What is FAPE? (Part 2)

Section 504

In an earlier post I discussed FAPE (“Free Appropriate Public Education”) in the context of the Individuals with Disabilities Education Act (IDEA).  I recommend that you read that post before reading this one.  This post addresses FAPE in the context of Section 504 of the Rehabilitation Act of 1973.  Section 504 and the IDEA are two separate laws that overlap.  Generally, all students covered by the IDEA are also covered by Section 504, but the reverse is not true.  There are students who are covered by Section 504 who are not covered by the IDEA.  Section 504 contains its own distinct FAPE requirement, and there is a somewhat complicated interaction between 504 and the IDEA.

One difference between the two laws stems from their definitions of who qualifies for services.  The IDEA requires that a qualifying student have one from among a specified list of disabilities and thereby be in need of special education and related services.  So, the student’s need for special education is built into the definition of a “child with a disability.”  It’s possible for a student to have one of the specified disabilities, but if he or she does not need special education or related services because of it, then the child does not qualify under the statute as a “child with a disability.”

Section 504 is broader.  Its definition of ” handicapped person” applies both to students with disabilities who need special education, and those who are in regular education but need accommodations.  Section 504’s definition of FAPE states:

… the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met … (emphasis added)

Unfortunately, the 504 regulations still use the outdated language of “handicap” and “handicapped person.”  Setting that aside, the definition requires that school districts meet the needs of students with disabilities as adequately as the needs of non-disabled students are met, even if the student does not need special education.  A classic example of the difference might be a student with mobility impairments who uses a wheelchair but performs well academically, behaviorally, etc.  The student has a disability, but because he or she does not need special education, the student does not qualify for special education.  The student probably, however, needs some accommodations for his or her regular education to be made accessible.  If, for example, the school library is on an upper floor of the building, access to it via ramps or an elevator should be provided, or if that’s not feasible, access to the library’s catalog might be provided via a computer terminal that is accessible to the student.  This student would qualify for a service plan under Section 504.

As stated above, all students who qualify for special education under the IDEA are also covered by Section 504.  A school can meet its obligations to special education students under Section 504 by providing an IEP pursuant to the IDEA.  If a school denies a student’s eligibility under the IDEA, it is supposed to then automatically consider the student’s eligibility for a 504 plan.

Often, parents sees the interaction of Section 504 and the IDEA when their child has Attention-Deficit Hyperactivity Disorder.  Sometimes a student with ADHD may qualify for special education via an IEP.  Other times, the student is instead accommodated with a 504 plan.  It’s sometimes reasonable for a school to follow either route.  The pattern I have noticed is that students with ADHD who tend more toward the attention-deficit end of the spectrum are often best served with an IEP and special education.   The IEP may address attention related issues with modified teaching strategies (e.g., more repetition by the teacher and student) or services related to the student’s executive functioning such as organization, planning, assistance with tracking homework, etc.  Students who tend more toward the hyperactive end of the scale, however, can often be served with accommodations in a 504 plan such as preferential seating, breaks to stand up and move around, a standing desk, or other accommodations.

Generally, procedural safeguards that protect the rights of parents and students are more robust under the IDEA than under Section 504.  If you have any questions about your child’s IEP or 504 plan, please reach out to our office for a consultation.

References

The IDEA’s definition of “Child with a Disability” is found in the Code of Federal Regulations at 34 C.F.R. §300.8.

The Code also contains Section 504’s definitions of “disability” and “free appropriate public education” at 34 C.F.R. §104.3(j) and 34 C.F.R. §104.33, respectively.

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