Caryl Andrea Oberman, Esq.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794(a), (“Section 504”) is a powerful federal antidiscrimination statute, modeled after the Civil Rights Act and sharing its language.  Section 504 bans discrimination on the basis of disability in programs and activities receiving federal funds. The subsequent passage of the Americans with Disabilities Act (“ADA”), 42 U.S.C. Section 12101, extended many of the protections of Section 504 to the private sector providing public access.  Congress has made clear that those protected under the two statutes are the same.  After the United States Supreme Court determined in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and Toyota Motor Mfg. v.  Williams, 534 U.S. 184 (2002), that Congress had intended to reserve the protections of ADA only for those whose disabilities continued to limit one or more major life activities even after remediation (e.g., diabetics whose symptoms are not controlled by insulin), Congress in its 2008 reauthorization of the statute as the Americans with Disabilities Act Amendments (“ADAA”) unequivocally informed the Court, and the nation, that it intended and had intended all along that the protections of the statute be provided to those with disabilities regardless of the existence of remediation (e.g., diabetics whether or not their symptoms are controlled by insulin). 1

For years, Section 504 of the Rehabilitation Act of 1973 as it applies to education has been viewed as a kind of “IDEA-lite”.  Students with disabilities who did not quite qualify for IEPs were often given Section 504 service plans as a kind of consolation prize.  Students with disabilities like diabetes, allergies and seizure disorders, to name but a few, were often given neither, but rather had their needs addressed to a greater or lesser extent by mechanisms like individual health plans, nursing instructions or simple good will.  Unlike IEPs and Section 504 Service Plans, those mechanisms are developed through no defined formal process, generally lack any effective mechanism for enforcement, and provide no real remedy for failure of delivery or effectiveness.

Now that the eligibility of students for protection under the ADAA, and thus under Section 504, has been clarified by Congress (and expanded from the Supreme Court’s restrictive interpretation), students previously served by those mechanisms are entitled to evaluation to determine whether they require Section 504 Service Plans.   The Office for Civil Rights (OCR) has taken the position that a school district’s provision of an individual health plan to a student with diabetes without evaluating that student for a Section 504 service plan is a violation of the district’s child-find mandate.  Tyler (TX) Indep. Sch. Dist., 56 IDELR 24 (OCRVI, Dallas (TX) 2010).  (In that case, the parent claimed that the student was missing instruction because of being pulled from class to receive insulin shots).

Why does it matter whether accommodations and modifications for a student with a disability are defined in a Section 504 Service Plan or in some other way?  It matters because of procedure, and because of the availability of remedies.

Procedurally, Section 504-eligible students are entitled to evaluation; written and enforceable service plans developed in conjunction with their parents; access to a due process system, including an impartial due process hearing, to challenge or enforce their plans (in Pennsylvania, under 22 Pa. Code Chapter 15, essentially the same due process hearing procedures as those available for IDEA claims), access to the federal courts, and access to the federal complaint system through OCR.  Remedies for failure to provide or deliver adequate Service Plans include prospective relief, compensatory education, parental reimbursement, attorneys’ fees, expert witness costs, and, in appropriate cases, money damages.  See A.W. v. Jersey City Public Schools, 486 F. 3d 791, 804 (3d Cir. 2007)(“The remedies for violations of Section 504 are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.  These remedies include compensatory damages, injunctive relief, and other forms of relief traditionally available in suits for breach of contract,” (citations omitted)).

Punitive damages are not available under Section 504, Barnes v. Gorman, 536 U.S. 181, 189 (2002), and money damages are likely only available for intentional, rather than merely negligent, violation of the Rehabilitation Act.  However, the degree of intentional conduct (“deliberate indifference” or “reckless disregard”) necessary to establish a claim for damages may not be very high.  In L.T. v. Mansfield Twp. School District, 2009 WL 737108 (D.N.J.) (3/17/2009), it was sufficient that the district knew in late April that the child required a placement and could no longer be transported to his previous placement by his mother, and yet had no appropriate program and placement for the student in September of the following school year.

Congress has now definitively taken an expansive view of those entitled to Section 504 protections. With the increased availability of effective remedies and procedures, and the availability of fee-shifting (attorneys fees) and expert witness cost reimbursement to successful plaintiffs, it is reasonable to anticipate an increase in due process claims and court cases related to allergies2, diabetes, seizure disorders, gastrointestinal disorders, ADD/ADHD, and other conditions in schools.  A school district’s best defense against such actions is good communication with parents, prompt and appropriate evaluation, effective 504 plans, and procedural compliance.

1 For a recent troublingly restrictive view of disability under Section 504, see Weidow v. Scranton School District, 56 IDELR 11 (M.D. Pa. 2011).