SPECIAL EDUCATION Learning Disabilities and the Law: Distinguishing Between an IEP and 504 Plan

Background Section 504 and ADA: Purposes Section 504 is a civil rights law. The purpose of Section 504 is to protect individuals with disabilities from discrimination for reasons related to their disabilities. ADA broadened the agencies and businesses that must comply with the non-discrimination and accessibility provisions of the law. Unlike IDEA, Section 504 and ADA do not ensure that a child with a disability will receive an individualized educational program that is designed to meet the child's unique needs and provide the child with educational benefit, so the child will be prepared for "for employment and independent living.”

Follow the Money Virtually all public school systems receive federal funds, and public education is a government service. Both statutes (504 and ADA) require school districts to provide a free appropriate public education (FAPE) to students with disabilities protected by those laws.

These laws make it illegal for schools to discriminate on the basis of disability by: denying a student the opportunity to participate in or benefit from a benefit or service, providing an opportunity to participate or benefit that is unequal to that provided others, providing a benefit or service that is not as effective as that provided to others, providing lower quality benefits, services or programs than those provided others, or providing different or separate benefits or services, unless it is necessary to provide benefits or services that are as effective as those provided to others.

Reasonable Accommodations Under section 504 and title II of the ADA, school systems must make accommodations and modifications to address the needs of students with disabilities. This means changing the way things are usually done in order to take into account a child's disability-related needs. Examples of accommodations and modifications include modifying rules, policies or practices; removing architectural or communication barriers; or providing aids, services, or assistive technology.

What are the purposes of Section 504 of the Rehabilitation Act? You need to understand the differences between Section 504 and the IDEA. Section 504 is a civil rights law - the purpose of Section 504 is to protect people from discrimination because of disabilities. Section 504 provides access and removes obstacles. Think of Section 504 as the law that makes schools add ramps and elevators to buildings if this is necessary to give disabled children access to the educational opportunities that are available to nondisabled children.

What are the purposes of the Individuals with Disabilities Act (IDEA)? If you read Section 1400, you learn that the purposes are - (A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living; (B) to ensure that the rights of children with disabilities and parents of such children are protected .

Eligibility The child who has a disability or impairment does not automatically qualify for special education services under the IDEA. If the child has a disability but does not need special education services, the child will not qualify for special education and related services under the IDEA but may receive protections under Section 504 of the Rehabilitation Act.

Eligibility under Section 504 To be eligible for protections under Section 504, the child must have a physical or mental impairment. This impairment must substantially limit at least one major life activity. Major life activities include walking, seeing, hearing, speaking, breathing, learning, reading, writing, performing math calculations, working, caring for oneself, and performing manual tasks.

The key is whether the child has an "impairment" that "substantially limits . . . one or more . . . major life activities.” Section 504 requires an evaluation that gathers information from a variety of sources. Section 504 does not require a meeting before a change in placement.

Section 504 Plans as Consolation Prizes Many schools offer Section 504 plans instead of IEP’s because Section 504 require them to do less. Unlike the IDEA, Section 504 does not create a right to a free appropriate education from which the child receives educational benefit. Bottom line: Kids who get passing grades can have a disability and need help.

Confusion about Benefits and Rights Some parents and educators believe that under IDEA, the child must be placed in special education classes but if the child has a 504 plan, the child may remain in the regular classroom. For these reasons, parents often think that Section 504 is more desirable. This is incorrect. A child who receives Section 504 protections has fewer rights than the child who receives special education services under the IDEA. However, a child who receives special education services under the IDEA is automatically protected under Section 504.

Protection from Discrimination Section 504 protects children with disabilities from discrimination. It is important to understand that if your child does not receive special education services under IDEA, your child does not have the procedural protections that are available under the IDEA statute.

Accommodations and Modifications Under Section 504, the child with a disability may receive accommodations and modifications that are not available to children who are not disabled. These accommodations and modifications are also available under IDEA.

Procedural Safeguards Section 504 does not include a clearly established "Prior Written Notice" requirement. In contrast, IDEA includes an elaborate system of procedural safeguards designed to protect the child and parents. These safeguards include written notice before any change of placement and the right to an independent educational evaluation at public expense. Section 504 does not include these protections.

Areas of Controversy As you can see IDEA provides more services for families of children with disabilities than Section 504 However many parents are not knowledgeable about the laws enough to properly advocate for their children This makes it difficult to distinguish which law should apply to your child. THIS IS EXPECIALLY TRUE FOR CHILDREN WITH EMOTIONAL ISSUES OR WHO HAVE SPECIFIC LEARNING DISABILITIES

Emotional Disturbance The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance: a.       An ability to learn which cannot be explained by intellectual, sensory or health factors; b.      An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; c.       Inappropriate types of behavior or feelings under normal circumstances; d.      A general pervasive mood of unhappiness or depression; or e. A tendency to develop physical symptoms or fears associated with personal or school problems

Specific Learning Disabilities Children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include children who have learning problems which are the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. Need severe discrepancy between achievement and intellectual ability in at least one: oral expression, listening, writing, reading, math calculation or reasoning. (Some schools say must be 2 years behind – different ways to apply this)

Summary You learned that Section 504 of the Rehabilitation Act and the Americans with Disabilities Act are responsible for accommodations and modifications in testing situations and programs, and improved building accessibility. You learned that these statutes do not require public schools to provide an educational program that is individualized to meet the unique needs of a child with the goal of enabling the child to become independent and self- sufficient. You learned that the child with a Section 504 plan does not have the protections available to the child who has an IEP under the IDEA.

Most importantly, you have learned that the categories of Emotional Disturbance and Specific Learning Disabilities are very controversial. We are now going to watch a clip from the Oprah Winfrey Show on teaching children with disabilities featuring Dr. Levine…