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Section 504 of the 1973 Rehabilitation Act[1] provides for accommodations for students who have disabilities and need extra assistance at school[2]. As long as the student has some type of significant diagnosed disability (either from a health care provider, therapist or psychologist), that student is eligible for consideration of accommodations under Section 504. A student who qualifies for Section 504 protections will generally get a document called a Section 504 Plan which outlines the areas of need and the necessary accommodations, and also tracks the student’s progress. Students protected by Section 504 are entitled to a Free Appropriate Public Education “FAPE.” FAPE means that a student who is eligible for Section 504 must be provided regular or special education and related aids and services that are designed to meet the individual educational needs of the student with a disability as adequately as the needs of a student without a disability are met.[3] In other words, schools must meet the needs of students with disabilities as well as they meet the needs of students without disabilities. Schools also must educate students with disabilities with their peers without disabilities as much as is appropriate to the needs of the student with a disability, as well as evaluation and procedural safeguard rules. You can read more about Section 504’s FAPE requirements at: http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html#note2.
Some examples of 504 plan accommodations include allowing for extra time on tests, special seating, time out, mentoring, “peanut-free” zones, accommodations for missed time due to frequent doctor visits/illness, assistive technology, and incentive structures for students with disabilities. These types of accommodations are available to students with disabilities who need additional assistance to succeed in school. Typically, students who have Section 504 plans need minimal accommodations in mainstream or regular education classes.
For example, many students with 504 plans are children with ADHD or emotional/behavioral issues who need assistance in refocusing, test taking, behavior modification, or prompting. Others have a medical disability like diabetes, asthma, bowel disorders, or arthritis, which requires physical accommodations such as rest breaks, flexibility with absences due to doctor visits/illness, changes to physical education, frequent bathroom breaks, assistance with /monitoring of medication, development of a healthcare plan and more.
The Americans with Disabilities Act “ADA”[4] makes it illegal for state and local governments, including school districts, from discriminating against people on the basis of disability. The ADA also applies to non-religious private schools because they are “public accommodations.”[5] Public accommodations are businesses, places and organizations that are used by the public.
For the purposes of the ADA, “nondiscrimination” means that it is illegal to exclude, segregate, or provide students with disabilities unequal treatment. In order to treat students with disabilities like other students without disabilities, the ADA requires that schools consider reasonable accommodations. The ADA also imposes some specific accessibility and architectural (the physical parts of a building) standards on covered school buildings. Individuals with significant disabilities are protected by the ADA. The requirements of the ADA are very similar to those of Section 504 and often both laws apply to protect the same student[6].
Under the Individuals with Disabilities Education Act[7], more commonly called “IDEA”, students with specific disabilities receive special rights and services based on their individual needs. Each student identified under IDEA is entitled to a free appropriate public education (“FAPE”). Delaware law defines FAPE: a student with a disability’s education must be individualized to meet the unique needs of the student, provide significant learning to the student, and confer a meaningful benefit to the student that is gauged to the student’s potential[8].
In order to qualify under IDEA for special education services, a student must be classified as having one or more of the following:
Every school has an obligation to identify and serve students with disabilities. However, it is not unusual for a parent/guardian to request that his or her child be evaluated for special education services when the school has not independently initiated an evaluation. If you request an evaluation for special education, the school has 45 school days/ 90 calendar days to begin the evaluation process after the school receives your written consent to evaluate. However, if the student has been suspended/expelled/placed in alternative placement, a parent can request that the evaluation be expedited. A sample evaluation request letter can be found at the end of this guide.
The IDEA requires school agencies to provide each student with an Individual Education Program (“IEP”). The IEP is a document developed and implemented by a team composed of parents, teachers, and specialists who will work together to provide services to the student. Initial diagnostic tests and evaluations will be completed by specialists. The IEP team will then use these assessments to create the IEP, which lists the services needed by a student with special needs.
The IEP will spell out the specific goals of the student and the type and duration of related services such as therapists, aids, or assistive technology. The plan will also spell out the student’s current level of performance and accommodations for the state testing. The plan further determines the student’s placement, which can range from mainstream regular education classes to a self-contained classroom or a private placement. A student’s education has to be provided in the least restrictive environment (“LRE”), meaning students with disabilities should be educated with their peers without disabilities as much as possible.
Once the parent/guardian, or student (if over 18), agree to the IEP document the team can begin to implement it. At any time after the IEP begins, you always have the right to request an IEP meeting or a reevaluation if you feel that parts of the IEP are not appropriate.
[1] 29 U.S.C. § 794; 34 C.F.R. Part 104.
[2] Section 504 applies to recipients of federal funds which includes public schools and many private schools (e.g., they participate in the national school lunch program and school breakfast program)
[3] 34 C.F.R. §104.33.
[4]42 U.S.C. § 12131 et seq.
[5]42 U.S.C. § 12181 et seq.
[6] Section 504 only applies to schools that receive federal funding, so it applies to public schools and many private schools – including religious private schools (e.g., private schools that participate in the national free lunch and/or breakfast programs).
[7] 20 U.S.C. § 1400 et. seq.
[8] 14 Del. C. § 3101(5).