I receive requests from parents from time to time asking me whether there is a difference between eligibility for a child with a disability under the Individuals with Disabilities Education Improvement Act of 204 (DEA) compared to implementing regulations under Section 504 of the Rehabilitation Act of 1973 (Section 504). Yes, there are considerable differences. But for the sake of brevity, I will address only a few of these differences in this blog.
To begin, both the IDEA and Section 504 require every school system and even private schools within a district to identify, locate , and evaluate every child suspected of having a disability. 34 C.F.R. 300.111; 34 C.F.R. 104.32, 104.35. Under the IDEA, the school system’s obligation is to identify and evaluate a child with a disability that may meet one of the eligibility categories under 34 C.F.R. 300.8(c). Under Section 504, an individual with a disability is broader and means an individual with a physical or mental impairment that substantially limits one or more major life activities. There are instances that a school system believes that the individual does not have a disability that qualifies the student for special education and related services under the IDEA, and instead conducts an evaluation only under Section 504. This may be a mistake, however. If a school system fails to timely identify and evaluate a child that may qualify for special education and related services under the IDEA, it may be liable for failing to comply with the “child find” requirements of the law. 34 C.F.R. 300.111. Often many parents find their child only qualified for “accommodations” under Section 504, but in reality, their child may qualify for special education and related services under the IDEA. Thus, it is critically important that parents ask school systems to consider first evaluating their child for eligibility under the IDEA and then if their child does not qualify then to consider him or her for eligiblity under Section 504. Do not let the school system bypass IDEA eligibility for your child and let the district skip to Section 504 eligibility. You should consult with an advocate or attorney in the event that you are told that your child will not be evaluated for eligibility under the IDEA Why? In the next installment of this blog, you will find out why.