Section 504 vs Special Ed (IDEA) Similarities and Differences

Section 504 vs Special Ed (IDEA) Similarities and Differences

www.ldonline.org/article/6086

The main difference is, that students have more protections, and have more available assistance under Special ED than under 504.

   
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”Is every student with a disability who is eligible under the IDEA also covered under Section 504?

Yes. Students who are eligible for special education programs and related services under the IDEA meet the definition of eligibility under Section 504. IDEA eligible students are entitled to additional protections and services offered under Section 504, e.g., the right to accessible facilities.”     ------------------------------------------------------------------------------------------------------------

    Screening vs Evaluating a Student suspected of having a disability that affects learning:

Screening

- does not meet the criteria under the Individuals w/ Disabilities Education Act

- is often done by less qualified staff at the school building level not the district pupil appraisal dept for spec ed

- is flawed at best, and doesn't give a full view of possible problems

- falls under section 504, and can be removed any time the school staff see fit w/out parental input       Section 504 of the Rehabilitation Act www.schwablearning.org/message_boards/view_discussion.aspx?thread=18475   www.504idea.org/504_eligibility.html
"Question 1: What if the major life activity impaired is not learning? Can the child still qualify under Section 504?

A common misperception in 504 is that a student must possess a physical or mental impairment that substantially limits the major life activity of learning in order to be 504 eligible. OCR's position is that while it 'may be true in a practical sense that most impairments that would be of concern in an education setting would be those that impair learning,' the major life activity of learning need not be the focus of the equation. 'Students may have a disability that in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning. For instance, a child may have very severe asthma (affecting the major life activity of breathing) that requires regular medication and regular use of an inhaler at school. Without regular administration of the medication and inhaler, the child cannot remain in school.' Letter to McKethan, 23 IDELR 504 (OCR 1994).
Question 2: Do we evaluate and serve (1) students with a record of a disability or (2) students regarded as being disabled?

The definition of students protected under 504 includes those with a 'record' of a disability or 'regarded as' having a disability. 34 C.F.R. Section 104.3(j)(1). These provisions have led to much confusion among school districts. The main misconception is that even if currently not disabled, a child with a record of a disability, or regarded as having a disability, has to be evaluated and placed under 504 by a Section 504 committee. This is not so. Only children who currently suffer from an impairment substantially limiting learning or another major life activity are eligible for referral, evaluation, and educational services under 504. 'Logically, since the student [qualifying under prong two or three] is not, in fact, mentally or physically handicapped, there can be no need for special education and related aids and services.' OCR Senior Staff Memo, 19 IDELR 894 (Aug. 13, 1992) [bracketed material added]. Prongs two and three of the disability definition exist to protect children with a record of a disability and children regarded as having a disability, from disability-based discrimination.
Question 3: What constitutes a 'substantial limitation?'

The 504 regulations do not contain a definition of 'substantially limits' and has declined to define the term. 'Several comments observed the lack of any definition in the proposed regulation of the phrase 'substantially limits.' The Department does not believe that a definition of this term is possible at this time.' Appendix A, p. 419. OCR has ruled that the phrase is to be defined by the local educational agency, and not OCR. Letter to McKethan, 23 IDELR 504 (OCR 1994). Schools can reasonably adopt the definition provided in the Legislative History to the Americans With Disabilities Act. Under the ADA, a major life activity is substantially limited when 'the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.' [House Report No. 101-485 (II), p. 52.].

Question 5: Is there a list of disabilities that qualify a child for Section 504?

No. The Department of Education did not provide a list of qualifying impairments as exists under the IDEA. The appendix to the regulations indicates that the absence of a list was entirely intentional. 'The definition does not set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list. The term includes, however, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and, as discussed below, drug addiction and alcoholism.' Appendix A, p. 419.

Question 11: Can a student be dismissed from 504?

Absolutely. Once a student no longer meets eligibility requirements (that is, he no longer has a physical or mental impairment that substantially limits one or more major life activities), the 504 committee can dismiss him from 504. That child is no longer eligible for 504 services. However, since he is a child with a record of a disability, he continues to receive protection under 504 from discrimination by the district. No further 504 meetings are required for this child following his dismissal, unless the district believes that he is again eligible for services at some point.

Question 12: Do we need a diagnosis from a medical doctor in order to identify a child as disabled under 504?

No. Schools are sometimes reluctant to qualify a child under Section 504 because of ADD/ADHD unless they have a medical diagnosis which supports that eligibility. However, the 504 regulations include no requirement that the district must have a medical evaluation in order to determine a child eligible under 504. An OCR decision issued in 1992, on an IDEA (special education) student provides additional support for the notion that no medical diagnosis is required. Letter to Parker, 18 IDELR 965 (OCR 1992). Here, OCR indicates that for purposes of compliance with the IDEA (and in the absence of more specific state law requirements on eligibility) no medical evaluation by a licensed physician is needed to find that the child with ADD/ADHD qualifies as Other Health Impaired (OHI). 'If a public agency believes that a medical evaluation by a licensed physician is needed as part of the evaluation to determine whether a child suspected of having ADD meets the eligibility criteria of the OHI category, the school district must ensure that this evaluation is conducted at no cost to parents. However, if a school district believes that there are other effective methods of determining whether a child suspected of having ADD meets the eligibility requirements of the OHI category under Part B, then it would be permissible to use other qualified personnel to conduct the evaluation, so long as all of the protection in evaluation requirements of 34 CFR Sections 300.530-300.534 are met.'

In other words, if no medical evaluation is required under federal law for special education eligibility (which involves more severe disabilities and access to more extensive special education and related services) the same is true under 504. That does not mean that districts should ignore medical diagnoses when they are available. The district's obligation is to carefully consider all evaluation data, including a medical diagnosis. 34 C.F.R. 104.35(c)(2). The district should likewise be careful not to put too great an emphasis on a medical diagnosis, for the existence of a disability alone, without a substantial limitation on a child's major life activity at school means no eligibility.
Question 13: If a student is dismissed from special education, how could he possibly qualify under 504 for services when his disability remains the same? How can a disability qualify a child for 504 but not IDEA?

The key to understanding this difference lies in the severity of the disability. Remember that the IDEA exists to provide special education and related services to the students with the most severe disabilities. Those students are entitled to significant services and procedural protections. 504 students, on the other hand, are less severely disabled, and in need of fewer services and in receipt of less extensive procedural protections. In Texas, for example, a student with a 16 point discrepancy between IQ and achievement who needs special education and related services has a learning disability under the IDEA. It is possible over time for that discrepancy to narrow (to 13 points, for example) so that on reevaluation, the student no longer has the necessary 16-point discrepancy, and thus is no longer eligible under the IDEA. The student still has a 13 point discrepancy, and still obviously has a learning problem. If the child still needs modifications, he likely qualifies under 504 with the same disability that no longer is severe enough to qualify him for IDEA.
Question 18: When does a student's passing grades not constitute evidence of educational benefit?
When the passing grades hide a lack of progress on goals and objectives. Question 8 sets out the general rule that passing grades and advancement from grade to grade is evidence of educational benefit. That general rule is subject to exception. In a special education decision from Indiana, the hearing officer was faced with a claim for reimbursement for private placement. The school argued that the student had progressed from grade to grade, invoking Rowley. The hearing officer was less than impressed with the district's program, especially when she determined that although the student was being promoted, he could not read, and was not making progress to that goal. 'The appropriateness of past services provided by the LEA is best judged by a review of objective evidence, such as a student being unable to read, lacking word attack skills, and being very deficient in decoding. The attainment of passing grades and regular grade advancement, although generally accepted by courts as indicators of satisfactory progress is only one factor..... Here, it is deemed a very small factor compared to the other evidence of the student's inability to do basic reading and being unable to properly decode words.' Duneland School Corp. (IN), 31 IDELR 222 (Special Education Hearing Officer 2000). Similarly, for the 504-only child, where passing grades are given merely to secure a social promotion (having little to do with the child's achievement), they will not evidence receipt of educational benefit. In short, for the grades and promotions to have value as evidence of educational benefit, they must be based on, and accurately reflect, the student's educational performance."