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#1. Public schools are required to timely locate, evaluate and identify students they believe maybe eligible for special education and or protections from discrimination.
There are two laws that protect students with special needs and disabilities. The first section 504 of the Rehabilitation act of 1973. Under this law students who have a mental or physical impairment that limits one or more major life activities (e.g. learning, concentrating, behaving, reading, writing, and the list goes on and on) are eligible for protection against discrimination based upon their disability. Schools have a duty to provide students with disabilities that same opportunities enjoyed by their non-disabled peers.
Another law that protects students with disabilities is the Individuals with Disabilities Education Act (IDEA). (This is the law that requires schools to provide qualifying students with an Individualized Education Plan - or IEP.) Under this law the eligibility requirements are different than under Section 504. In fact, there are 13-15 different programs that a student can be determined to be eligible.
Public schools have a duty to locate (seek out students who have disabilities), evaluate (to request permission from parent to evaluate those who may have disabilities) and identify (to follow the criteria for eligibility to determine if students are eligible for services and accommodations.
The duty to timely locate, evaluate and identify begins as soon as the school officials have a reasonable suspicion that a student might be eligible for special education or protection from discrimination. If your child is struggling in school in any one or more areas (academics, reading, math, writing, social/emotional behavior, independent functioning, organization, healthcare or communications) your child may be eligible for protections under either (or both) Section 504 and IDEA.
#2. An appropriate Individualized Education Plan (IEP) must be reasonably calculated to provide the student with a basic floor opportunity for an educational benefit when it is created.
Students with qualifying disabilities under IDEA are entitled to an Individualized Education Plan (IEP). IEPs must be developed under the standard of being reasonably calculated (not guaranteed) to provide the student with a basic floor opportunity for an educational benefit. Unfortunately, schools are not required to help the child be all that he can be. They don't have to provide a "Cadillac" education. Rather, they are required to provide a "Chevy" education.
So let's examine this standard. Suppose a child has not made progress in several years in reading, not even a minimal progress. It probably would be an unreasonable expectation that doing the same thing will get different results. As such, if a school refuses to try different interventions and strategies in such a case as this, the school probably is not creating an appropriate IEP.
However, if the school keeps trying new interventions with the reasonable hope that the intervention will work, then the plan is probably appropriate even if it is found later to not have worked.
#3. Eligibility for a 504 Plan Does Not Mean the Student is not Eligible Under IDEA.
Often times schools attempt to limit a students protection to either Section 504 or IDEA. In actuality, students can be protected under both laws at the very same time. I have used the fact that a school gave the student a 504 Plan (accommodation plan) as evidence that the school knew that the student was struggling and qualified for special education under IDEA.
On the flip side, a student with an IEP does not also need a 504 Plan because the accommodations and services required by Section 504 can be provided through the IEP. However, that does not mean the student does not have rights under Section 504 if the student has an IEP. In fact, having an IEP actually supports that the student is also protected under Section 504.
You need to understand that IDEA is an federal law that funds special education services. In order for states to receive these funds they must create rules for implementing IDEA. Section 504 is a discrimination law that requires schools to provide students with qualifying disabilities with an equal opportunity as non-disabled peers enjoy.
As time goes along it is my plan to write more articles like this. Stay tuned.
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Jamison Jessup advocates for students with disabilities and special needs by participating, consulting and advocating at meetings (IEP, 504 Plan, Student Study Team, Manifestation Meetings, etc...). A nonlawyer, he also files and represents parents in due process hearings in states that allow such representation and attends and gives advice at due process hearings in states that do not allow such representation.
Another law that protects students with disabilities is the Individuals with Disabilities Education Act (IDEA). (This is the law that requires schools to provide qualifying students with an Individualized Education Plan - or IEP.) Under this law the eligibility requirements are different than under Section 504. In fact, there are 13-15 different programs that a student can be determined to be eligible.
Public schools have a duty to locate (seek out students who have disabilities), evaluate (to request permission from parent to evaluate those who may have disabilities) and identify (to follow the criteria for eligibility to determine if students are eligible for services and accommodations.
The duty to timely locate, evaluate and identify begins as soon as the school officials have a reasonable suspicion that a student might be eligible for special education or protection from discrimination. If your child is struggling in school in any one or more areas (academics, reading, math, writing, social/emotional behavior, independent functioning, organization, healthcare or communications) your child may be eligible for protections under either (or both) Section 504 and IDEA.
#2. An appropriate Individualized Education Plan (IEP) must be reasonably calculated to provide the student with a basic floor opportunity for an educational benefit when it is created.
Students with qualifying disabilities under IDEA are entitled to an Individualized Education Plan (IEP). IEPs must be developed under the standard of being reasonably calculated (not guaranteed) to provide the student with a basic floor opportunity for an educational benefit. Unfortunately, schools are not required to help the child be all that he can be. They don't have to provide a "Cadillac" education. Rather, they are required to provide a "Chevy" education.
So let's examine this standard. Suppose a child has not made progress in several years in reading, not even a minimal progress. It probably would be an unreasonable expectation that doing the same thing will get different results. As such, if a school refuses to try different interventions and strategies in such a case as this, the school probably is not creating an appropriate IEP.
However, if the school keeps trying new interventions with the reasonable hope that the intervention will work, then the plan is probably appropriate even if it is found later to not have worked.
#3. Eligibility for a 504 Plan Does Not Mean the Student is not Eligible Under IDEA.
Often times schools attempt to limit a students protection to either Section 504 or IDEA. In actuality, students can be protected under both laws at the very same time. I have used the fact that a school gave the student a 504 Plan (accommodation plan) as evidence that the school knew that the student was struggling and qualified for special education under IDEA.
On the flip side, a student with an IEP does not also need a 504 Plan because the accommodations and services required by Section 504 can be provided through the IEP. However, that does not mean the student does not have rights under Section 504 if the student has an IEP. In fact, having an IEP actually supports that the student is also protected under Section 504.
You need to understand that IDEA is an federal law that funds special education services. In order for states to receive these funds they must create rules for implementing IDEA. Section 504 is a discrimination law that requires schools to provide students with qualifying disabilities with an equal opportunity as non-disabled peers enjoy.
As time goes along it is my plan to write more articles like this. Stay tuned.
----------------------------------------------------------------------------------------------------------------------------
Jamison Jessup advocates for students with disabilities and special needs by participating, consulting and advocating at meetings (IEP, 504 Plan, Student Study Team, Manifestation Meetings, etc...). A nonlawyer, he also files and represents parents in due process hearings in states that allow such representation and attends and gives advice at due process hearings in states that do not allow such representation.
