, all public school districts must comply with Section 504. Under Section 504, denying a disabled student a free appropriate public education (“FAPE”) constitutes disability discrimination.

“Students Eligible under Section 504” - Any school-aged student who has a mental or physical impairment that substantially limits one or more major life activities qualifies under Section 504.

“Reasonable Accommodations for an educational environment” - must ensure academic success and access to the learning environment.

“Physical or mental impairment” means any physiological or psychological disorder or condition. The definition of physical or mental impairment under Section 504 is broad, and includes students with life-threatening health conditions (conditions that will put a student in danger of death during the school day if a medication or treatment order and/or a nursing plan are not in place), and is not limited to any specific diseases or categories of medical conditions. Addiction to drugs or alcohol may be a physical or mental impairment that may result in a student being eligible for Section 504. A temporary impairment (with an actual or expected duration of 6 months or less) is a disability under Section 504 if it is severe enough that it substantially limits a major life activity. A physical or mental impairment substantially limits a major life activity for a student if the impairment substantially limits the student’s ability to perform a major life activity as compared to the student’s non-disabled age/grade peers. There is no single formula or scale that measures substantial limitations. An impairment need not prevent, or significantly or severely restrict, a student in performing a major life activity to be considered substantially limiting. Major life activities 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, communicating, immune system function, normal cell growth function, digestive function, bowel function, bladder function, neurological function, brain function, respiratory function, circulatory function, endocrine function, and/or reproductive functions. The ability to participate in and benefit from school is a major life activity for a school-aged student. The above list of major life activities is not exhaustive.

Mitigating measures used by a student with a disability to manage their impairment or lessen the impact of their impairment (i.e., medication, medical devices, related aids and/or services, etc.) must be disregarded when determining whether a student’s impairment constitutes a disability under Section 504. Section 504 does apply to preschool students with disabilities enrolled in a District or Federally funded preschool. The Individuals with Disabilities Education Act (“IDEA”) requires that preschool students with disabilities be provided FAPE. Preschool students with disabilities or suspected disabilities most of the time are referred to the Special Education Department. Students with disabilities pursuant to Section 504 include students who are eligible for Special Education. The difference is that students who are eligible for Special Education are in need of specially designed instruction as a result of a disability that is impacting their ability to access education. Whenever possible and appropriate, the IEP should subsume a 504 plan so that all the medical supports, reasonable accommodations to learning, and reasonable accommodations to access all programs, services, activities, and facilities are available to the student in the most efficient manner.

Administrative Position:

Deputy Superintendent of Leadership and Learning
Chief Academic Officer

Department Director:

Senior Director, Risk Management
Senior Director, Equity and Engagement
Director, Equal Opportunity Services and Title IX
District 504 Coordinator

References:

Legal Cross Ref.:

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
Individuals with Disabilities Education Act, 20 U.S.C.§ 1400 et seq.
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.
New Mexico Human Rights Act, NMSA 1978 § 28-1-1 et seq.

Board Policy Cross Ref.:

Administrative Procedure Cross Ref.:

Forms:

NSBA/NEPN Classification: ACE

Introduced: December 20, 2024

This page was last updated on: December 20, 2024.