Legal Rights of Children with Epilepsy in School & Child Care

CHAPTER FIVE
Special Education and Section 504
5.1Q: What are the rights of school-age students under Section 504?
A: Section 504 prohibits discrimination against a “qualified individual with a
disability.” 29 U.S.C. 794. A school-age student who is covered by Section 504
has the right to a free appropriate public education, regardless of the nature or
severity of his or her disability. The student may receive regular or special
education, which must include related aids and services that are designed to
meet his or her individual needs to the same extent as the needs of people
without disabilities are met. Additionally, Section 504 requires compliance with
certain procedural requirements. Section 504 applies to federally conducted and
federally funded programs and activities. With respect to educational programs,
Section 504 applies to preschool, elementary, secondary and adult education
programs and activities. 34 C.F.R. 104.33.
A person is considered a “qualified person with a disability” with respect to
educational services if he or she is of an age during which people without
disabilities are provided with education services, of an age during which state
law mandates that people with disabilities be provided with education services,
or if he or she is a person to whom a state is required to provide services under
the IDEA. 34 C.F.R. 104.3(l)(2).
5.2Q: Are students with epilepsy automatically covered under Section 504?
A: No. In order to be covered by Section 504, a student’s epilepsy must
substantially limit one or more of his or her major life activities, the student
must have a record of such a condition, or the student must be regarded as
having such a condition. For example, if a student who has epilepsy takes
medication, but he or she still has several breakthrough seizures a week and
experiences side effects from the medication, such as sleepiness, that affect his
or ability to concentrate in school and to complete all work on time, he or she
will be protected by Section 504, because the major life activity of learning is
substantially limited by his or her epilepsy. On the other hand, if a student has
epilepsy that is completely controlled by medication and he or she is able to
participate fully in school without any difficulties, he or she may not be
considered to have a disability under the definition in Section 504. 40
40 In 1999, the United States Supreme Court issued Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999), an
employment case under the Americans with Disabilities Act (ADA), which curtailed the scope of
protection under the ADA and Section 504 (which is interpreted in the same manner as the ADA) for
people with so-called “correctable” conditions such as epilepsy and diabetes. In this case, the Supreme
Court made it clear that, in determining whether a condition is substantially limiting, the effects, both
negative and positive, of mitigating measures, such as medication, must be considered.
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