The Schoolyard Lawyer: What if my Child is Not Eligible for Special Education?


If your child has been found not eligible for Special Education services under the Individuals with Disabilities Education Act (IDEA), he or she may still be eligible under Section 504 of the Rehabilitation Act of 1973 (Section 504). Section 504 prohibits discrimination against eligible individuals with a disability by providing them with free, appropriate services and accommodations to ensure equal access to education.

If found eligible, students will receive accommodations and/or services under Section 504. Accommodations do not have to be major services provided by the school system. Instead, they can be as simple as moving the child to the front of the classroom or giving the child extra time to complete tests and assignments. Parents and school staff need to remember that fairly routine minor modifications can help a child succeed.

Section 504 is a good option for children who are not on an IEP and have been denied Special Education services. Therefore, qualified students under Section 504 can receive services and accommodations regardlessof whether the student needs special education. Further, Congress recently added a number of major life activities to the list, making Section 504 applicable to more individuals in need of services and accommodations.

The analysis used to determine eligibility under Section 504 is as follows:

1. Does the school or program receive some sort of financial assistance?

  • In order for a child to be eligible under Section 504, the school or program must receive federal financial assistance.
  • All public schools receive federal financial assistance and some private schools do as well.

2. Is the child otherwise qualified?

  • All school-age children are “otherwise qualified.”
  • If the child is post-secondary, he or she must meet the standards for admission to the school or program to be otherwise qualified.

3. Does the child have a disability?

This is a two part test. First, the child must have a physical or mental impairment. This could include:

  • Respiratory
  • Speech
  • Digestive
  • Cardiovascular
  • Reproductive
  • Skin
  • Physiological disorder or condition
  • Cosmetic disfigurement
  • Anatomical loss
  • Musculoskeletal
  • Special sense organs
  • Or other mental or psychological disorder such as mental retardation (now referred to as intellectual impairment), organic brain syndrome, emotional or mental illness, or a specific learning disability.

Second, the disability must substantially limit a major life activity. “Substantially limit” means that the child is unable to perform compared to the average person. Major life activities include:

  • Caring for oneself
  • Performing manual tasks
  • Seeing
  • Hearing
  • Eating
  • Sleeping
  • Walking
  • Standing
  • Lifting
  • Bending
  • Speaking
  • Breathing
  • Learning
  • Reading
  • Concentrating
  • Thinking
  • Communication
  • Working

In addition, major life activities include major bodily functions, such as:

  • Immune system
  • Normal cell growth
  • Digestive
  • Bowel
  • Bladder
  • Neurological
  • Brain
  • Circulatory
  • Endocrine
  • Reproductive
  • Respiratory

If your child is found eligible under Section 504, then the school or program must provide accommodations that are designed to help the child achieve. Examples of possible accommodations are:

  • Moving the child to the front of the class
  • Giving the child extra time to complete tests and assignments
  • Having the child work with an instructional assistant
  • Getting someone to take notes for the child
  • Moving the child to a special classroom

Also, Section 504 children can be eligible for different services such as occupational therapy, physical therapy, speech therapy, or other appropriate services.