By Marion M. Walsh, Esq., Littman Krooks LLP

The Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) protect the rights of students with disabilities in public schools. Often, parents have confusion about the two laws, as there is some overlap, and the terms and protections can be confusing. Here are some questions and answers.

What are the Basic Differences between IDEA and Section 504?

The IDEA, initially passed in 1975, is a comprehensive statute established by Congress with a dual purpose: 1) to ensure that students with disabilities are afforded a free appropriate public education (“FAPE”) through an Individualized Education Program (IEP); and 2) ensure that the rights of students with disabilities and parents of such students are protected, through extensive procedural safeguards.

A  FAPE consists of special educational instruction that is designed to meet the unique needs of a student, supported by such services as are necessary to permit the child to benefit from the instruction.  The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. Courts measure whether students have received a FAPE, by reviewing whether an IEP provides or offers a program reasonably calculated to produce educational benefits in accordance with the student’s unique circumstances.

Section 504, passed in 1973, represents the first federal civil rights law for individuals with disabilities. Students with disabilities are entitled to protection from discrimination and reasonable accommodations. The law provides that:

• [n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.

While IDEA is phrased in terms of a state’s affirmative duty to provide a free, appropriate public education, the Rehabilitation Act is worded as a negative prohibition against disability discrimination in federally funded programs. In other words, Section 504 provides relief from discrimination, whereas the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination.

Do both IDEA and Section 504 Protect Students after High School Graduation or Aging Out?

Only Section 504 protection extends beyond high school graduation or when a student ages out of special education.  When a student with a disability graduates from high school or ages out of special education at 21 in New York, protection under IDEA and the entitlement to a FAPE ends.  In contrast, Section 504 protection extends into adulthood and requires any institution that receives federal funding, such as most colleges and many employers, to comply with Section 504.

What are the Eligibility Criteria for Students under IDEA and Section 504?

A student classified under IDEA must have a disability that falls into one of 13 categories, such as, to name just a few categories, autism, a speech language impairment, an other health impairment, an emotional disturbance, or a specific learning disability.  The disability must have an educational impact and the student must need special education services.  The eligibility standard for Section 504 is much broader.  A student will be eligible under Section 504 if the student has a physical or mental impairment that substantially limits a major life activity.  Both laws protect students with mental health challenges or diagnoses, whether the student has a cognitive impairment or learning disability.

Can a Student be Eligible for Protection under both IDEA and Section 504?

Students will not receive both an IEP and a Section 504 plan. All students who are eligible for an IEP under the IDEA will automatically receive protection under Section 504. Students identified under Section 504 are not automatically entitled to protection under IDEA.  However, parents may claim that their child who has a 504 plan should have an IEP if they meet IDEA criteria.

How Does an IEP Differ from a 504 Plan?

An IEP includes special education and/or related services, annual goals, and program modifications and accommodations and is required to be reviewed annually.  As well, districts are obligated to update student evaluations at least every three years (or sooner if agreed upon).

A Section 504 Plan is an accommodation plan that does not include special education services but may include certain related services such as speech or occupational therapy.  There are no annual goals and curriculum may not be modified.  While some districts review Section 504 Plans annually, this is not required; neither are districts obligated to reevaluate students periodically (though parents may request reevaluation). For students with disabilities who do not require specialized instruction but need the assurance that they will receive equal access to public education and services, a document is created to outline their specific accessibility requirements.

Is the Process for Resolving Disputes the Same under IDEA and 504?

Both laws provide for impartial hearings if there are disagreements. Under IDEA, parents may file a due process complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a FAPE to such student. IDEA contains an elaborate mechanism for resolving disputes that requires states to establish regulations and procedures for school districts to follow.  

Section 504 regulations simply require public school districts, rather than the states, to provide a system of procedural safeguards that includes notice, an opportunity to examine records, an impartial hearing, and a review procedure. Although Section 504 regulations state that voluntarily affording the safeguards provided in IDEA satisfies the regulation, it does not require identical procedures; school districts may, if they choose, establish a hearing system different from that which applies to IDEA disputes. Thus, if a parent has a dispute under Section 504, in New York, some school districts use the same impartial hearing process as under the IDEA, while others refer to a school district process for an impartial hearing, without all the mandates of the IDEA process.

The process for seeking the appropriate program through and IEP or Section 504 plan for your child is complicated. If your child, teen or young adult is struggling, it is best to seek the help of an experienced special education attorney. Contact us here or call 914-684-2100 with additional questions.