Mis-identifying “504-only” students

Key points:

Section 504 of the Rehabilitation Act, which prohibits discrimination against students and other individuals with disabilities, is far less visible than the Individuals with Disabilities Education Act (IDEA) in school districts.  Largely neglected in comparison to the IDEA, it poses growing problems and hidden costs on the general education side of the ledger.  In comparison to students with IEPs under the IDEA, students eligible under only the overlapping coverage of Section 504 are the responsibility of general education.

The problems and costs start with mis-identification under Section 504’s definition of disability, which is broader than that under the IDEA.  Not limited to specified classifications, such as specific learning disability, or the need for special education, the requirements for Section 504 eligibility are (1) any physical or mental impairment that limits (2) a major life activity (3) substantially.  The students identified under Section 504 rather than the narrow eligibility definition of the IDEA are referred to as “504-only,” and they typically receive accommodations and services under a 504 plan as compared to an IEP.

“504-only” rates

The national rate of students with 504 plans has almost quadrupled in the past 15 years.  More specifically, in school year 2009–10, which was one year after Congress expanded the interpretive standards for determining eligibility under Section 504, the national percentage, according to data collected by the U.S. Department of Education, was 1.1 percent.  This percentage steadily increased, well beyond the effects of the Congressional amendments.  In 2021–22, which was the most recently released data from the Department, the national percentage was 3.9 percent.

This growth is attributable in part to the increase in the identified incidence of not only ADHD, dyslexia, and anxiety but also various physical health issues, such as diabetes and food allergies.  However, another major reason is the loose identification practices for “504-only” students.

Revealing not only resulting over- but also under-identification, for the most recent year of 2021–22, the rates varied at the state level from New Hampshire and Texas at almost double the national percentage to New Mexico and Mississippi at less than half that national rate.  California’s rate for that year was only 2.1 percent, but its variance was wide.  Its districts ranged from 0 percent to 13.9 percent, and schools ranged from 0 percent to 24.2 percent.  Districts and schools at the low end are particularly vulnerable to individual child find claim.  And one can only imagine what it’s like to be a general education teacher at a school for those at the high end in terms of paperwork, meetings, implementation, and resulting litigation.  Thus, both over- and under-identification warrant administrative attention.

Mis-identification costs and consequences

For over-identification, the hidden costs include not only providing related services, such as counseling and transportation, but also the time of teachers and administrators for meetings, forms, and potential complaint investigations, impartial hearings, and court proceedings.  Additionally, at a time of teacher shortage, high percentages of students with 504 plans contributes to current recruitment and attrition problems. Yet, unlike the IDEA, Section 504 provides no extra funding from either federal or state governments.  Thus, Section 504 implementation is part of the school district’s general education budget.  Moreover, along with under-identification, over-identification is a matter of social as well as legal justice, because it allocates limited school resources to students who do not really qualify and, thus, are false positives.  This hurts both the true positives (i.e., accurately identified) and the false negatives (i.e., should be identified).  The under-identified students pose a hidden cost of exposure to child find violations, which include attorneys’ fees and remedial orders.

Quick tips for district consideration

• Make sure that your administration annually collects and examines accurate information as to the percentage of students with 504 plans for the district as a whole and for the elementary, middle, and high school levels.  For percentages that are notably high or low in relation to extrapolated current national and state rates, extend the data collection and review to the identified impairments, major life activities, and the basis for the “substantial” connection between the impairment and major life activities

• Under the leadership of a designated central administrator, make sure that each school has a carefully selected, officially designated, sufficiently trained, and solidly backed Section 504 coordinator  In general, the principal or an assistant principal is the presumptively correct choice; yet, principals too often delegate this key role to a relatively inexperienced school counselor or other staff member who lacks appropriate expertise and authority for proper 504-only identification.    

• Make sure that the administration has uniform, effective, and legally defensible policies and practices that include:
  • Child find procedures parallel to those under the IDEA but keyed to the broader, three-part definition of disability under Section 504, which does not require educational impact or the need for special education.
  • Eligibility decision is by a team that meets the legal criteria of being reasonably knowledgeable about the child, evaluation data, and appropriate services/accommodations.
  • Regular training for the team, which includes legal updates on the identification procedures and criteria but also the longitudinal § 504-only rates for the district, school, and grade.

• Invest general education resources on multi-tiered strategies and supports, differentiated instruction, and responsive accommodations for students that do not clearly qualify for either IEPs or 504 plans.  The more that districts meet student needs with such practices on a reliable and reasonable basis, the less that problems of over- and under-identification tend to arise.