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Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: My son has ADD, and while not severe enough to be eligible under IDEA, it has been determined that he is eligible for accommodations and modifications under §504.  For right now, we agree with that decision.  However, when we ask for different classroom accommodations and program modifications the school people tell us we are not being “reasonable”, and under 504 law all they are required to be is make “reasonable” accommodations and modifications.


From what I can tell their definition of “reasonable” has to do with cost, how it will impact the teachers workload, and that some of our requests (tape recorder, etc.) may conflict with some parts of the teacher’s union contract.  Are they correct?


Answer:  In my opinion this is one of the most confusing areas of §504.  With the season for new IEPs and 504 Plans for the next school year well underway, it is a good time to review my understanding of the law in this area.


First, the confusion as to whether the term “reasonable” modifies or somehow limits the accommodations and program modifications a §504 student may need to be provided a FAPE (yes, FAPE is also applied to what I call “§504 only” students) comes about because §504 of the Rehabilitation Act of 1973, which is a non-funded anti-discrimination act, covers both students and employees.


The Office for Civil Rights (OCR), in a complaint decision rendered last January against the San Jose, California Schools (See San Jose Unified School District - OCR Case No. 09-99-1029 – January 14, 2003) stated “the law” as it applies to students much better than I can.  The relevant part of its decision stated:


One means of meeting the requirements of Section 504 is to implement an individualized education program in accordance with the Individuals with Disabilities Education Act (IDEA) for students eligible for services under that law.  If a student meets the definition of disability under Section 504 but is not eligible for services under IDEA, the student is nevertheless entitled to “the provision of regular or special education and related aids and services” as deemed appropriate for the student by the placement team (§104.33.)  The services provided to a student who is considered disabled under Section 504, but not eligible for services under IDEA, may not be arbitrarily limited to services in the regular classroom.


We have discussed with the District that the “reasonable accommodation” standard does not apply to decisions regarding FAPE.  The term “reasonable accommodation” is used in subpart B, Employment Practices, of the Section 504 regulation.  Subpart B, at 34 CFR § 104.12(a) allows an employer to limit reasonable accommodations for a disabled employee if “the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity.”  However, “reasonable accommodation” is not a term used in the Section 504 regulation to determine FAPE for disabled students in elementary or secondary school settings.  Further, the “reasonable accommodation” standard has never been used by OCR in determining a school district¹s obligation to provide FAPE.


Your April 12, 2000, letter indicates that the District understands that Section 504's FAPE requirements include “the provision of regular or special education and related aids and services” and these are “designed to meet individual educational needs of disabled persons as adequately as the needs of non-disabled persons are met.”  The District should follow these Section 504 requirements in making placement decisions for all disabled students who are covered by Section 504.  We hope the above information will assist the District in affording a free appropriate public education to students with disabilities under Section 504.






Charles R. Love                

Program Manager   


cc:        Jack O’Connell, Superintendent of Public Instruction

California Department of Education


Therefore, in answer to your question:  No – a disabled child covered under §504 (which includes the “§504 only child and all IDEA eligible students) must be provided all needed accommodations and program modifications so that the child shall be able to meaningfully participate in the educational program so as to receive a free and appropriate public education (FAPE). 


If a “reasonableness” standard is being improperly applied to your child’s accommodations and modifications, and in your opinion it results in a denial of a FAPE, then in my opinion that is an issue you well may wish to take up with your district’s 504 Coordinator (should be a published name), and if that fails to resolve the issue, then by filing a complaint with your regional OCR office, or with an attorney who practices in this area of the law.


John Brower, JD
Education Law Center, PLLC · 810-227-9850 · 

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