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KPS4Parents assists parents pursue a Free and Appropriate Public Education (“FAPE”) for children who need IEPs or 504 Plans. We help in both venues.
Most of the families we serve are involved in the special education process, which calls for an Individualized Education Plan (“IEP”), but we still have a few who are not eligible for an IEP but are eligible for a 504 Plan. Many parents and educators struggle to understand the difference between these two types of legally binding and enforceable documents, so today’s post/podcast is meant to explain how they are similar and how they are different.
First, it’s important to understand that IEPs and 504 Plans are governed by different sets of laws, but there are some overlaps and key distinctions. IEPs are required for students who qualify for special education under the Individuals with Disabilities Education Act (“IDEA”). The implementing federal regulations for the IDEA are found at Title 34 Code of the Federal Regulations, Section 300 (“34 CFR Sec. 300”).
Students qualify for special education, and thus IEPs, only when their disabilities rise to the occasion of requiring specialized instruction – that is, a tailoring of the curricula – in order for them to receive meaningful educational benefit. They don’t have to require specialized instruction in all areas of the curricula. For example, a student with dyscalculia may only need specialized instruction in mathematics.
Specialized instruction can be in areas other than just the core curricula, as well, such as in pragmatic language skills to aid in proper communication in the school setting with peers and adults. In many states, for example, speech-language services can be regarded as specialized instruction when it is the only intervention a child needs in order to communicate effectively for educational purposes, such as participating in group learning projects, providing answers to teacher questions verbally in class, participating in whole class discussions, etc.
However, speech-language can also be regarded as a related service rather than specialized instruction if it is being provided in addition to some other form of specialized instruction as a support. Other related services can include physical therapy (“PT”), occupational therapy (“OT”), transportation services, a 1:1 aide, and a host of other supplemental services that complement the delivery of the actual specialized instruction. Whether a service can be regarded as specialized instruction under certain circumstances or is strictly a related service varies from state-to-state. The only thing that is guaranteed to be specialized instruction no matter what state you’re in is specialized academic instruction.
However, if the nature of a student’s disability is such that the student does not require specialized instruction, then he/she is not going to qualify for special education. That does not mean that the child is unprotected. Section 504 of the Rehabilitation Act of 1973 (“Section 504” or “504”) has recently been amended to blend into the Americans with Disabilities Act (“ADA”), but it has been around since before the ADA.
Section 504 began as a body of civil rights law that prohibits discrimination on the basis of handicapping condition by any federal agency or any federally funded entity. Being that our public schools receive federal special education dollars, among other federal funds, they are entirely bound by Section 504.
Section 504 prohibits discrimination, which means that, such as what is required by the ADA across multiple settings, our public schools must provide reasonable accommodation to students with disabilities to the degree necessary to provide them with the same degree of access to education that is being provided to their non-disabled peers. It is meant to be an equalizer.
What some find confusing or otherwise don’t realize is that students who are on IEPs are also protected by 504. Because 504 is a body of civil rights law, not a body of education law per se, to deny a student who is eligible for an IEP of a FAPE is to also discriminate against that student on the basis of handicapping condition.
To complicate matters further, how a FAPE is defined under the IDEA is different from how it is defined under Section 504. Under the IDEA, a FAPE is defined according to several criteria. A FAPE can be denied when any of the following occur:
- The IEP is not reasonably calculated to render meaningful educational benefit. This is often the argument asserted when the goals are not measurable, the services are inadequate to meet the goals, or the placement offered is not appropriate to the student’s unique needs. If the claim is being asserted right after the faulty IEP was offered, then not enough time has passed for the education agency to implement it (presuming the parents signed their consent to it) and, thus, there is no opportunity to examine whether the child nonetheless received educational benefit in spite of the faulty IEP. If the claim is being asserted after the faulty IEP has been in force for a while, then it may be determined that, despite the procedural failings of the IEP document the child nonetheless experienced meaningful educational benefit and, thus, a FAPE was not denied.
- The education rendered failed to conform with the IEP. This is the argument asserted when a public education agency fails to implement the IEP as written. In the 9th Circuit of the Federal Court of Appeals, it doesn’t matter whether the student nonetheless received educational benefit or not; that legal examination doesn’t even have to be made because a FAPE is automatically denied when the education rendered fails to conform to the IEP. In other Circuits, it still must be proven that the procedural failure denied meaningful educational benefit.
- The parents were denied their right to meaningful parent participation in the IEP process. This is what happens when public education agencies hold IEP meetings without the parents when the parents have not refused to attend. I’ve seen this happen when school districts offer an IEP meeting on the very last day of a mandatory timeline and it’s not a mutually agreeable date with the parents and they ask to reschedule. The districts are so freaked out about missing the timeline that they’ll hold the IEP meeting without the parents then note in the meeting notes that the meeting is being continued to a date that is mutually agreeable with the parents. However, holding an IEP meeting without the parents is procedurally non-compliant and has been found by the Courts to amount to a denial of a FAPE. It can also be found that if meaningful parent participation has been denied, whether due to excluding the parents from the meeting altogether or simply ignoring their input when they are in attendance, it doesn’t matter if the IEP procedurally complies with the IDEA – a FAPE is denied, plain and simple, because the parents’ rights were infringed upon.
- The student failed to receive educational benefit. If the IEP was inadequate to deliver meaningful educational benefit or the education rendered failed to conform to the IEP such that the student failed to receive educationally necessary intervention, then a FAPE has been denied.
This is a gross over-simplification of the analysis that must be conducted by a hearing officer or judge when trying a FAPE claim. But it gives you a basic framework.
Section 504, however, defines FAPE differently. It’s implementing regulations are found at 34 CFR Sec. 104. A FAPE under 504 means “the provision of regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met.”
The interesting thing about 504 is that it does not prohibit the use of an IEP even if the child doesn’t qualify for special education. It simply doesn’t make an IEP mandatory. Where IEPs require measurable annual goals, meaningful parent participation in the formulation of the document, parental consent prior to implementation, etc., there are no mandatory requirements for these things under 504.
Where the IDEA specifies what must go into the enforceable document (which is required to be an IEP), 504 requires “whatever it takes” to level the playing field for a student with disabilities. This gives public education agencies a lot of latitude to tailor the document to include only what a student exactly needs in order to have equal access to the curricula and participate in school with his/her non-disabled peers.
So, for example, if a student needs occupational therapy due to a handicapping condition (hypotonia, perhaps) to improve his/her fine motor skills for writing and computer keyboarding as well as tying his/her shoes and fastening clothing in the school setting (zipping up a coat in the winter, dressing out in PE, etc.) but doesn’t need specialized instruction to learn something he/she doesn’t already know, he/she wouldn’t qualify for an IEP but would qualify for a 504 Plan that provides for OT. There is a huge misconception on the part of many education agencies that 504 does not provide for services, only classroom accommodations, but this simply is not true. 504 calls for whatever the child needs in order to have equal opportunity to learn and participate in school like everybody else.
Both IEPs and 504 Plans can offer accommodations and many kids on 504 Plans only need accommodations, not specialized instruction, measurable annual goals, or related services. But there are also plenty of kids who need services under their 504 Plans and their school districts don’t realize that they are denying these children a FAPE by failing to provide these services.
How IEPs and 504 Plans are enforced is different as well. Under the IDEA, before a parent can sue the snot out of a school district for special education violations, including civil rights violations arising under Section 504, he/she generally has to exhaust all administrative remedies under the IDEA first. This can include both compliance complaints regarding procedural violations to State education agencies and State-level due process actions. It depends on the situation. Usually, due process has to be exhausted before a civil action can be filed.
Section 504, however, is enforced by the U.S. Department of Education Office of Civil Rights (“OCR”) and the federal courts. FAPE claims can be asserted in a 504 complaint to OCR without the need for litigation or any State-level complaints on behalf of students who have either 504 Plans or IEPs. However, if the parent of a student on a 504 Plan decides to sue, there are no prior administrative remedies that must be exhausted. Administrative remedies must only be exhausted before suing under Section 504 if the student is on an IEP.
The lack of the requirement for parental participation in formulation of and consent to 504 Plans leaves the door wide open for public education agencies to abuse the 504 process, but savvy parents realize that this means if things go wrong, the education agency is left holding the bag 100%. Many school districts still use a team approach and involve the parents in the 504 process as a policy because parents who are legitimately involved in the formulation process have something of value to contribute to helping the district comply with 504 and are less likely to sue the district if something goes wrong because they were part of the team that came up with the plan that ended up not working. For this reason, many districts also seek parental consent to 504 Plans just so they have documented proof that the parents thought the 504 Plan was a good idea at the time that it was written.
Whether a child qualifies for an IEP or a 504 Plan, both are legally enforceable documents and both are required to offer a FAPE by at least one definition. Both are essentially contracts that obligate public education agencies to help children with disabilities receive an education. Both can be amended if things aren’t working out and the most effective IEPs and 504 Plans result from positive collaborations between parents and educators.
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