A student who has an Individualized Education Plan (IEP) is a student who has a disability that is impeding the student’s ability to learn. Not every disability impedes the ability to learn, however. Examples might include having diabetes, cancer, epilepsy, using a wheelchair or crutches. If your child has a disability that does not impede her ability to learn (meaning no IEP), what law protects her if she needs an accommodation? Section 504 of the Rehabilitation Act of 1973. It is more relevant than ever.
I’ve heard Sect. 504 plans called IDEA-lite (IDEA is federal law controlling IEPs) because it gave “something” to students with disabilities who don’t qualify for IEPs. A student with a disability, but where his or her ability to learn was not affected, would often get a health or nursing plan. For example, a child with diabetes would receive shots at certain times. These plans, unlike IEPs, lacked enforceability. Parents had to rely on the good will of the school to see that accommodations or services were provided in such a health or nursing plan.
That changed with new ADA regulations (affecting Section 504) and clarification from Congress that students with disabilities are entitled to evaluation to determine if a Sect. 504 plan is necessary. In fact, the Office for Civil Rights held that a school placing a child on a “health plan” violated the law by not evaluating for a Sect. 504 plan, in violation of the district’s child-find mandate.
Why does it matter that the school must evaluate for a Sect. 504 plan, even if it puts the child on the country’s best individualized health plan? Accountability. Procedure. Remedies. The best individualized health plan is only beneficial if it is fulfilled, if procedures are adhered to. If this very-best-health-plan isn’t followed, then there is no enforcement mechanism. There is no federal (or possibly state) law to turn to for holding the school accountable. To the contrary, if a Sect. 504 plan is not followed, the school can be held accountable under federal law, and remedies can be sought under federal law. We want to believe that our child’s school will do what it agrees to do, but we also want a law to invoke if the school doesn’t.
Contact me at firstname.lastname@example.org with any Sect. 504 or special education questions.