This is another series of short articles on the differences between IDEA and Section 504 for parents of children with disabilities. In past blogs, I mentioned that the Child Find requirements of the IDEA and Section 504. I recently was retained by a mother who has a daughter that was diagnosed with Type I Diabetes. The school system developed a Section 504 Plan for the student with appropriate accommodations to address her medical needs while at school. For example, the student is permitted to have water bottles in classes and take frequent bathroom breaks. But the mother also advised the school system that her daughter was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The school system, however, simply noted that the student had a diagnosis of ADHD and Oppositional Defiant Disorder (ODD) on the Section 504 Plan. The school system did not take any steps to identify, locate, and evaluate the student who has a disability to determine her eligibility for special education and related services under the IDEA or her eligibility for special education or related services under Section 504. In the meantime, the student increasingly exhibited behavioral problems arising from her ADHD and Oppositional Defiant Diagnosis. As a result, the school system employed increasingly began to employ more harsh discipline such as out-of-school suspensions. Over time, the student’s behavior worsened.
At the beginning of the 2012-2013 school year, the mother gave the school system a copy of a psychological evaluation that showed her daughter had a continuing diagnosis of ADHD. Did the school system take steps to locate, identify and evaluate the student to determine her eligibility for special education and related services under the IDEA or special education or related services under Section 504. No. Instead, the school system ignored the student’s ADHD diagnosis and now is taking steps to impose long-term suspension or expulsion against the student for chronic disciplianry problems. Does this sound like a situation you have faced as a parent? If so, there are legal options for you.
If the school system does not timely locate, identify, and evaluate a child suspected of having a disability and then attempts to suspend or expel that child because of behavioral problems, you can request a due process hearing. You should consult with a special education attorney before you request a due process hearing. Under the IDEA, when a parent requests a due process hearing, the IDEA provides in most cases that the child must remain in his or her current educational placement during the pendency of the proceeding. In other words, the school system cannot remove your child from his or her current educational placement except in limited circumstances.
In the example, the parent with a child that has been diagnosed with Type I Diabetes, ADHD and ODD has requested a due process hearing. This should invoke the stay-put procedures of the IDEA to prevent the school system from suspending or expelling the student at the school disciplinary hearing. You can also combine any claim that you may have under Section 504 with the IDEA in request for e due process
