Update on Section 504: How Much Will Schools Pay for Compliance?

One of the most significant issues facing educators - including school business officials - is the cost of educating children, especially those with disabilities.

Children with disabilities are covered by two major federal laws: the Individuals with Disabilities Education Act (IDEA) (1998) and Section 504 of the Rehabilitation Act (1998). The IDEA requires public school systems to provide free appropriate public education to all children with disabilities.

As might be expected, the costs of delivering special education services can be high. The IDEA comes with the promise of financial assistance for school districts, but the funding it provides is inadequate.

Conversely, Section 504, which is almost as far-reaching in serving children with disabilities, does not offer any financial assistance to school systems. Under Section 504, districts must still make appropriate modifications to the educational environments of children with disabilities. However, the districts receive no federal financial assistance for having done so.

This article addresses some of the important issues Section 504 raises and is divided into two parts. The first part briefly reviews the main provisions of Section 504, The second part looks at some questions that arise when school systems try to confront the financial issues inherent in this law and how the added costs of compliance can affect operations.

An overview of Section 504 of the Rehabilitation: Act of 1973

On September 23, 1973, Congress passed the Rehabilitative Act in response to federal lawsuits safeguarding the educational rights of children with disabilities (one of which was Mills v. Board (if Education of the District of Columbia, 1972). This Act was the first federal civil rights law protecting the rights of the disabled.

Among its many provisions, Section 504 declares that “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…. 29 U.S.C.§ 794(a.), 1998).”

According to Section 504, recipients of federal financial aid must

• file an assurance of compliance;
• engage in remedial actions where violations are proven;
• take voluntary steps to overcome the effects of conditions that result in limiting the participation of students with disabilities in their programs;
• conduct a self-evaluation;
• designate a staff member, typically at the central office level, as compliance coordinator;
• adopt grievance procedures; and
• provide notice to students, and their parent that the school’s programs are nondiscriminatory.

Section 504 offers broad-based protection to individuals with disabilities. This brief article focuses on the rights of children, even though Section 504 covers both students and employees.

The Act defines an individual with a disability as one “who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment (29 U.S.C. § 706(7)(B), 1998).” Regulations further define physical or mental impairments as including

(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculosketetal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary;hemic and lymphatic; skin; and endocrine; or

(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disorders. 45 C.F.R. § 84.3(j)(2)(i), 34 C.F.R. § 104(j)(2)(i) (1998).

A note accompanying this list indicates that it merely provides examples of the types of impairments that are covered; it is not meant to be exhaustive.

In order to have a record of impairment, an individual must have a history of, or have been identified as having, a mental or physical impairment that substantially limits one or more major life activities. For example, a person with a history of hospitalization due to tuberculosis who currently tests negative could qualify as a person with a record of impairment.

An individual who is regarded as having an impairment has

1. a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation;
2. a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or
3. none of the impairments but is treated by a recipient as having such an impairment 45 C.F.R. § 84.3(j)(2)(iv), 34 C.F.R. § 104.3(j)(2)(iv) (1998).

Once a student is identified as having a disability, the next step is to determine whether he or she is, otherwise qualified.” In order to be qualified, as the term is applied to preschool, elementary, and secondary school students, a child must be “(i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (iii) [a person] to whom a state is required to provide a free appropriate public education (under the IDEA]. 45 C.F.R. § 84.3(k)(2) (1998 ).” Any individual who is “otherwise qualified” meaning that he or she is eligible to participate in a program or activity despite the existence of an impairment-must be permitted to participate in the program or activity as long as it is possible to do so by means of a “reasonable accommodation.”

Reasonable accommodations may involve modest adjustments, such as permitting a student to be accompanied in school by a service dog (Sullivan v. Vallejo City Unified School District, 1990). They may also involve providing basic health services that would allow a child with a physical impairment to be present in the classroom (Irving Independent School District a Tatro, 1984).

Further, in making a modification, a school does not necessarily have to make every classroom and or area of the building accessible. It may be sufficient to bring services to a child such as offering a keyboard for musical instruction rather than revamping an entire music classroom for a student who wishes to take piano classes. At the same time, at least one court has held that Section 504 does not require affirmative efforts to overcome a student’s disability but only prohibits discrimination on the basis of the disability (Lyons v. Smith, 1993).

Even if a child appears to be otherwise qualified, schools can rely on one of three defenses to avoid being charged with noncompliance. First, schools can be excused from making accommodations that would result in “a fundamental alteration in the nature of {a] program” (Southeastern Community College v. Davis, 1979, P. 410). This defense illustrates a major difference between Section 504 and the IDEA. Insofar as Section 504 does not provide funding for programs, a school can escape liability if a modification is too expensive. The IDEA requires school systems to provide programs regardless, of their cost.

Second, schools can escape compliance if a modification imposes an “undue financial burden[s]” (Southeastern Community College v. Davis, 1979, p. 412). The language of this ruling has since been incorporated in regulations pertaining to schools (45 C.F.R. §§ 84.31-39, 41-47 (1998) and other employers (45 C.F.R. § 84.12 et seq. (1998).

The third defense available under Section 504 is that an otherwise qualified student with a disability can be excluded from a program if his or her presence creates a substantial risk of injury to himself or herself or to others. For example, a child with poor vision may be excluded from a chemistry laboratory due to fear of exposure to flames on a Bunsen Burner. In order to comply with Section 504, a school may have to offer a reasonable accommodation, such as providing a computer-assisted program that accomplishes a goal similar to that of the laboratory class.

Section 504 also prohibits discrimination by requiring schools to make individualized modifications for otherwise qualified students with disabilities. This means that schools must provide aid, benefits, or services that are comparable to those provided to students who are not disabled. As such, the materials, teacher quality, length of school term, and daily hours of instruction must be comparable for children with and without disabilities. In addition, programs for students with disabilities should not be separate from those available to students without disabilities, unless such segregation is necessary for the program to be effective. If programs are permissibly separate, facilities must be comparable.

After being identified, each qualified student with a disability is entitled to an appropriate public education, regardless of the nature or severity of his or her disability. In order to guarantee that an appropriate education is made available, the regulations enacted pursuant to Section 504 include due process requirements for evaluation and placement similar to those under the IDEA.

Cost issues associated with Section 504

Insofar as Section 504 does not offer financial assistance to districts, school business officials and other educators need to be cognizant of the cost issues associated with it. As mentioned previously, educators will be responsible for paying the costs related to implementation of Section 504.

In other words, Section 504 requires districts to offer many of the same expensive programs and services as does the IDEA but does not provide additional federal funds (Rosenfeld, 1998). Under these circumstances, school business officials need to be attentive to the potential costs they are expected to absorb in complying with Section 504.

It is amazing that, to date, no specific frame of reference is available for school business officials to use in estimating the cost of Section 504 compliance. This is because data pertaining to compliance have not been reported. In fact, primary data indicate that states do not even have an accurate grasp on how many students are being served under Section 504.

To this end, Katsiyannis and Conderman (1994) surveyed states on a host of Section 504-related issues. They discovered that information of this nature has not been reported because “states indicated that there was no requirement for such statewide data collection” (P. 316). Consequently, it is virtually impossible to render an accurate report on the costs associated with Section 504.

Even if states knew exactly how many children were being served under Section 504, would educational leaders be able to develop a formula for calculating costs to their districts? This is a reasonable question to ask, considering the difficulties of accurately defining the various Section 504 costs and the myriad issues related to its implementation.

Further, even if a formula were available, would it be worth taking the time and effort to develop such figures when Section 504 does not provide aid for implementation? Perhaps one response would be that such data might help to build a case for assistance from the federal government.

Even though it is difficult to determine the overall cost of Section 504 compliance, educators should be able to readily calculate the expenses associated with providing tangible items to children with disabilities. For example, schools that offer free appropriate public education for these children should be able to easily identity the costs of technological devices and personnel (such as paraprofessionals, individuals who deliver related services, and a Section 504 Coordinator whose job may fit under a larger heading). Likewise, districts should be able to document the expenses they incur when they construct new facilities or modify existing ones, as well as the monies invested in training personnel about their duties under Section 504 and the cost of litigating disputes.

On the other hand, analyzing elusive hidden costs associated with Section 504 can be difficult. School personnel will spend varying amounts of time that may be hard to quantify on activities that ensure compliance with Section 504. Teachers and other school personnel typically are responsible for evaluating students, meeting with parents to determine whether a child is eligible for services under Section 504, writing Section 504 individual accommodation plans, and resolving disputes about the delivery of educational services. School personnel also spend time implementing and monitoring students’ progress on their individual accommodation plans through such tasks as modifying worksheets or documenting the administration of medication.

At first glance, it seems almost impossible to calculate all these costs accurately. They include not only the amount of time that staff members spend working directly with students but the amount of time spent planning and advocating for students’ needs. Add to that the cost of program modifications. Yet, if school officials are going to be able to plan and budget accordingly, they must have a way to get a handle on such costs because these are all expenses that districts incur as a result of Section 504.

Further, along with educational services, some medical services that may not have been required as related services under the IDEA may indeed be required under Section 504. Administrators must be mindful of their responsibility to offer these services and cover the additional costs (Wristen, 1997).

Similarly, Section 504 requires that eligible students be able to participate in nonacademic activities, such as athletics and clubs, that are school sponsored. (U.S. Department of Education, 1996). The IDEA does not have this requirement. Schools must be ready to absorb these costs as well.

Two additional cost issues related to Section 504—one an expenditure, the other a forfeiture - need to be considered. If they are not in compliance with the law, school districts, and ultimately states, may face the possibility of having to pay for compensatory education and damages as well as equitable relief in the form of additional services. Similarly, under extreme circumstances that have yet to be imposed, districts and states run the risk of forfeiting federal funds in other areas if they are noncompliant. However, before such a dire situation would arise, schools systems would be given ample opportunity to comply with the law.

One final cost issue must be addressed. As parents become more aware of the types of services available under Section 504, they may opt to rely on it rather than on the IDEA to meet the needs of their children (Wristen, 1997). From the parents’ perspective, Section 504 may be able to deliver most, if not all, of the needed IDEA-type services without the perceived negative stigma that often accompanies a categorical label such as “learning disabled” or being assigned to a special education placement.

Conversely, school districts may be reluctant to identify children under Section 504 because the schools will not be reimbursed for the additional costs incurred in delivering special educational services. It will be interesting to see how this tension plays itself out.

Conclusion

Federal laws guaranteeing students with disabilities free appropriate public education and prohibiting discrimination on the basis of their disabilities have provided these children with unprecedented access to: the public schools. At the same time, implementing these laws has created controversy. As a result of disputes between parents and school district officials, thousands of lawsuits have been filed since the early 1970s, making this one of the most explosive areas of school law.

School business officials and their districts should review the parameters of Section 504 and other appropriate laws to avoid costly mistakes, School districts will want to avoid unnecessary litigation that diverts funds away from their primary goal: the education of all children.