Transcript SPECIAL EDUCATION - Maryland Family Law Attorney, Dawn A. …

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:
1.
denying a student the opportunity to participate in or benefit from a benefit or
service,
2.
providing an opportunity to participate or benefit that is unequal to that
provided others,
3.
providing a benefit or service that is not as effective as that provided to
others,
4.
providing lower quality benefits, services or programs than those provided
others, or
5.
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.
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…