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Two laws, not one

Claim

Two different federal laws protect students with disabilities at school, and the narrower one is not the only door.

Instrument

IDEA, 34 CFR 300.8; Section 504 of the Rehabilitation Act of 1973, 34 CFR 104.3(j) and 104.33(b)(1); 29 U.S.C. 705(20)(B); 42 U.S.C. 12102(2)(A).

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IDEA covers a child who "needs special education and related services" (34 CFR 300.8(a)(1)). Section 504 covers "a physical or mental impairment which substantially limits one or more major life activities" (34 CFR 104.3(j)(1)).

What it means for you

IDEA works from a list. Its regulation defines thirteen disability terms, and you have to fit one of them and need special education because of it. "Emotional disturbance" is one of the thirteen, and the text asks for something shown "over a long period of time and to a marked degree". ADHD can arrive through a different one, "other health impairment", whose own text names "attention deficit disorder or attention deficit hyperactivity disorder" (34 CFR 300.8(c)). Section 504 has no closed list. Its major life activities are "functions such as caring for one's self", and the sentence runs on through "breathing, learning, and working". That list of activities dates from 1977. The definition Section 504 now uses, written for the ADA, also names "concentrating, thinking, communicating" (42 U.S.C. 12102(2)(A); 29 U.S.C. 705(20)(B)). So a student who does not qualify under IDEA may still qualify under Section 504. Two doors, and the first one closing does not close the second. They can also lead to different things: IDEA leads to special education, written into an IEP, and Section 504 can lead to "regular or special education and related aids and services" (34 CFR 104.33(b)(1)), which can mean changes to how you are taught, tested and treated.

Where it often fails

You are told you did not qualify, and everyone treats that as the end, when the meeting only ever answered the IDEA question. Or grades are used as the test, so a student who is still passing is told there is nothing to look at.

What you can ask for

Ask, in writing, which law the school considered, and ask it to answer for each law separately. Ask what it looked at, and what it would need to see.

Ask for the evaluation in writing

Claim

A parent can ask for an evaluation, the request starts a legal process, and the school pays for it.

Instrument

34 CFR 300.301; 34 CFR 300.300(a); 34 CFR 300.17; 34 CFR 104.33(c) and 104.35(a); 34 CFR 300.504(a); 34 CFR 300.306(a); 34 CFR 300.503.

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"either a parent of a child or a public agency may initiate a request" (34 CFR 300.301(b)). A free appropriate public education is "provided at public expense, under public supervision and direction, and without charge" (34 CFR 300.17).

What it means for you

You do not buy this, and neither does your family. The school is the one that "must conduct a full and individual initial evaluation" (34 CFR 300.301(a)), and if you qualify, the education that follows is free. Under Section 504 the school likewise "shall conduct an evaluation" of a student it believes may need special education or related services (34 CFR 104.35(a)), and the education is "without cost to the handicapped person or to his or her parents or guardian" (34 CFR 104.33(c)(1)). Before the school can evaluate, a parent has to give informed consent (34 CFR 300.300(a)(1)), and the clock starts there, not at your letter. The evaluation must be done "within 60 days of receiving parental consent for the evaluation", except "If the State establishes a timeframe within which the evaluation must be conducted" (34 CFR 300.301(c)). A state can set its own, and the same regulation lists exceptions. The Section 504 regulation sets no number of days at all. So there is a legal timeline, it varies by state, and the way to find yours is to ask the school in writing what it is.

Where it often fails

The ask happens in a corridor, so no date exists. The school offers a stretch of informal help instead, and a term goes by. The consent form is slow to arrive, so the clock never starts.

What you can ask for

Put the request in writing, date it, keep a copy, and ask for written confirmation that it arrived. If the school says no, it owes the parent that refusal in writing, with its reasons (34 CFR 300.503). Ask for the procedural safeguards notice, which a parent is owed "Upon initial referral or parent request for evaluation" (34 CFR 300.504(a)). When the testing is finished the school "provides a copy of the evaluation report and the documentation of determination of eligibility" (34 CFR 300.306(a)), so ask for it and read it.

The plan is a document, and you can ask to be in the room

Claim

An IEP is written down, a parent gets a free copy, and when a meeting will plan your life after school, the school must invite you.

Instrument

34 CFR 300.322(f); 34 CFR 300.321(a) and (b); 34 CFR 300.520; 34 CFR 104.35 and 104.36.

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The school "must give the parent a copy of the child's IEP at no cost" (34 CFR 300.322(f)). The team includes, "Whenever appropriate, the child with a disability" (34 CFR 300.321(a)(7)).

What it means for you

"Whenever appropriate" is soft, but one case is not: where the meeting is about life after school, the school "must invite a child with a disability to attend the child's IEP Team meeting" (34 CFR 300.321(b)). As you get older this can go further. A state may provide that at the age of majority the "rights accorded to parents under Part B of the Act transfer to the child" (34 CFR 300.520(a)); whether yours does is a state question. A 504 plan works differently. The phrase "504 plan" does not appear anywhere in the regulation. What the regulation requires is an evaluation, a placement decision "made by a group of persons" (34 CFR 104.35(c)), and safeguards that include notice and a chance to examine the records (34 CFR 104.36). Schools write the result down anyway and call it a plan, so ask for it in writing and ask for a copy.

Where it often fails

The meeting is scheduled during a lesson and nobody tells you it is about you. A plan exists that you have never read. The teachers who are meant to follow it have not read it either.

What you can ask for

Ask to be invited, and to say one thing at the start. Ask for a copy on paper. Ask that it name who does what, and who is going to tell your teachers.

The ADA covers your school too

Claim

The Americans with Disabilities Act reaches public schools and public colleges whether or not they take federal money, and you do not apply for it.

Instrument

ADA, title II; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; 34 CFR 104.44 for college; 34 CFR 104.7(a).

Quote

Title II "prohibits discrimination based on disability by public entities" (Office for Civil Rights). It applies to "all services, programs, and activities of state and local governments", and the first example the Department of Justice lists is public education (ADA.gov).

What it means for you

Two laws overlap here. Section 504 reaches anything that takes federal money and says no qualified person with a disability may, "solely by reason of her or his disability, be excluded from the participation in" it (29 U.S.C. 794(a)); the ADA reaches public bodies either way. Neither is a benefit programme: "you do not need to apply for coverage" (ADA.gov). That cover goes on after school ends. IDEA's stops once you graduate with a regular high school diploma or pass your state's age limit. IDEA is a school law, for "ages 3 through 21" in school (About IDEA). A public college runs on Section 504 and the ADA instead, and there the duty is to make "such modifications to its academic requirements as are necessary" (34 CFR 104.44(a)), which the text says can include changes to how long you get to finish.

Where it often fails

An accommodation is agreed in a meeting and then does not appear in the exam hall. A student arrives at college assuming the school plan travels with them.

What you can ask for

Ask who your district's Section 504 coordinator is: a school system with fifteen or more employees must "designate at least one person to coordinate its efforts to comply" (34 CFR 104.7(a)). Ask a college's disability services office what it needs from you, and by when.

Where to complain, and the clocks that run

Claim

If the school does not do what the law says, there are four places to go, and federal rules put a clock on three of them: the state complaint, the federal civil rights office and the IDEA hearing.

Instrument

34 CFR 300.151 to 300.153; 34 CFR 300.507(a)(2) and 300.504(c); 34 CFR 104.36 and 104.7(b); the Office for Civil Rights complaint process for Section 504 and title II.

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An IDEA state complaint must allege "a violation that occurred not more than one year prior" to the day it arrives (34 CFR 300.153(c)). At the federal office, "Anyone may file a complaint" (OCR).

What it means for you

Start with the school district, in writing, because it is the nearest door and it builds a record. After that the two federal routes are different things. A state complaint under IDEA goes to your state education agency, which must have written procedures for handling it (34 CFR 300.151(a)), and it asks whether the law was followed. A discrimination complaint under Section 504 or the ADA goes to the US Department of Education's Office for Civil Rights, and it "must ordinarily be filed within 180 days of the last act of discrimination", with a waiver possible if you show good cause (OCR). You are "not required by law to use the institutional grievance process" first (OCR). If you do use the school's process first, the complaint to that office is due "within 60 days after completion of the institutional grievance process" (OCR). There is also a hearing route under both laws: IDEA's is explained in that safeguards notice (34 CFR 300.504(c)) and Section 504's is in its own regulation (34 CFR 104.36). IDEA's hearing has a clock too, and it is the one most easily missed because the route sounds like a last resort rather than a deadline: under IDEA a due process complaint must allege something that happened within two years of when the parent or the agency knew or should have known about it, with some exceptions, unless the state sets an explicit different time limit, in which case the state's applies (34 CFR 300.507(a)(2)). The safeguards notice the school must give you has to state that time period (34 CFR 300.504(c)(5)(i)), so ask for the notice and read that line rather than assuming the two years is yours.

Where it often fails

The clocks run while a family waits politely for the school to come back to them. Nothing was in writing, so no date can be shown afterwards.

What you can ask for

Keep a dated note of what was asked and what happened, each time. Ask your district for its grievance procedure, which a school system of fifteen or more employees must have (34 CFR 104.7(b)). Ask your state education agency for its complaint form.

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