Protecting the Rights of Our Children with Special Needs at School

Protecting the Rights of Our Children with Special Needs at School

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Five basic facts you need to know

Before I started working at a law office that specializes in educational law, I only vaguely knew the difference between a 504 plan and an individualized educational plan (IEP). However, with parents from the neighboring districts calling our office every day to consult with our attorney, I’ve learned a lot about education law in a short period of time. Below I share with you the basics.

1. What’s the difference between an IEP and a 504 plan?

At first glance, IEPs and 504 plans look very similar, but generally, an IEP is far more reaching than a 504 plan.

A 504 plan is a plan that describes specific accommodations that will be put in place to help a child succeed academically. It is part of the Federal 1973 Rehabilitation Act, Section 504, which is why people refer to them as 504 plans. If your child’s school receives any form of federal funding, the school must adhere to Section 504 and cannot discriminate against providing children with 504 plans an education, even if the school has to make reasonable accommodations.

An IEP is a specialized education experience provided to a child under the Individuals with Disabilities Education Act (IDEA), which essentially trumps a 504 plan. Though IDEA is a federal law, many private schools do not have to adhere to it because they do not receive the same type of funding that public schools receive to provide special education.

There are no categorical restrictions as to what supports and services may be appropriate with an IEP or a 504 plan, though a student cannot receive both at the same time. A school administrator cannot say, “That service isn’t available under 504 . . . ” because the services and support offered to your child are based on your child’s individual needs. However, the administrator can recommend that your child be considered for special education under an IEP rather than accommodations within a 504 plan. Further, though a student cannot receive both types of services, children who are IEP eligible are also still covered under the laws of Section 504 because they cannot be discriminated against based on their disability—all students with IEPs and 504 plans are covered by this important civil-rights legislation.

2. Who is eligible for an IEP or a 504 plan?

To qualify for an IEP, a child must have one or more of the 13 specific disabilities listed in the IDEA legislation, and the disability must affect the child’s educational performance and/or the child’s ability to learn within a mainstream classroom.

For a child to qualify for a 504 plan, a child can have any disability, and the disability must interfere with the child’s ability to learn within a mainstream classroom. Parents of children with IEPs or 504 plans generally do not have to pay for testing, services, or accommodations, though they may opt to pay for testing through an outside evaluation. Parents can always ask the school to pay for an Independent Educational Evaluation for IEP services, but that option is not available for 504 plans.

3. Can my child be denied the opportunity to play sports or participate in an activity because of his or her disability?

No. Under the laws of Section 504, a student cannot be discriminated against because of his disability if he wants to participate in sports or after-school activities. Although church-sponsored programs are exempt from adhering to the Americans with Disabilities Act (ADA), the ADA does cover almost every organization that would sponsor an after-school activity and bars any program from rejecting a student solely based on a disability. The ADA requires programs to accept all students when a reasonable accommodation can be made; otherwise, a program must demonstrate that accommodating the student would cause an “undue burden” on the program, typically a financial burden.

4. What if I don’t like the classroom in which my child is placed?

The biggest issue our law office sees with special-education students is that parents want to immediately move their children out of a classroom when they feel their child is being treated unfairly or they simply do not agree with or like a teacher, which is not always in the best interest of the student. Sometimes, a classroom is specifically chosen for an IEP student with the student’s disability in mind because that child’s IEP team felt the student would thrive in that classroom. It is an undue burden on a school to change a child’s classroom every time a parent requests one, but if the IEP team requests a classroom change, it could force the school to comply.

5. Should I lawyer up when something goes wrong?

Many parents will jump through hoops to protect their children at school, and rightly so. However, immediately calling a lawyer may not always bring the quickest, satisfactory resolution, and not every family can afford legal fees. If you have a dispute with your child’s school, your first request should be to schedule a meeting with your child’s IEP or 504 team. A special-education advocate may also be an option for those who would like added support and knowledge without the expense of legal representation. If a team meeting does not resolve the issue, then parents generally can file a complaint with the state or the Office for Civil Rights and/or file a lawsuit.

For more information, check out these articles by Anna Stewart, ESME’s Special Needs Resource Guide: “Help! They Are Ignoring My Kid’s IEP?” and “Power Up Your IEP.”

What other advice would you give a Solo Mom who is parenting a school-age child with special needs?

Tara Glenn is a Solo Mom of four who currently resides in Pensacola, Florida. She has a background in public affairs, writing, and photography. Tara spent five years in the Navy and now volunteers with the Civil Air Patrol as a public affairs officer. She enjoys working with small businesses as a ghostwriter as well as encouraging her children’s love for aviation in her free time—the running joke being that she only creates pilots, as all of her children love to fly!

Please feel free to contact us with any comments or questions.

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