10.3 Section 504, ADA, FERPA, & Federal Regulations

Section 504, ADA, FERPA, & Federal Regulations

While the Individuals with Disabilities Education Act (IDEA) provides targeted categorical funding and specialized instruction for students who require an IEP, school psychologists must routinely navigate a broader matrix of federal civil rights, accessibility, and privacy statutes. The most prominent of these are Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) and its 2008 Amendments Act (ADAAA), the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), and the Every Student Succeeds Act (ESSA). Mastery of these statutes is essential for preventing civil rights violations, preserving confidentiality, and ensuring equitable educational access.

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Section 504 of the Rehabilitation Act of 1973

Enacted as part of the Rehabilitation Act of 1973 (29 U.S.C. § 794, codified at 34 CFR Part 104), Section 504 is a sweeping federal civil rights law designed to eliminate disability-based discrimination. It provides that:

"No otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Because virtually all public school districts accept federal funds (e.g., Title I, IDEA Part B grants), all public schools must comply with Section 504. Unlike IDEA, which is a categorical funding statute, Section 504 provides no dedicated federal funding; it is an unfunded federal civil rights mandate.

Definition of Disability Under Section 504

Under Section 504 (34 CFR § 104.3(j)), an individual with a disability is defined as any person who:

1. Has a physical or mental impairment which substantially limits one or more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment.

Praxis Critical Rule: While individuals with a "record of" or who are "regarded as" having an impairment are protected from discrimination, harassment, and retaliation, only students who currently have an actual impairment that substantially limits a major life activity are entitled to an accommodation plan (a "504 Plan") providing FAPE.

FAPE Under Section 504

Section 504 defines FAPE differently than IDEA. Under 34 CFR § 104.33, FAPE requires 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 nondisabled students are met. The benchmark under Section 504 is equal access and non-discrimination, whereas IDEA centers on individualized educational benefit and progress through specially designed instruction.

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Comprehensive Comparative Analysis: IDEA Part B vs. Section 504

The distinction between IDEA and Section 504 represents one of the most frequently tested legal domains on the Praxis School Psychologist examination:

  ┌────────────────────────────────────────────────────────┐
  │           Section 504 / ADA Covered Students           │
  │   (Physical/Mental Impairment Substantially Limiting   │
  │                a Major Life Activity)                  │
  │                                                        │
  │     ┌────────────────────────────────────────────┐     │
  │     │             IDEA Eligible Students         │     │
  │     │   (1 of 13 Categories + Need for Specially │     │
  │     │             Designed Instruction)          │     │
  │     │                                            │     │
  │     │  • Autism, SLD, ED, ID, OHI needing SDI    │     │
  │     │  • Receive full IEP                        │     │
  │     └────────────────────────────────────────────┘     │
  │                                                        │
  │  • Diabetes, Asthma, Epilepsy, Food Allergies          │
  │  • ADHD needing only environmental accommodations      │
  │  • Receive 504 Plan (Equal Access / Accommodations)    │
  └────────────────────────────────────────────────────────┘

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Americans with Disabilities Act (ADA) & ADAAA of 2008

The Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.) extends civil rights protections across the private and public sectors. Title II of the ADA applies directly to public entities, including public school districts, prohibiting discrimination and mandating equal accessibility in facilities, school websites, and school-sponsored events.

The ADA Amendments Act of 2008 (ADAAA)

In 2008, Congress enacted the ADAAA (P.L. 110-325) to explicitly overturn restrictive Supreme Court decisions (such as Sutton v. United Air Lines and Toyota Motor Mfg. v. Williams) that had excessively narrowed the definition of disability. The ADAAA established two revolutionary principles for school evaluations:

1. Broad Expansion of "Major Life Activities":

   • Major life activities now include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
   • Explicitly added the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. (Under the ADA regulations, conditions such as diabetes, epilepsy, and cancer will, in virtually all cases, be found to substantially limit a major bodily function.)

2. The Mitigating Measures Rule (42 U.S.C. § 12102(4)(E)):

   • When determining whether an impairment substantially limits a major life activity, the multidisciplinary team must evaluate the student in their unmitigated state, without considering the ameliorative (positive) effects of mitigating measures.
   • Mitigating measures include: Medication, medical supplies, equipment, appliances, low-vision devices, prosthetics, hearing aids, cochlear implants, mobility devices, oxygen therapy, assistive technology, reasonable accommodations, auxiliary aids, or learned behavioral or adaptive neurological modifications.
   • The Sole Statutory Exception: Ordinary Eyeglasses or Contact Lenses: The ameliorative effects of ordinary eyeglasses or contact lenses must be considered in determining whether an impairment substantially limits a major life activity.
   • Episodic Impairments or Conditions in Remission: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when in an active state (e.g., pediatric epilepsy, cyclical depression, multiple sclerosis).

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Family Educational Rights and Privacy Act (FERPA / 34 CFR Part 99)

Enacted in 1974 (20 U.S.C. § 1232g, codified at 34 CFR Part 99), the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, is a federal statute that safeguards the privacy of student education records at any educational agency receiving federal funding. FERPA has been administered by the Department of Education's Student Privacy Policy Office; under a June 2026 interagency agreement, student-privacy enforcement work is moving to the Department of Justice. FERPA's requirements themselves are unchanged.

Definition of "Education Records" (34 CFR § 99.3)

Education records are defined broadly as records, files, documents, and other materials that:

1. Contain information directly related to a student; and
2. Are maintained by an educational agency or institution or by a person acting for such agency or institution.

Education records include cumulative files, special education files, disciplinary records, attendance logs, IEPs, Section 504 plans, emails discussing a specific student, and completed psychological test protocols containing student identifying marks or answers.

Core Parental Rights Under FERPA

• Right of Inspection and Review: Parents (or eligible students) have the right to inspect and review the student's education records. The educational agency must comply with an inspection request within a reasonable period, not to exceed 45 calendar days from the date of the request.
• Right to Request Amendment: Parents have the right to seek amendment of records they believe are inaccurate, misleading, or in violation of privacy rights. If the school refuses, parents are entitled to a formal administrative hearing. If the school maintains its decision post-hearing, parents may insert a written statement into the record explaining their perspective.
• Right to Consent to Disclosures: Written parental consent is required before personally identifiable information (PII) from education records may be disclosed to third parties, unless a specific statutory exception applies.
• Transfer of Rights at Age 18 ("Eligible Student"): When a student reaches the age of 18 or begins attending a postsecondary institution at any age, all FERPA rights transfer from the parents to the student.

Exceptions to Written Consent for Disclosure (34 CFR § 99.31)

Schools may disclose education records without prior parental consent under narrow statutory circumstances:

1. School Officials with Legitimate Educational Interest: Educators, administrators, or support staff within the LEA who need to review the record to fulfill their professional responsibilities (as defined in the district's annual FERPA notification policy).
2. Transfer to Another School: Officials of another school, school system, or postsecondary institution where the student seeks or intends to enroll.
3. Health or Safety Emergencies (34 CFR § 99.36): Disclosure to appropriate parties (e.g., law enforcement, psychiatric emergency teams, medical personnel) if knowledge of the information is necessary to protect the health or safety of the student or other individuals, based on an articulable and significant threat.
4. Judicial Orders and Subpoenas: To comply with a lawfully issued subpoena or judicial order, provided the school makes a reasonable effort to notify the parent in advance of compliance (unless the court order is an ex parte order prohibiting parental notification, such as in certain grand jury investigations or child abuse proceedings).
5. State and Federal Audit Officials: Authorized representatives of the U.S. Comptroller General, Secretary of Education, or state educational authorities conducting audits of federal/state education programs.
6. Directory Information: Information contained in an education record that would not generally be considered harmful or an invasion of privacy if disclosed (e.g., name, grade level, participation in sports, honors), provided the school has given annual public notice and allowed parents an opportunity to opt out.

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The "Sole Possession" Clinical Notes Exemption (34 CFR § 99.3)

One of the most vital, yet widely misunderstood, legal protections for school psychologists is the "Sole Possession Notes" exemption under FERPA.

                            ┌───────────────────────────────────────────────┐
                            │         School Psychologist Personal          │
                            │         Clinical Notes / Impressions          │
                            └───────────────────────┬───────────────────────┘
                                                    │
                                                    ▼
                            ┌───────────────────────────────────────────────┐
                            │  Strict 3-Prong Statutory Test:               │
                            │  1. Kept in the SOLE POSSESSION of maker?     │
                            │  2. Used ONLY as a personal memory aid?       │
                            │  3. NOT accessible or revealed to ANY OTHER   │
                            │     person (except a temporary substitute)?   │
                            └───────────────────────┬───────────────────────┘
                                                    │
                                    ┌───────────────┴───────────────┐
                                    │                               │
                            YES to All 3                    NO to Any Condition
                                    │                               │
                                    ▼                               ▼
                      ┌───────────────────────────┐   ┌───────────────────────────┐
                      │  EXEMPT FROM FERPA        │   │  CONVERTS TO FERPA        │
                      │  • Not an education record│   │  EDUCATION RECORD         │
                      │  • Parents cannot inspect │   │  • Parents have right of  │
                      │  • Cannot be shared       │   │    inspection in 45 days  │
                      └───────────────────────────┘   └───────────────────────────┘

The Three Mandatory Statutory Conditions

Under 34 CFR § 99.3, records made by instructional, supervisory, or administrative personnel and educational personnel that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute are not education records.

How Sole Possession Status is Instantly Destroyed

• Sharing with Anyone: The instant a school psychologist shows, reads, emails, or reveals their clinical notes to a principal, social worker, counselor, teacher, or parent, those notes lose sole possession exemption immediately and permanently. They convert into FERPA education records that parents have the absolute right to inspect.
• Filing in General Folders: Placing notes into a cumulative folder, shared electronic drive, or departmental filing cabinet destroys sole possession status.
• Objective Test Data vs. Personal Memory Aid: Standardized test protocols, scoring sheets, and raw scores are objective evaluation records, not personal memory aids; they are always FERPA education records once administered.

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Protection of Pupil Rights Amendment (PPRA) & ESSA

Protection of Pupil Rights Amendment (PPRA; 20 U.S.C. § 1232h / 34 CFR Part 98)

Known colloquially as the "Hatch Amendment," PPRA governs the administration of student surveys, analyses, and evaluations. For any survey or evaluation funded in whole or in part by the U.S. Department of Education, prior written parental consent is legally required before minor students are required to participate in surveys revealing information concerning any of Eight Protected Categories:

1. Political affiliations or beliefs of the student or parents;
2. Mental or psychological problems of the student or family;
3. Sex behavior or attitudes;
4. Illegal, anti-social, self-incriminating, or demeaning behavior;
5. Critical appraisals of other individuals with whom respondents have close family relationships;
6. Legally recognized privileged or analogous relationships (such as lawyers, physicians, ministers);
7. Religious practices, affiliations, or beliefs of the student or parents; or
8. Income (other than that required by law to determine eligibility for program assistance).

For non-federally funded surveys involving these eight areas, districts must at minimum provide parents with notice and the opportunity to review the survey and opt their child out.

Every Student Succeeds Act (ESSA / P.L. 114-95)

Reauthorizing the Elementary and Secondary Education Act (ESEA) in 2015, ESSA replaced No Child Left Behind (NCLB). Critical features for school psychologists include:

• Specialized Instructional Support Personnel (SISP): ESSA formally codifies school psychologists, school social workers, and school counselors under the federal designation of SISP. This title authorizes federal funding for school psychologists to consult on schoolwide climate, mental health supports, behavioral interventions, and MTSS architectures.
• Evidence-Based Interventions: ESSA defines four tiers of evidence (strong, moderate, promising, and demonstrates a rationale). Interventions funded through school-improvement set-asides for low-performing schools must meet one of the top three tiers.

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Case Vignette: The Mitigating Measures & Sole Possession Conundrum

Student: Tyler, 7th grade.
Referral: Diagnosed with severe ADHD and Generalized Anxiety Disorder. He takes prescribed methylphenidate (Ritalin) and attends private cognitive-behavioral therapy. On medication, Tyler earns B grades and rarely disrupts class. However, without medication, his sustained attention drops to the 2nd percentile, his working memory collapses, and he experiences severe executive dysfunction that prevents task completion.

School Team Reaction: The assistant principal argues: "Tyler is earning B's and behaving fine in class right now. He does not have a substantial limitation in learning, so he does not qualify for a Section 504 Plan."

Legal & School Psychological Resolution:

1. ADAAA Mitigating Measures Rule: The school psychologist corrects the team by citing the ADAAA of 2008 (42 U.S.C. § 12102(4)(E)). Under federal law, the team must evaluate Tyler's impairment without regard to the ameliorative effects of mitigating measures (his medication). Because Tyler's ADHD, in its unmedicated state, substantially limits major life activities (concentrating, thinking, learning), he meets the legal definition of an individual with a disability.
2. 504 Plan Entitlement: Tyler is entitled to a Section 504 Plan detailing accommodations (e.g., extended time for testing if medication wears off, access to executive functioning checklists, preferential seating) to ensure equal access.
3. Clinical Notes Incident: During the evaluation, the school psychologist took handwritten clinical impressions regarding Tyler's parent dynamics and noted personal hypotheses. The principal asked to see the notes. The school psychologist declined, knowing that under 34 CFR § 99.3, handing the notes to the principal would permanently destroy their sole possession status and make them inspectable by parents under FERPA. Instead, the psychologist orally summarized relevant educational findings during the multidisciplinary meeting while maintaining sole possession of personal memory aids.