In a recent post, I began an explanation of the differences between Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and 34 C.F.R. Part 104, and the Individuals with Disabilities Education Improvement Act of 2004 or commonly referred to as the IDEA, 20 U.S.C. 1401 et seq., and 34 C.F.R 300.1 et seq. There some similarities between these two federal laws and regulations and there are some differences as well. I will give you some further similarities and differences between Section 504 and the IDEA in this post.
It is important to remember that eligibility for reasonable accommodations under Section 504 begins at birth and ends at the individual’s passing. In other words, if an individual is deemed an individual with a disability at birth, it is possible that individual may remain qualified under Section 504 for reasonable accommodations for the remainder of their life. The key test for determining eligibility of an individual with disability under Section 504 is whether they have a physical and/or mental impairment that substantially limits one or more major life activities. For example, if an individual is born with a severe mental and/or physical disability that substantially limits one or more major life activities then it is likely he will be otherwise qualified to receive reasonable accommodations for the remain of his life in a program or activity that receives Federal financial assistance and to recipients that operate or that receive Federal financial assistance for the operation of, such programs or activities. 34 C.F.R. 104.31. This means that an individual with a disability may be eligible to receive reasonable accommodations in the workplace, college, or university that receives Federal financial assistance. The Americans with Disabilities Act (ADA) provides further rights for individuals with disabilities who work in the private sector, attend a private college or university, use private accommodations such as hotels, movie theatres, museums, and other private places. I will not, however, go into a more detail explanation of the ADA at this time. I just want to give you a general idea of what protections the ADA provides individuals with disabilities.
For children with disabilities aged birth through graduation from high school, Section 504 provides certain protections and rights. A public school system shall annually identify and locate every qualified child with a disability in its jurisdiction who is not receiving a public education and take appropriate steps to notify the child’s parents or guardians of the school system’s duty to provide a free appropriate public education to that child. 34 C.F.R. 104.32. This is commonly referred to as child find responsibilities of the school system. Similarly, the IDEA also requires school systems to identify, locate and evaluate children who are suspected of having a disability. 34 C.F.R. 300.111. This child find responsibility for school systems under Section 504 and the IDEA is important because it requires schools to affirmatively identify and locate children who are suspected of having a disability. School systems in Georgia use a variety of procedures to meet this requirement. Many of you may be familiar with the SST or Student Support Team. It may be referred by another name or title but its purpose is the same. That is to convene a group of educators to determine if a child may have a disability (which may be different meaning under Section 504 as opposed to the IDEA), and refer that child for a psycho-educational evaluation. The evaluation is used by an eligibility team to determine the child’s eligibility under either Section 504 or the IDEA. Again, it is worth repeating that if an IDEA eligibility team or committee determines that a child is not eligible for special education and related services under the IDEA, then it must refer that child to another eligibility team to determine his eligibility for a free appropriate public education under section 504. In my 32 years of practicing special education law, I have found some school systems do not adhere to this requirement.
I have received calls, emails, and other communications from parents who tell me the eligibility team or committee did not determine their child qualified for special education and related services under the IDEA, but then the team or committee did not refer the child for a determination of eligibility under Section 504. This may be a violation of Section 504. As I discussed, the child find requirements of the school system apply to both Section 504 and the IDEA. Just because a child does not qualify under the IDEA for special education and related services does not mean the child does not qualify under Section 504 for accommodations and a free appropriate public education. Parents can challenge the school system’s failure to meet this requirement by filing a complaint with the United States Department of Education Office for Civil Rights in Atlanta, Georgia and claim the school system did not comply with the child find mandate of Section 504. A parent also has the right to challenge a school system’s decision to deny special education eligibility under the IDEA by filing a complaint to the Georgia Department of Education, Division of Exceptional Students, within one year of the alleged violation or by filing a due process complaint against the school system within two years from the time the parent knew or should have known of this violation as alleged in the complaint. This is a very tricky area of the law. I would strongly suggest that parents consult with a special education attorney before filing a state complaint or due process complaint against the school system to determine if the parent has a meritorious claim for violation of the child find requirements and eligibility determinations under the IDEA.
There is another separate and distinct process to determine whether a child has a special learning disability under the IDEA and is eligible for special education and related services under the IDEA. I will not explain this process now as it is complex and subject, in part, to the professional judgment of educators whether the child has a specific learning disability under the IDEA. I would be glad to explain this process to parents that wish to contact me in the future about this issuer. In the meantime, I will take a break now and will explain more about the differences (and similarities) between Section 504 and the IDEA in the next post.