This is the third installment of posts concerning some differences and similarities between the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). In prior post, I summarized the Child Find obligations of the IDEA and Section 504. Here there are significant similarities in the requirements of both Federal laws that require school systems to identify, locate, and evaluate all students within its jurisdiction, including private and charter schools, for example, that are suspected of having a disabilities. I noted, however, that the evaluation requirements of the IDEA are much more specific than those provisions of the Section 504. I also summarized the eligibility requirements of the IDEA and Section 504. For Section 504, a student must simply have a disability that substantially limits one or more major life activities. On the other hand, to qualify under the IDEA, a student must have a disability that adversely affects the student’s educational performance and is in need of special education and related services. It is when the school system is first considering eligibility under the IDEA that parents find more difficult to challenge.
The reason for parent’s consternation concerning IDEA eligibility is that schools systems do not have a uniform formula for determining eligibility. For instance, Floyd County School System may have a broad interpretation of what constitutes “a disability that adversely affects educational performance” while Lowndes County may have a much more narrow interpretation of this provision. From experience, I would opine that IEP committees within school systems can greatly vary in their own interpretation of this provision. To one IEP committee, a disability that adversely affects educational performance may mean a disability that only adversely affects academic performance. To another IEP committee, a disability that adversely affects educational performance may mean academics, communication, social, sensory, executive functioning, behavioral, and vocational. Which one is correct? There is no hard and fast rule to follow except that courts have been uniform in holding that school systems cannot consider just academics alone in determining whether a student’s disability adversely affects educational performance. Therefore, a parent should question IEP members that insist the only test is whether a student’s academic performance is adversely affected by a student’s disability. How often have you heard an educator or administrator say at an IEP meeting that the child is passing all of his classes so he really does not need special education? This is not the test, however. You can have a child with a high intelligence test score that is passing all of his classes, but still qualifies for IDEA eligibility and special education. A good example is a child with dyslexia who often has an above average intelligence test scores and passing grades but still cannot read. And what happens if the IEP eligibility committee members say that the student’s disability may adversely affect his educational performance but he does not need special education and related services. You may want to seek the services of a special education attorney for advice on to handle this proboem. More on this and other eligibility issues in the next blog. . . .