The U.S. Department of Education’s Office for Civil Rights (OCR) has announced that it intends to propose amendments to its regulations under Section 504 of the Rehabilitation Act of 1973, the landmark disability civil rights law. The Department is seeking suggestions from the public to help identify proposals that will best improve current regulations at 34 C.F.R. Part. 104. Interested parties may go to to submit suggestions.


  • OCR should revise the terminology used in the current regulations from “handicap” or “handicapping condition” to “disability” and other outdated language.
  • The ADA Amendments Act provisions must be explicitly integrated into the Section 504 regulations.


34 CFR Part 104 Subpart D – Preschool, Elementary, and Secondary Education

§104.31 Application of this subpart.

  • Charter schools

Revised regulations should explicitly state that all public schools, including public charter schools, public virtual schools, and typical public schools, as well as any non-public schools that receive federal financial assistance directly or indirectly, are bound by the provisions of Section 504, and that students with disabilities (and those seeking to attend) in these institutions have the same Section 504 rights as other public school students with disabilities. See, for example,   

  • Online/virtual schools

Revised regulations should explicitly identify that Section 504 applies to a public online school operated statewide by a public school district via contract with a private entity. (See Quillayute Valley (WA) School District, 49 IDELR 293 (OCR 11/26/07); see also Elkhart (KS) Unified School District 218, 51 IDELR 51 (OCR 3/26/08) Online school operated by school district and available to students across the country required to inform students of the procedures to request accommodations and should be able to provide, at a minimum, modifications to the regular education program including test taking and assignment deadlines).

  • Non-public schools

Further to the above, there is wide spread misunderstanding that private schools are exempt from Section 504. To address this, revised regulations should make clear that non-public schools, such as private schools including religious schools, that accept ANY form of federal financial assistance are required to adhere to Section 504. Federal financial assistance includes such funds as free and reduced lunch program, any funding program under the ESEA (Title I, etc.), IDEA grants. Providing a non-exhaustive list would help further understanding of this provision.

  • Juvenile Justice facilities

Revised regulations should explicitly identify that all juvenile justice residential facilities and any other entities that receive Federal funds–either directly or indirectly through another State or local agency–and that provide educational services in such facilities are subject to Federal civil rights laws including Section 504. See

  • Before and after-school programs & summer programs

Revised regulations should include specific language indicating that before and after-school and summer programs operated by, and/or functioning on the premises of, and/or advertised by a school or district as the school or district’s before and after-school or summer program, are bound by Section 504 even if they are run by a non-district entity and even if that entity itself does not receive federal financial dollars. The regulations must specify that districts may not provide significant assistance to outside entities such as before and after-school programs and summer programs if those entities discrimination, even if that outside entity is not covered under Section 504.

§104.32 Location and notification

  • Child Find

This is a critical area for regulatory strengthening. Data from the Civil Rights Data Collection (CRDC) indicate a serious lack of compliance with §104.32. Disability advocates have attempted to highlight the evidence of serious violations as indicated by the CRDC. See,

The current regulatory language is too cursory to provide sufficient information to families, students, schools and districts of the requirements for identification/child find under Section 504: “A recipient that operates a public elementary or secondary education program or activity shall annually: (a) Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient’s duty under this subpart.” In addition, this language could be interpreted to mean that a school or district only has to identify and locate potentially eligible students, or notify students with disabilities and their parents of their duty to do so, only once a year. To address this problem, the regulations must contain stronger language regarding the obligation of districts and schools to identify all potentially eligible children. Information about Section 504 and how to ask for 504 services must be shared in multiple ways with parents and on an ongoing basis. All staff must be aware of their obligations to identify all potentially eligible students. Section 300.111 of the Individuals with Disabilities Education Act (IDEA) regulations provide some guidance for this language: “The State must have in effect policies and procedures to ensure that – all children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State…regardless of the severity of their disability…are identified, located, and evaluated; and a practice method is developed and implemented to determine which children are currently receiving needed special education and related services…Child find also must include – children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade; and highly mobile children, including migrant children.” Note: Since the obligation for child find under Section 504 rests with the school/district, “State” in the above example should be replaced with “school and LEA.”

§104.33 Free appropriate public education

Across the nation, there is a major misunderstanding among schools and districts that only accommodations can be provided under Section 504. This is in direct conflict with the current regulatory language at
§104.33 (b).

Therefore, revised regulations must provide explicit language that both regular and special education services and related services as well as accommodations and nonacademic and extracurricular activities available to students with disabilities are available under Section 504 and at no cost to families except to the extent that there are fees that are imposed on all students and families including those without disabilities.

  • Compensatory Services Under Section 504

OCR should make clear in revised regulations that compensatory services can be awarded under Section 504. See

§104.34 Educational setting

  • Online/Remote/Virtual Instruction

Revised regulations should include specific language that Section 504 should not prevent any school from offering educational programs through distance instruction. See

§104.35 Evaluation and placement

  • Parent Consent for initial evaluation

OCR’s interpretation that Section 504 requires informed parental consent for the initial evaluation must be included in revised regulations. In addition, revised regulations should require such parental consent to be in writing, as well as any district notification regarding evaluation.

  • Requirements for evaluations

Revised regulations should include detailed information on (a) the need for qualified evaluators to do the evaluations, (b) the requirement for a timely evaluation (with a reasonable timeframe), (c) the right of parents to be part of the team that determines whether an evaluation will be conducted and if so, what it will entail, (d) the need to ensure that evaluations use tools and are conducted in ways that do not result in inappropriate identification or disproportionality, (e) that all evaluations must be conducted at no cost to the families and that families cannot be required to fund/produce their own evaluations, and (f) that any information, evaluations, etc. that parents bring to the Section 504 meeting must be reviewed and considered as part of the evaluation.

OCR guidance indicates that, if a child is not eligible under IDEA, the school/district must consider potential eligibility under Section 504. This should be explicitly included in revised regulations, as should OCR guidance that a district may not simply refuse to evaluate a child.

Revised regulations should also make clear that schools/districts should consider providing 504 eligibility for students with health conditions rather than providing such students with “health plans” which do not provide the same level of protection and procedural safeguards.

Independent Educational Evaluation

Revised regulations should address the right to an independent educational evaluation at public expense including frequency, etc.

Non-Discrimination/Access Issues

  • Access to Accelerated Programs

Students with disabilities are routinely denied the opportunity to participate in accelerated programs such as Advanced Placement and International Baccalaureate classes or programs. OCR’s 2007 Dear Colleague Letter indicates that the practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates Section 504. Revised regulations must explicitly address this. (See  

  • Access to Electronic Book Readers

Revised regulations should explicitly include language about the need to provide access to assistive technology including electronic book readers among other AT devices and tools in the regulations. See

  • Access to Extracurricular Athletics

OCR’s interpretation of Section 504 that students with disabilities must have an equal opportunity for participation in nonacademic and extracurricular services and activities should be explicitly included in revised regulations. See

  • Access to an education during public health emergencies

School officials have an obligation to avoid discrimination on the basis of disability under Title II and Section 504, while cooperating with public health authorities to ensure that students with disabilities have access to the school’s education program. This should be addressed in revised regulations. See

  • Bullying & Harassment

OCR should explicitly indicate in revised regulations that bullying of a student on the basis of his or her disability may result in a disability-based harassment violation under Section 504. See

  • Discipline protections: Manifestation determination, functional behavioral assessment, positive behavior support, limitations on exclusions (consecutive or a series of short-term)

Revised regulations should clarify requirements to conduct manifestation determination reviews and also to identify exclusion from school for more than 10 consecutive school days or for a series of short-term removals if the total days are more than 10 school days and there is a “pattern” of exclusion. OCR considers an exclusion from the educational program (for example, an out-of-school suspension) of more than 10 consecutive school days to be a significant change in placement. OCR also considers a series of short-term exclusions (each 10 school days or fewer) from the educational program to be a significant change in placement, if the short-term exclusions total more than 10 school days and create a pattern of removal.  (See Parent and Educator Guide to Section 504: Revised regulations should explicitly address this.

Note: In Springfield School District #186, 55 IDELR 206 (OCR June 29, 2010), the Office for Civil Rights determined that a school district violated Section 504 when it expelled a student with a 504 Plan without conducting a manifestation determination.

OCR should specifically address the use of restraint and seclusion by school districts as behavior/actions that may result in discrimination against students with disabilities, thereby violating Section 504. In many states, the only students who are allowed to be restrained or secluded are students with disabilities, which on its face should be discrimination and a violation of Section 504. See

OCR should include in revised regulations language indicating that all Section 504 plans and all communication related to Section 504 plans, such as notice of 504 meetings, must be in writing. Currently, OCR has indicated its position that schools may incorporate a 504 plan into a written document but are not required to do so. (See Parent Educator Resource Guide,

This approach makes it virtually impossible for families to participate effectively in the process, or even to know what is contained in the 504 plan and how to ensure that the necessary services are implemented. It is also unrealistic to expect teachers and other school staff to be able to implement a plan that is not in writing.

Since current regulations state that implementation of an IEP is one means of meeting the FAPE standard (104.339b)(2)) revised regulations should, at a minimum, require that the provision of FAPE require a written plan.

OCR should also include in revised regulations the requirement for parent participation in the development, updating, and/or revision to the 504 plan, and a requirement for at least annual review and revision, as necessary, of the 504 plan. Currently, OCR “urges” schools to allow for parental participation when considering any change in the student’s Section 504 provision of FAPE, including location of services, but does not require it. This minimizes the critical role of parents in the decision-making process and makes it less likely that the decisions that are made, including the contents of the 504 plan, will be appropriate and meet the needs of the student with a disability. Additionally, revised regulations should require the participation of the student with a disability starting no later than transition age and certainly when the student becomes an adult.

  • Transition – Legal Rights and Responsibilities of Students with Disabilities as They Transition from High School to Institutions of Postsecondary Education

OCR is encouraged to incorporate requirements regarding the critical transition from school to adult life in revised 504 regulations, including a requirement for schools to coordinate and collaborate with state and local adult service providers/systems and assisting students to connect with those adult services providers/systems. This will help avoid the current situation where students with disabilities who are not covered under IDEA are not aware of their potential eligibility for Section 504 protections in post-secondary education or the availability of adult services from agencies such as vocational rehabilitation. See

§104.36 Procedural safeguards

  • Impartial hearing/complaints

Revised regulations should make clear that 504 eligible students maintain their current placement during the pendency of any impartial hearings requested by the parents (i.e., stay-put).

  • Burden of proof

Revised regulations should include language indicating that the burden of proof to demonstrate compliance with the requirements of Section 504 is on the school/district and not the parent, as the school/district is the entity that has access to all the documents needed to show compliance, and further, the district commits to complying with Section 504 as part of its receipt of Federal funds.

  • Parent participation in decision-making

Revised regulations should significantly strengthen the procedural safeguards, including requiring informed, written parental consent for evaluations and at least the initial 504 plan; written notification of parental rights including the right to participate in all meetings related to Section 504 eligibility, evaluation and identification, and plan development and revision.

34 CFR Part 104 Subpart E Postsecondary Education

§ 104.42 Admissions and recruitment

Require institutions to give “considerable weight” to documentation of both disability and the auxiliary aids and services previously provided (such as an IEP, 504 Plan, and/or Summary of Performance), and expand to non-examination contexts such as course, eligibility, and school services.

34 CFR Part 104 Subpart C Accessibility

  • Building Accessibility (§104.23)

The regulations must be amended to clarify that building accessibility must meet the ADA accessibility requirements, keeping in mind the post-1977 construction standards that buildings must, to the maximum extent feasible, be readily accessible to and usable by persons with disabilities including not only students but also families and staff.