Section 504’s Untapped Potential to Address Students’ Mental Health Needs in School
Updated: Jun 18, 2022
We are excited to bring you the following guest blog post about Section 504 plans and their ability to address students' mental health needs in school. This post was written for our blog by our colleague and fellow education attorney Miriam Nunberg (bio below):
Children today are experiencing such a tidal wave of mental health issues that the U.S. Preventive Services Task Force recently recommended that all children over the age of eight be screened for anxiety annually. In 2020, one in six adolescents experienced a major depressive episode, and there was a 31% increase in mental health-related hospitalizations for teenagers. These statistics have major implications for schools. During the 2017–18 school year (the last year for which this data is available), about 51 percent of public schools across the U.S. (or 42,200 schools) reported providing diagnostic mental health assessments to evaluate students for mental health disorders. Approximately 38 percent of public schools (or 31,500 schools) reported providing treatment to students for mental health disorders. The pandemic has only made this crisis worse. As a New York Times article (available by subscription) recently reported, Covid-related “isolation has been particularly challenging for young adults who struggle with chronic anxiety or depression, and who would typically rely on their social circles for comfort.”
As an advocate for parents of children with disabilities, I frequently encounter schools in New York City that seem to have no understanding of their legal obligations to support students experiencing mental health challenges. I have handled a number of cases where students have experienced moderate to severe mental health issues only to be mostly ignored by their schools. In two separate situations, students returned to school following extended psychiatric hospitalizations and received essentially no support in transitioning back and managing the demands of high school. The school’s failure to make any kind of plan for these children only exacerbated their existing difficulties and nearly resulted in rehospitalization in one case.
So what are schools legally required to do when they have students who suffer from mental health issues? What standards should they follow? What rights do these kids have to expect support from their schools? The often poorly understood Section 504 of the Rehabilitation Act of 1973 offers an excellent, if somewhat vague, framework that all public schools are obligated to follow, but too often do not. This law requires public schools to develop individualized accommodation plans to support children with disabilities at school. A mental health condition if serious enough can absolutely qualify as a disability under Section 504. Once a student’s disability is recognized by the school, 504 accommodations can include, but are definitely not limited to, modifications to a child’s workload or schedule, mental health support at school, breaks, testing accommodations, or changes to applicable policies.
The US Department of Education’s (USDOE’s) Office for Civil Rights (OCR) is the federal agency that oversees the implementation of Section 504 in public schools. In the fourteen years in which I served as an attorney in this office, I routinely handled allegations of discrimination on the basis of disability in schools. Anecdotally, I have never seen as categorical a lack of understanding of Section 504’s requirements as I frequently encounter in the New York City public schools, particularly with respect to students who earn good grades.
Section 504 is a very old law, with somewhat vague wording that can be hard to really understand. However, at its core are several key concepts that mandate a set of actions for schools to take when one of their students exhibits signs of potential mental health conditions. Many mental health conditions may qualify as a disability under Section 504 if they “substantially limit a major life activity.” Major life activities, as defined in the Section 504 regulations, include, but are not limited to, functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. This list is explicitly non-exhaustive; I would also add to it regulating one’s emotions or responding to the stress of daily life.
There are certain basic steps that Section 504 mandates that all public schools follow when they encounter students with mental health conditions.
Notice when a child is in distress and take appropriate action to determine whether the distress might be disability-related. This requirement comes from what’s called the “Child Find” provision of Section 504, which requires all districts to have procedures to “identify and locate” all children with potential disabilities within their jurisdiction. If the child’s symptoms are readily apparent, schools should not wait for parents to ask for help before offering support.
If a child returns from a hospitalization due to a psychiatric condition, or if the school is aware that the child is suffering from mental health issues, it is the school’s responsibility to offer to determine whether the child’s condition qualifies as a disability under Section 504. They are not supposed to wait for a request from the parent.
Offer a free, comprehensive evaluation to determine whether the child has an impairment that might rise to the level of a disability. Section 504 explicitly includes the obligation of schools to evaluate children for a suspected disability. The 504 evaluation requirement actually extends to DOE-provided psychiatric and neuropsychological assessments if they are necessary to evaluate a child and to determine which, if any, accommodations are needed to allow the child to function at school. I have seen too many school personnel instruct parents to provide their own evaluations in order to get accommodations under 504. Indeed, the NYCDOE’s own Section 504 policy impermissibly requires parents to initiate a 504 request with “supporting documents from the student’s health care provider”; in my experience, schools will not move forward with processing a request for a 504 plan without a medical form filled out by the family’s own provider.
In order to determine whether a child’s mental health condition qualifies as a disability, the DOE MUST offer a free, comprehensive evaluation to the family. If the family wants to provide their own, the DOE must consider the evaluation. Either way, the decision to provide 504 accommodations must be based on the review of a valid evaluation. A simple diagnosis from a pediatrician is not enough to make a valid 504 determination.
Hold a multi-disciplinary meeting to review the results of the evaluation. This meeting must be attended by a team of people who are knowledgeable about the student (i.e., actually know the student), knowledgeable about the disability (i.e., have sufficient professional expertise to interpret the results of any tests conducted) and knowledgeable about the placement options (i.e., they understand the range of services and supports available in the district). In my experience in NYC, schools too often take the 504 request form filled out by the child’s doctor and either approve or deny it without explanation. This is NOT what 504 requires.
When a child returns from the hospital or is experiencing mental health issues, the school should hold a meeting of a team of people that includes someone with the professional expertise to understand the child’s particular condition. This should include outside experts if necessary to fully understand what the child’s condition entails and which accommodations are necessary to help support the child in school.
Determine whether the child’s condition rises to the level of a disability under Section 504. Under Section 504, a disability is defined as an impairment that creates a substantial limitation on a major life activity. The impairment does not have to limit a child’s ability to learn, but can be anything that “substantially limits” activities such as concentrating, regulating emotions or performing any other major life activity, including those related to mental health. This definition means that students who get good grades can still be eligible for services in school under Section 504.
The 504 team must find the child eligible for accommodations if the child’s mental health (or any other) impairment makes it more than usually difficult for the child to perform any major life activity that touches on their school experience. That might include anxiety that makes them take an inordinately long time to do work, or depression that makes it hard for them to complete a full day at school. Whether they get good grades or not is not part of the analysis.
Explain the decision about whether or not to provide services to the child to parents or guardians. While parents aren’t technically part of the 504 team, the notice requirement means that parents have a right to understand exactly why a school is or isn’t providing 504 services to their child. This requirement should mean that parents have the right to participate in the decision making in real time.
The Section 504 notice requirement means that parents are entitled to fully understand why a school or district denies Section 504 accommodations or protection to their child. A blanket denial is not acceptable.
Provide a free, appropriate public education (FAPE) to students who qualify as having disabilities. FAPE exists under 504. For 504 purposes, it means “the provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met.”
FAPE under 504 is a flexible, individualized concept. This means that accommodation plans under 504 should clearly lay out which specific accommodations are needed to provide a student with the same access to the educational environment as students without disabilities. While the 504 FAPE requirement doesn’t include as many details and guidelines as IEPs must include, FAPE under 504 is not limited to a small set of easy to provide accommodations. The accommodations must be based on the evaluation and the child’s needs, and must serve to allow the child to access the full range of educational opportunities as are available to students without disabilities. This includes after school and extra-curricular activities such as trips and arts programming. Most importantly, Section 504 accommodations are not limited to free services. For example, students can get related services, such as counseling, and paraprofessionals under 504.
Putting all of these steps together, when children experience mental health crises, Section 504 makes clear that schools are legally obligated to notice what is going on with the child (if they haven’t been advised already), conduct a full evaluation, convene a multi-disciplinary team to review the evaluation results, and if appropriate, draw up a plan to support the child. Lately, this is definitely not what I am witnessing in New York City schools.
Miriam Nunberg has over 25 years of experience in the field of education, as an attorney, activist, special education teacher, parent and as the co-founder of the Brooklyn Urban Garden Charter School. She currently advocates for parents of students with disabilities in navigating the IEP and 504 processes, and is a Senior Fellow in New York Law School’s Education Law and Policy Institute. Miriam’s work integrating the middle schools of her Brooklyn school district was featured in the New York Times/Serial podcast Nice White Parents. She also was Of Counsel to the Law Firm of Elisa Hyman - a special education and civil rights practice in New York City. Miriam served as a staff attorney in the US Department of Education’s Office for Civil Rights for 14 years, where she handled civil rights investigations in educational institutions, including an extensive caseload involving the rights of students with disabilities. Miriam lives in Brooklyn, NY with her family.