The Individuals with Disabilities Education Act and Section 504.
Two different federal laws that both offer protection for individuals with disabilities.
IDEA and Section 504 are both federal laws that provide protection to individuals with disabilities. However, they are fundamentally different in application. IDEA is the federal law covering special education in public schools and its related legal requirements and protections. Section 504 of the Rehabilitation Act is a federal law that protects both adults and children with disabilities by ensuring the necessary accessibility and access.
IDEA and Section 504 often confused. Throughout this section and the attached links we discuss the differences in these laws and how to understand what applies and when. The good thing is that if you have a child with a disability they are protected by both.
Every parent with a child with any challenges should know the difference between a Section 504 Plan and an IEP. If your child is eligible for special education and you are thinking you just want to learn to negotiate at your IEP meeting, this section is still a helpful read. If your child is eligible under IDEA, they are also still entitled to the protections of Section 504 and are covered by it. Also, remember those outdoor barbecues and all your friends chatting it up about their kids who might just be struggling? Well, this section will also come in handy for helping a friend navigate the world as well.
Section 504 covers “any program or activity receiving federal financial assistance.” This includes public schools, colleges, after-school care, sports, libraries, and even airports.
The Individuals with Disabilities Education Act.
The Individuals with Disabilities Education Act (IDEA) is the current law that controls special education - across the entire U.S. whether you live in New Jersey or California, or happen to hang out with me in the midwest. Your state has to put these same requirements in the law as well - and can only add more rights to them not take any away.
IDEA provides for special education procedural safeguards and rights and ensures that public schools provide an appropriate education for students with disabilities. It provides the requirements for school system for education of students with educational challenges. This law ensures students with a disability are provided with a Free Appropriate Public Education (FAPE) that is tailored to their individual and unique needs and delivered with specialized instruction.
The IDEA requires schools to provide special education services to children with disabilities throughout the United States. It provides the rules on how states and schools must provide these services to more than 6.5 million eligible infants, toddlers, children and youth with disabilities.
IDEA is what provides the guidance and requirements for your child’s IEP; which includes the structure of the IEP, the continuum of services and placements that must be offered, the least restrictive environment, related services, transition services, and all of the other available components that we will discuss in this book. This law is found at 20 USC § 1400, with regulations appearing at 34 CFR § 300. It is important to understand this law will be referenced in both ways throughout this book. Both are citations to IDEA.
The purpose of IDEA is:
a) To ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
(b) To ensure that the rights of children with disabilities and their parents are protected;
(c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate children with disabilities. 34 CFR §300.1 & 20 U.S.C. 1400 (d)
FAPE under the IDEA includes the requirements special education eligibility, how your child’s IEP is developed, what it needs to contain including goals, services, accommodations, modifications, placements, extended school year, and the responsibility of school staff. For each of these topics and more hop on over to All Things FAPE.
To view a complete copy of the text of IDEA click below.
Section 504 of the Rehabilitation Act of 1973
Section 504 is an anti-discrimination law that is often used to provide for accommodations for the disabled children, whether or not they qualify for special education services under the IDEA. A Section 504 Plan is simply an accommodation plan and can be used for children with ADD, diabetes, cancer, or any other disability that significantly affects their ability to function. This law is found at 29 USC § 794, with regulations appearing at 34 CFR § 104.
Section 504 provides: "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 . . . ."
Understanding the protections of Section 504.
Who does Section 504 Protect?
Section 504 covers students with disabilities in public schools. It will also cover a parent with a disability.
What are the requirements to be eligible for Section 504?
To be protected under Section 504, a student must be determined to: (1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such an impairment; or (3) be regarded as having such an impairment.
What services are available for students with disabilities under Section 504?
Section 504 requires recipients to provide to students with disabilities appropriate educational services that accommodate his or her needs so that they can access educational services.
Does Section 504 require an evaluation?
No. However it does require a review of data to make the determinations as to the child’s needs. If there is reason to suspect a disability that requires more than an accommodation, a full pychoeducational evaluation under the IDEA should be conducted.
How much is enough information to document that a student has a disability?
At the elementary and secondary education level, the amount of information required is determined by the multi-disciplinary committee gathered to evaluate the student. The committee should include persons knowledgeable about the student, the meaning of the evaluation data, and the placement options. The committee members must determine if they have enough information to make a knowledgeable decision as to whether or not the student has a disability. The Section 504 regulatory provision at 34 C.F.R. 104.35(c) requires that school districts draw from a variety of sources in the evaluation process so that the possibility of error is minimized.
If a student is eligible for services under IDEA and Section 504, must a school district develop both an individualized education program (IEP) under the IDEA and a Section 504 plan under Section 504?
No. If a student is eligible under IDEA, he or she must have an IEP.
What is a physical or mental impairment that substantially limits a major life activity?
The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on the basis of an individual inquiry. The Section 504 regulatory provision at 34 C.F.R. 104.3(j)(2)(i) defines a physical or mental impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulatory provision does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list.
What are considered major life activities?
Major life activities, as defined in the Section 504 regulations at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. Other functions can be major life activities for purposes of Section 504. In the Amendments Act, Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a non-exhaustive list of examples of “major bodily functions” that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
What services can my child get under a Section 504 plan?
Under a 504 plan, a child who needs greater classroom assistance can have a plan created that provides a structured learning environment, a communication notebook that includes instructions about in-class assignments, behavior management techniques, an adjusted class schedule, classroom aids, and even additional textbooks. A child who needs other types of accommodations, such as audio recording, physical education, or classroom note takers, also would find these provided under a Section 504 plan. However, be aware a child should have an IEP if they need any modifications or changes in the curriculum or if there is an academic impact.
Does Section 504 require FAPE?
Section 504 requires that school districts provide a free appropriate public education (FAPE) to qualified students in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities. However, FAPE is different under Section 504 than under the IDEA. The IDEA requires specialized instruction and modifications. Section 504 simply requires that the student be accommodated.
How does a school district view a temporary impairment?
A temporary impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities for an extended period of time. The issue of whether a temporary impairment is substantial enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.
Must a school district develop a Section 504 plan for a student who either "has a record of disability" or is "regarded as disabled"?
No. In public elementary and secondary schools, unless a student actually has an impairment that substantially limits a major life activity, the mere fact that a student has a "record of" or is "regarded as" disabled is insufficient, in itself, to trigger those Section 504 protections that require the provision of a free appropriate public education (FAPE). This is consistent with the Amendments Act (see FAQ 1), in which Congress clarified that an individual who meets the definition of disability solely by virtue of being “regarded as” disabled is not entitled to reasonable accommodations or the reasonable modification of policies, practices or procedures. The phrases "has a record of disability" and "is regarded as disabled" are meant to reach the situation in which a student either does not currently have or never had a disability, but is treated by others as such.
What are the responsibilities of regular education teachers with respect to implementation of Section 504 plans? What are the consequences if the district fails to implement the plans?
Regular education teachers must implement the provisions of Section 504 plans when those plans govern the teachers' treatment of students for whom they are responsible. If the teachers fail to implement the plans, such failure can cause the school district to be in noncompliance with Section 504.
The differences between IDEA and Section 504
Eligibility:
IDEA Eligibility: Requires that the student have a disability that adversely affects their education and requires special education and supplementary services. The main focus is educational services and addressing needed skills and challenges. Child Find requirement exists for seeking children who may be eligible for special educational services.
Section 504 Eligibility: Requires only a disability that impacts a life function. It does not require an adverse impact on education. The main focus is to “level the playing field” and to prevent discrimination.
Plan:
Plan: Requires that the school formulate a written individualized plan designed to meet the unique needs of the student to provide appropriate goals, accommodations, and related services. The plan must be created by an IEP team.
Plan: Does not require a written plan. Does require accommodations to ensure access to educational and extracurricular services.
FAPE:
FAPE: Requires the IEP to provide a Free Appropriate Public Education with educational benefit designed for the student to advance. Allows modifications of the general curriculum to fit the needs of the student.
FAPE: Requires a Free Appropriate Public Education comparable to that which is provided to students without disabilities. Provides for accommodations only, not for modifications of the curriculum.
Evaluation:
Evaluation: Provides for a reevaluation every three years unless otherwise agreed upon. Also provides parents the right to an IEE if they disagree with the school’s evaluation of their child.
Evaluation: Does not require an evaluation only data. The data can be informally gathered or simply be in the form of a letter with a diagnosis.
Placement:
Placement: Placement can range from a general education classroom to special education resource room to therapeutic day school to residential. Placement is determined by the needs of the student.
Placement: In most situations, a general education classroom unless accommodations due to health care needs require a home or hospital-based placement.
Age Limits:
Age Limits: IDEA extends eligibility until a student turns twenty-two, graduates, or gets certificate.
Age Limits: No age limit.
Related Services:
Related Services: If needed.
Related Services: If needed in order to ensure access to educational services.
Enforcement Agency:
Enforcement Agency: The Department of Education (state and federal) and the Office of Special Education Programs (OSEP).
Enforcement Agency: The Office of Civil Rights.
Procedural Safeguards:
Procedural Safeguards: IDEA provides comprehensive safeguards, including the requirements for written notice prior to any changes in placement or programming and an independent hearing system administered by the state.
Procedural Safeguards: Does not require prior written notice to change placements. Does require an impartial hearing for parents who disagree with the program but leaves many details to the discretion of the school district, and in many districts the LEA may appoint its own hearing officers.
Educational Due Process:
Due Process: A parent may dispute the child’s eligibility, evaluation, placement, and programming through an independent hearing officer. A due process request triggers “stay put,” and a child will remain in his or her educational placement until the case has been decided by an independent hearing officer. If a parent is the prevailing party in the action, they may seek attorney’s fees from the school district for their costs. IDEA does not allow parents to recover monetary damages for denial of FAPE.
Due Process: A parent may dispute the eligibility, evaluation, LRE, or accommodations being provided and has the right to request an impartial hearing. The LEA can appoint its own hearing officer. There is no “stay put” protection. Monetary damages may be available for a denial of FAPE under Section 504.
Manifestation Determination Review:
Manifestation Determination Review: An MDR is required within ten days of any decision to change the placement of a child with a disability.
Manifestation Determination Review: An MDR is required within ten days of any decision to change the placement of a child with a disability.