Concerns About Misidentification of “504-Only” Students

The problems and costs start with misidentification under Section 504’s definition of disability, which is broader than the definition under IDEA. Not limited to specified classifications, such as specific learning disability and the need for special education, the requirements for Section 504 eligibility are (1) any physical or mental impairment that limits (2) a major life activity (3) substantially. Students identified under Section 504 who do not qualify under the narrower eligibility criteria of IDEA are referred to here as “504-only.” These students typically receive accommodations and services under a 504 plan rather than an IEP.

The Increase in “504-Only” Rates

The national rate of students with 504 plans has almost quadrupled in the past 15 years. More specifically, in the 2009-10 school year, one year after Congress expanded the interpretive standards for determining eligibility under Section 504, the national percentage, according to data collected by the U.S. Department of Education, was 1.1%. This percentage has steadily increased, well beyond the effects of the congressional amendments. In 2021-22, the most recently released data from the Department, the national percentage of 504-only students was 3.9%, and the rate has likely continued to increase since then.

In 2021–22, Texas moved from first to second place in the country, with a statewide average of 7.6%, which is almost double the national average. At the district level, Texas accounted for 23 of the top 25 school districts in the nation, which ranged from 14.4% to 17.4% in percentage of 504-only students. At the school level, six of Texas’ middle schools reported rates between 23.1% and 30.1%, and two of its high schools tied at 23.0%.

This growth is partly attributable to the increase in the identified incidence of not only ADHD, dyslexia, and anxiety but also various physical health issues, such as diabetes, asthma, and food allergies. Reinforcing the growth specifically attributable to dyslexia, Texas has one of the strongest laws for screening, evaluation, and interventions in the country. Additionally, prevailing both in Texas and elsewhere, loose identification practices for 504-only students may also contribute, especially in districts and schools that have in recent years already applied this looseness in the direction of overidentification.

Yet, within a statewide average that suggests overidentification, some districts and schools appear to have applied this looseness in the direction of under-identification. For example, in the 2021-22 school year and in previous surveys, several Texas schools and school district reported zero or negligible percentages of students with 504 plans. The disparity between these extremes likely cannot be attributed simply to differences in local incidence rates of physical and mental impairments.

The Costs and Consequences of 504 Misidentification

For overidentification, the hidden costs include not only providing related services, such as counseling and transportation, but also the time required of teachers and administrators for meetings, forms, and potential complaint investigations, impartial hearings, and court proceedings. Additionally, at a time of teacher shortage, high percentages of students with 504 plans contribute to current recruitment and retention challenges. Yet, unlike the IDEA, Section 504 provides no extra funding from either the federal or state governments. Thus, Section 504 implementation is part of the school district’s general education budget.

Texas provides a limited exception specific to its strong dyslexia laws. Specifically, a current Texas statute provides an additional flat allotment for students receiving dyslexia instruction, services, or accommodations “for dyslexia or a related disorder,” without limitation to those who do so under an IEP or 504 plan (TAC § 48.103[b]). This added funding in Texas does not justify or explain Section 504 overidentification because (1) it is not at all limited to students with 504 plans, and (2) the Texas Dyslexia Handbook, which is legally binding in Texas, makes clear that the primary route for students with dyslexia is an IEP, not a 504 plan.

Moreover, along with under-identification, overidentification is a matter of social as well as legal justice because it allocates limited school resources to students who do not really qualify and, thus, are false positives. This hurts both the true positives (i.e., those who have been accurately identified) and the false negatives (i.e., those who should be identified). The under-identified students pose a hidden cost of exposure to “Child Find” violations, which include attorneys’ fees and remedial orders. (Child Find is a term for the responsibility of identifying, locating, and evaluating all children suspected of having a disability and who need special education and related services.) The over-identified students pose a hidden cost by reallocating the time and attention of classroom teachers and other professional personnel to compliance with Section 504’s formal development, implementation, and enforcement procedures rather than effective instruction for all students.

Practical Considerations for Texas Educators Related to 504-Only Students

• Provide concerted, constructive, and collaborative attention at the classroom, school, district, and state levels for more careful identification of 504-only students.
• At the classroom level, keep track of whether the 504-only students consistently use the accommodations and services in their 504 plans.
• At the school level, make best efforts to have a Section 504 coordinator and Section 504 team members who are well-versed in legally defensible yet professionally prudent identification practices with strong administrative backing.
• Encourage district administration to annually collect and review accurate information as to the percentage of students with 504 plans for the district as a whole and for the elementary, middle, and high school levels. For percentages that are notably high or low in relation to extrapolated current national and state rates, the data collection and review should extend to the identified impairments, major life activities, and the basis for the “substantial” connection between the impairment and major life activities.
• At the district level, make commensurate best efforts for the central administration to have uniform, effective, and legally defensible policies and practices that include:
  • Child Find procedures parallel to those under the IDEA but keyed to the broader, three-part definition of disability under Section 504, which does not require educational impact or the need for special education
  • Ensuring eligibility decisions are made by a team knowledgeable about the student, the evaluation data, and appropriate services/accommodations, as required under Section 504
  • Regular training that includes legal updates on the identification procedures and criteria but also the longitudinal 504-only rates for the district, school, and grade

At the state level, help ATPE provide effective lobbying and leadership efforts for more informed and effective state laws and policies that mitigate under- and overidentification to the school outcomes more effective for all Texas students.