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My Child with a 504 Plan is Failing, School Won't Help:
Your Eligibility Game Plan

by Pam Wright & Pete Wright

To be an effective advocate for your child, you need to know the differences in the laws that are intended to protect them.

Recently, we received these questions about eligibility from parents - do any look familiar to you?

"My child is in 8th grade. She has a 504 plan. She received two F's on most recent progress reports. When I met with school personnel to request that she receive more help, the principal said, 'She has to fail on her report card before we can test her.'"

"My daughter is diagnosed with bipolar disorder. Before she was diagnosed, she was in gifted and talented classes. Her doctors say she should qualify for an IEP under the 'Other health impairment' category."

"The school says my son must have a discrepancy between ability and achievement to qualify for an IEP but they refused to evaluate him to determine if he has a discrepancy between ability and achievement."

Differences Between Section 504 and IDEA

Most of the information you've received from the school about Section 504 and IDEA is simply not true. To be an effective advocate for your daughter, you need to know the differences between Section 504 and the IDEA.

Section 504 is a civil rights law - the purpose of Section 504 is to protect people from discrimination because of disabilities.

Section 504 is intended to provide access and remove obstacles. Think about Section 504 as the law that requires schools add ramps and elevators to buildings if this is necessary to give disabled children access to the educational opportunities that are available to children who are not disabled.

The purposes of the Individuals with Disabilities Act are different. When you read Findings and Purposes of IDEA, you will see that the purposes of IDEA are:

(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living;

(B) to ensure that the rights of children with disabilities and parents of such children are protected . . .

504 Plan: A Consolation Prize

Many schools offer Section 504 plans instead of IEPs because Section 504 requires less of them. Unlike the IDEA, Section 504 does not create a right to a free appropriate education from which the child receives educational benefit. Section 504 does not require schools to invite parents to the meeting where the 504 Plan is developed.

Dr. Perry Zirkel is a law professor who has written extensively about Section 504. Dr. Zirkel says schools often use 504 Plans as "consolation prizes" when students do not have a required discrepancy between ability and achievement - and this is a big mistake!

Your Game Plan

Learn About Your Child's Rights & Responsibilities Under 504 & IDEA

Before you take any action, you need to do your homework. You are frustrated, confused, and frightened. Please read our article, Emergency, Crisis, Help!

You need to learn what these two laws - IDEA and 504 really say. If you don't do this, you won't understand the differences between these laws. You can get all the information you need from the Wrightslaw site. (See the resources listed at the end of this article.)

Wrightslaw: Special Education Law, 2nd Edition includes the IDEA and Section 504 statutes, regulations and commentary about IDEA and Section 504.

Read the law and regulations about eligibility for special education services. I can tell you what the laws say (and doesn't say) but you need to read it for yourself.

Bottom line: Kids who have a disability but are getting passing grades can be eligible for special education services under IDEA.

If you have a copy of Wrightslaw: Special Education Law, 2nd Edition, you will find that the law does not mention grades.

The law does not say a child must fail before the school can evaluate to determine if the child if the child is eligible for special education services under the IDEA. According to IDEA, the child's parent or school staff may request an evaluation.

BUT if the principal or other administrator thinks the law says the school cannot evaluate until after your child receives failing grades on her report card, you need to know this.

You negotiate with the school on your daughter's behalf. When you negotiate with school personnel, you need to understand their perceptions, beliefs, interests and fears. The principal's perception about the laws is important information that will help you decide how to approach the principal to resolve the problem.

Get a Comprehensive Evaluation

You need to get a comprehensive psychoeducational evaluation of your daughter by a good child psychologist or educational diagnostician in the private sector who specializes in diagnosing and treating children with disabilities. Explain your situation to the evaluator.

A comprehensive evaluation will tell you what's going on with your child, what she needs - and give you a roadmap for the future. Ask the evaluator to make recommendations about what educational services and help your daughter needs - and what will happen if the school does not provide these services (i.e., her bipolar disorder may get worse, she may be at risk for inpatient hospitalization, she may be more likely to drop out of school, the failure to provide services will damage her).

After you get this evaluation (which is different from an independent educational evaluation paid for by the school), you will have information about your daughter's needs from an independent expert who is not acting as a gatekeeper.

Get this evaluation BEFORE you request any additional services from the school.

Many school personnel view themselves as "child experts" and do not believe parents know what their children need. When you have recommendations from your evaluator, you can ask the school to provide these services.

If you anticipate that the school will resist, ask the evaluator to attend a meeting with school personnel. The evaluator can to explain the nature of your daughter's disability, answer questions, and educate the educators. This will help you get "out of the loop" as the expert on your child.

GatekeepersStrategies: Dealing with Gatekeepers

The principal may be acting as a gatekeeper. She may assume that if she tells you that the school cannot evaluate until your daughter fails, you will give up and go away. If you have read about who can request an evaluation under IDEA, you know she is wrong.

If you force the issue and demand that the school evaluate your child, the school evaluation is likely to find that she is not eligible for any help - and that her problems are your fault!

Remember what gatekeepers are supposed to do - the principal is doing her job!

I know this is confusing and frustrating. When you watch your daughter fail, you are afraid for her. She needs your support. Reassure her that you believe in her.

If you take these steps - read the laws and regulations so you know what they say and do not say, get a comprehensive evaluation by an evaluator in the private sector, and learn to deal with gatekeepers, it is more likely that your daughter will get the help she needs.

Resources: Section 504 and IDEA

Section 504 - the page has dozens of articles about rights and responsibilities under Section 504.

IDEA 2004 - this page is about rights and responsibilities under IDEA 2004. The reauthorized law went into effect in July 2005.

IDEA 2004 Regulations - On August 3, 2006, the U. S. Department of Education published the IDEA 2004 regulations as two preambles (1244 pages), the regulations (374 pages), and five Appendices (90 pages) for a total of 1,705 pages. All IDEA 2004 Regulations were reformatted and published on the Wrightslaw site. The reformatted regulations are 115 pages long (down from 374 pages). They are easier to read, print and study.

IDEA 2004 Regulations.

Resources: Advocacy

Good special education services are individualized, intensive and expensive. Schools often balk at providing intensive services. What can you do?

You need to use advocacy tactics and strategies to anticipate problems, manage conflict, and avoid crises. If you have a dispute with the school, tactics and strategy will help you control the outcome.

The Advocacy page has links to dozens of articles, free books and newsletters and other resources. Here are links to a few of these articles:

Crisis! Emergency! Help! Learn how parents damage their credibility and their child's case by assuming they must DO SOMETHING! If you are in a crisis, this article is a "must read" for you, and for all parents who want to avoid school crises.

My Child's Test Scores Dropping, School Doesn't Care - What Can I Do? Sue Whitney advises this parent, "You need a game plan. Before you can devise a game plan, you need to gather information, manage your emotions, and do your homework."

Parent Advocacy: What You Should Do - and Not Do. Good advice from attorney Leslie Margolis about steps parents can take to get quality educational services for their children with disabilities.

Asking the Right Questions. How does the school perceive you? Good article about how to ask questions and get better services.

Assertiveness and Effective Parent Advocacy. This short article by advocate Marie Sherrett describes joys and challenges of parent advocacy. What categories do you fall into?

From Emotions  to Advocacy - The Parents Journey. Strong emotions cause parents to react, often with damaging results. If you are having a problem with the school, use your head. Don't shoot yourself in the foot!

Rev: 04/27/15

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