The parents of a 10th-grade student contact your school’s Section 504 coordinator seeking extra time for their student to take the SAT. As the basis, they report that their child is taking a prescription medication, Ritalin, before and after school for ADHD. This situation is neither new nor uncommon. Variations may include the ACT rather than the SAT, and other medications or diagnoses, such as various anxiety disorders and even diabetes.

Section 504 of the Rehabilitation Act provides a different and generally broader definition of disability than the Individuals with Disabilities Education Act (IDEA). The three criteria, which are all essential under this definition, are (a) physical or mental impairment, (b) major life activity, and, directly connecting the first two criteria, (c) substantial. Unlike IDEA eligibility, the impairments are not limited to a relatively small set of specified classifications; the affected activities are not limited to academic areas, and the ultimate essential is not the need for special education. Moreover, the Americans with Disabilities Act (ADA) amendments of 2008 and the resulting ADA regulations of 2016 broadened the standards for eligibility under Section 504 in significant ways, such as (1) expanding the identified examples of major life activities—such as reading, concentration, manual tasks, eating, and bowel functions—and (2) requiring the determination of the “substantial” criterion without mitigating measures, such as medication.

Prevalence Rates

According to the latest data from the U.S. Department of Education (ED), which is for the 2015–16 school year, approximately 13 percent of K–12 students had IDEA IEPs (the national average), and the corresponding average for so-called “504-only” students was 2.3 percent. During the 2009–10 school year (when ED started collecting 504-only data), the IDEA rate was slightly higher, but the rate of students with 504 plans has more than doubled from approximately 1 percent. Recent analyses of the 2015–16 data reveal wide variance among and within the states, with overidentification increasingly evident in various school districts. For example, 20 schools with enrollments of more than 250 students had rates more than 10 times the national average.

Role of SAT and ACT

The contributing factors to increasing rates of 504 plans include not only wealth and race, but also local and school culture. In litigious areas of the country, particularly in schools with competitive upper-income parents, the opening factual scenario illustrates the motivating role of extra time on the SAT or the ACT. Moreover, as more states are moving to use the SAT or the ACT as the academic achievement measure for district and school accountability under the Every Student Succeeds Act, the push for competitive advantage may also come from school leaders.

The respective testing organizations that publish the SAT and the ACT have oscillated in their policies and practices as to whether a 504 plan, as an alternative to an IEP, sufficed for obtaining extra time or other accommodations. For example, in the wake of its 2002 settlement of a suit to discontinue “flagging”—or identifying with an asterisk—the SAT scores reported to colleges for students who received testing accommodations, the College Board tightened the criteria for obtaining such accommodations. As a result, according to Harvard researcher Samuel J. Abrams, “the College Board [gave] new opportunities to the strategic, while leaving behind the less savvy and less financially well-endowed [parents].”

More recently, the ADA regulations of 2011 for private organizations provided specific requirements for testing. For example, the applicable regulations require private testing organizations to accord “considerable weight” to accommodations in IEPs and 504 plans. The related guidance of the Department of Justice (DOJ) specifies that the testing organization should “generally accept” documentation from a qualified professional that supports the need for the accommodation. In January 2015, as a result of the DOJ investigations into persistent complaints of rejected accommodations for the SAT and the ACT, the organizations changed their policies to allow almost automatic approval of accommodation requests based on 504 plans or other such documentation.

Practical Concerns and Suggestions

For schools that encounter significant pressures for 504 plans to obtain extra time on the SAT or ACT, the reasons for avoiding increased overidentification rates under Section 504 include the following:

  1. Section 504 is an unfunded mandate, meaning that—unlike the IDEA—neither the federal nor state government provides any extra funds for students with 504 plans.
  2. The easy access to extra testing time via Section 504 (a) increases rather than reduces the gap between the privileged and the disadvantaged; (b) is only the first, enabling step in escalating expectations for 504 plans and their contents, whether for more and more time, other accommodations, or related services, such as occupational therapy and individual counseling; and (c) research suggests that extra testing time may not be in the immediate or long-time educational interest of the student.
  3. After the student receives a 504 plan, it is rare that the districts carefully review the plan, and as a result, reduce the contents or exit the student from eligibility.
  4. High rates of 504 plans pose legal vulnerability to Office for Civil Rights complaints and litigation, including impartial administrative hearings, for (a) claims of failure to implement 504 plans and, alternatively, (b) IDEA child fund claims that 504 plans that include educational impact are “red flags” for evaluation for possible special education eligibility.
  5. High rates of 504 plans also change the culture from trust, partnership, and general education interventions to formal legalization and the attendant reallocation of limited school budgets to the associated transaction costs.
  6. For schools that assess these reasons as overriding the countervailing interests, what steps might school leaders take to stem or reverse the tide of overidentification? The following suggestions merit careful consideration and customization based on legal, pedagogical, and political concerns at the district and school level:

General Suggestions for 504 Identification

  • Identify an effective 504 coordinator and a knowledgeable eligibility determination team at the building—not just district—level.
  • Provide support and accountability to assure that the 504 coordinator and 504 eligibility team members are aware and compliant with current legal requirements.
  • Implement legally defensible and comprehensible eligibility and procedural safeguard forms that are kept updated and train related personnel regularly.
  • Foster articulation between the elementary and secondary levels and, in larger districts, among the schools within each level for consistency of the criteria and their application.
  • Avoid using 504 plans as a “consolation prize” for parents of students who do not qualify for an IEP or as a spillover to keep numbers down under the IDEA.
  • Promote a general education system that partners with parents to be responsive to individual differences such that the accommodations and interventions associated with 504 plans are widely available and in the best interests of students.

Specific Suggestions for 504 Identification

  • For impairments, avoid accepting general symptoms alone, such as anxiety, depression, or absenteeism, in favor of specific diagnostic classifications.
  • For major life activities, avoid otherwise relevant student issues, such as organizational skills, processing speed, fine motor skills, and handwriting, that are either subsets of the identified examples in Section 504 or narrower than its common broad scope.
  • For the third and ultimate criterion of substantial limitation, focus on (1) duration, not only the requisite degree; (2) the frame of reference of the corresponding level in the general population, not the potential of the individual child; and (3) the direct connection of the identified impairment as compared to other sources affecting the identified major life activity.
  • For students who do meet all three of the requisite criteria, limit the accommodations or other services to those necessitated by the identified impairment and its direct connection to major life activity without mitigating measures.
  • Review the 504 plan regularly, including (a) not only whether the teachers provide accommodations but also that the student uses the specified accommodations, and (b) whether the student continues to meet the current standards for 504 plan eligibility.

In sum, determining eligibility for 504 plans and the resulting accommodations, including extra time on high-stakes tests, is much like the rest of education leadership—it’s not easy, but essential. The legal boundaries for 504 eligibility are not scientifically precise, bright lines, but the practice of saying “yes” for the seemingly no-cost purpose of extra time on the SAT or ACT is clearly questionable both for the sake of the student and the school system. The answer instead should be a careful “it depends” on the individual and relevant circumstances, which may lead to a result that is not necessarily the expected one.

Perry A. Zirkel is university professor emeritus of education and law at Lehigh University in Bethlehem, PA.

Editor’s Note: The last part of this article is excerpted, with permission, from a longer legal analysis, which includes underidentification, in West’s Education Law Reporter, which is available at the author’s website, http://perryzirkel.com.