504 or IEP: Which is Right for my Child?

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Law Office of Allison B. Vrolijk, LLC * 885 Woodstock Road Suite 430-318 Roswell, Georgia 30075 (770) 587-9228 * Allison@vrolijklaw.com * www.vrolijklaw.com

504 or IEP: Which is Right for my Child?

Students with disabilities can receive educational plans under one of two federal laws. One is Section 504 of the

Rehabilitation Act of 1973, whose plan is commonly referred to as a 504 Plan. The other is the Individuals with Disabilities Education Improvement Act of 2004, commonly referred to as IDEA, whose plan is called an IEP (Individualized Education Program). Particularly for

students with Tourette Syndrome, ADHD, or other medical conditions, it is important to know the distinction,

the legal requirements for eligibility and the protections

and services afforded under each.

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504 Plan IEP

Statute and Regulations Civil Rights, anti-discrimination law.

29 U.S.C. §701 et seq.

34 C.F.R. Part 104

20 U.S.C. §1400 et seq.

34 C.F.R. Part 300

Overriding Purpose

“Reasonable” accommodations for equal access to educational opportunities. Accommodations cannot alter the nature and

expectations of the class/activity.

Specially designed instruction, accommodations and related services designed so the student can make meaningful progress and receive an educational benefit. Designed to meet unique needs and ensure that children’s and parent’s rights are protected.

Who it Protects

Children and adults with disabilities in schools that receive federal funds. This includes post-secondary level education.

Children with disabilities in public schools until they

graduate or reach the age of 22.

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504 Plan IEP

Evaluation

Child find obligation to annually identify and locate students with disabilities. Must perform an evaluation that draws from a variety of sources. No timeline for completion. US DOE OCR has interpreted a parental

consent requirement to evaluate.

Requires “periodic” re- evaluations.

Child find obligation to annually identify and locate students with disabilities. Must use “a variety of assessment tools and strategies to gather relevant functional,

developmental and academic information” and assess in all areas of suspected disability.

Evaluation and eligibility meeting must be held within 60 days of consent to evaluate.

Requires triennial re-

evaluations and has provisions for Independent Educational Evaluations.

Eligibility

“Physical or mental impairment which substantially limits one or more of such person’s major life activities.” Explicitly includes sleeping, reading, concentrating, thinking, and communicating, as well as performing manual tasks, seeing, hearing, eating, walking, speaking, learning, and working.

NO RTI (Response to Intervention) requirement!

Consideration must exclude mitigating factors being implemented.

“Determination of whether the child is a child with a disability”

and “the educational needs of the child.” Requires a disability that adversely affects a child’s educational performance so that specialized instruction is

required. In some states/school districts, RTI (Response to Intervention) is required for suspected learning disabilities, but evaluations should occur concurrently.

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What you get

(504 accommodations are subsumed in an IEP – never any need to have both)

Accommodation plan implemented in a general education classroom. No specialized instruction or direct services typically permitted.

May include related services (OT, PT, transportation, etc).

Individualized Education Program designed to provide specialized instruction, accommodations and related services (OT, PT,

transportation, etc) for deficit areas. Transition planning at age 16.

"Specially designed instruction"

means adapting, as appropriate to the needs of an eligible child, the content, methodology or delivery of instruction to

address the child's unique needs resulting from the disability and ensuring the child's access to the general curriculum so that he or she can meet the

educational standards that apply to all children within

jurisdiction of the public agency. 34 CFR 300.39(b)(3).

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504 Plan IEP

Meaning of FAPE (Free Appropriate Public Education)

Appropriate means an education comparable to non-disabled peers. Leveling the playing field in the general education

classroom.

Appropriate means designed to provide an educational benefit to the disabled student. Direct specialized instruction,

accommodations and related services. Can be in a general education or special education setting.

Parental Rights

Very few specifically spelled out. Schools are merely required to establish and implement procedural safeguards that include notice (not consent), an opportunity for parents to review relevant records, an impartial hearing with opportunity for participation by the student's parents or guardian,

representation by counsel and a review procedure.

Spelled out in detail and at length. Consent requirements.

Prior written notice

requirement. Annual reporting of present levels of

performance. Data collection.

Periodic progress reporting.

Disciplinary Protection

MDR (Manifestation Determination Review)

requirement prior to a change of placement because of behavior.

MDR (Manifestation Determination Review)

requirement prior to a change of placement because of behavior.

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Dispute Resolution

School districts required to develop their own grievance procedure. Can include a hearing officer appointed by the school.

Due Process procedures specifically set out in statute.

Hearings held by impartial hearing officers provided by the State. Stay put provision.

Enforcement

Can file complaints with the United States Department of Education Office of Civil Rights.

180 day statute of limitations.

Can file complaints with the State Department of Education.

Generally 1 year statute of limitations.

Funding Schools receive no additional federal funds to provide accommodations.

Schools receive federal funding for services. Statute is not fully funded.