Why I Do Not Recommend Section 504 Plans 
by Pete Wright

Q: Two years ago, the school agreed to provide my child with a 504 Plan, claiming that this was better than an IEP. Several teachers refuse to follow the 504 Plan. Others ignore it. I have scheduled a meeting at the school about these problems and the fact that the  504 Plan is not meeting her needs. Is our situation unusual? What do you think about 504 Plans? How can I get the school to implement it? 

Overview 

There are two primary laws that affect our children - the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.

The purpose of the Individuals with Disabilities Education Act is xxx, yyy

 
Section 504 is a civil rights law. The purpose of Section 504 is to prohibit discrimination against individuals with disabilities. Section 504 ensures that the child with a disability has the access to an education, just as a nondisabled child has. To ensure access, the child may receive accommodations and modifications. 

Unlike IDEA, Section 504 does not require the school to provide the child with an Individualized Education P rogram (IEP) that is designed to meet the child's unique needs and provides the child with educational benefit as defined by IDEA case law. Fewer procedural safeguards are available for disabled children and their parents under Section 504 than under IDEA. 

The Individuals with Disabilities Education (IDEA) begins at 20 United States Code Section 1400. The special ed regulations are located at 34 Code of Federal Regulations, 300. (Cited respectively as 20 USC 1400 and 34 CFR 300.1) The full text of the complete IDEA statute and all regs are in our law book, Wrightslaw: Special Education Law.

"Section 504" is from The Rehabilitation Act of 1973, beginning at 29 United States Code, Chapter 16. See Chapter xxx in Wrightslaw: Special Education Law, 2nd Edition. 

Specifically 29 USC Section 794 explains that a "qualified individual with a disability" shall not be discriminated against for reasons related to the disability. The individual shall be provided with reasonable accomodations and access, such as ramps for individuals in wheelchairs. An accomodation for a dysgraphic individual in an educational setting could permit the child to type answers to an exam since they have not acquired pen to paper, written language skills. The critical education related sections of Section 504 and the 504 regs are in our law book.

Litigation Under 504

I cannot speak for the position of others on 504 v. IDEA or their trial experience litigating 504 and spec ed/IDEA cases. I have litigated both since 1978.

I am aware that 504 litigation is preferred by some attorneys because, in theory, if there is a violation of Section 504, they may be able to sue for $$$$ damages and may not have to pursue a special education due process hearing first. (In most jurisdictions with a 504 claim on behalf of a spec ed child, you must still exhaust administrative remedies and pursue due process.)

I am also aware that many parents like 504 plans because it means that their child can receive accommodations, sometimes even modifications, and be able to attend regular public school classes and not have to go to that other school across town, or go into the dreaded Ms. X's spec ed class, or be singled out for the dummies program or whatever.

Addressing the parent issue first; the parent wants a 504 plan so that the child will not have to go into special ed, change classes or schools. The problem is that many of us think that special ed is a place, a location where services are provided. This is not correct. The statute clearly states that  "special education can become a service for such children rather than a place where they are sent." (20 USC 1400(c)(5)(C) - Wrightslaw: Special Education Law, page xxx) "The term 'special education' means specially designed instruction . . . to meet the unique needs of a child with a disability . . ."  (20 USC 1401(25) - Wrightslaw: Special Education Law, page 29) Repeating, it is not a place, it is specially designed instruction. For so many of our children, it could and should mean individualized, one-on-one, remedial reading instruction, one period a day from a qualified instructor, with the child able to attend regular ed classes, all the while learning how to read.

The Section 504 Plan as a ÒConsolation PrizeÓ

Too often the typical 504 plan is for the ADD/ADHD dysgraphic acting out adolescent. When the school district finds that the child is not eligible for an IEP under IDEA (because they did not administer comprehensive written language/dysgraphia testing) they tell the parent that the child is better off being found ineligible, because now they do not have to change over to xyz school, or the 123 dummy class in the trailer out back. Instead the school tells Mom, "We have something much better, a 504 plan. With that plan, your son can stay in the same classes with his friends, and we will make accomodations so that he does not have to write out all of his exam papers. We will be sure all of his teachers understand this too, and their new requirements in working with your son." 

The parent breathes a sigh of relief. Perry Zirkel, LeHigh University Spec Ed professor and PA Appeals HO, calls this the "consolation prize" for the child who should have been found eligible for spec ed services and strongly discourages schools from continuing to use Section 504 Plans as consolation prizes. 

Why isn't the school teaching the child pen-to-paper written language skills, why isn't that the issue of his IEP? What would he even need to be transferred to another class or school? Same same for another disability, whether it is a reading disability, speech language, etc. So often it is better for our kids to stay in regular ed, but have an intense hour or so a day spec ed remedial skill building in the area of the primary deficit. That will not happen under a 504 plan.

So many of the private spec ed schools do just that, provide intense one or two periods a day, one on one, or two, or max of three, remediating the educational weakness so that it is no longer a deficit in regular ed classes.

In contrast, usually after the third grade, the public schools stop trying to teach the basic reading, writing, spelling and arithmetic skills, and instead focus on modifications and accomodations. Rather than being taught how to write using a pen and paper, children are permitted to dictate all answers.  Rather than be taught times tables and basic math concepts, children are provided with a calculator. Rather than being taught how to read, children are provided with talking books and have quizzes and exams read aloud to them. This is garbage!

Do not get me wrong, children must learn how to use the computer, must learn how to touch type at high speed, must learn how to use calculators, excel, word, and on and on, but they must be taught the basic skills. As the child is being taught how to read, it is proper to read a history exam question to the child if the purpose is to measure the child's mastery of history. 

Bottom line - 

If a child has a disability and that disability adversely affects educational performance, then that child should receive special education services under an IEP. An IEP provides far more services and benefits than a 504 plan. Under an IEP a child may receive accomomdations in "general State and district-wide assessment programs" (20 USC Section 1412(a)(17) - Wrightslaw: Special Education Law, page 48). The IEP may also include "a statement of any individual modifications in the administration of State or districtwide assessments . . ." (20 USC Section 1414(d)(1)(A)(v)(I) - Wrightslaw: Special Education Law, page 62)

The spec ed regs expand on this in 34 CFR Section 300.138, Participation in Assessments (Wrightslaw at page 151) using both accomodations and assessments in the same sentence. The IEP regs specifically explain that the IEP must be made accessible to each teacher and other service provider so that they are aware of their responsibilities and "The specific accomodations, modifications, and supports that must be provided for the child in accordance with the IEP."  (34 CFR 300.342(b)(3)(ii) - Wrightslaw: Special Education Law. page 167) 

A child under IDEA with an IEP is entitled to all of the accomodations and modifications that a child is entitled to with a 504 plan. But, the IDEA spec ed child, has far more procedural rights and is entitled to far more in the quality of services.

Section 504 and Damages 

So often I see parents hang their hat and the whole case on a violation of Section 504. (You violated my son's rights and I'm going to sue you for every penny I can get!) In the end they have little to show for it, except a very polarized relationship with the school district and the child becoming even more damaged than before the conflict escalated.

I know a few attorneys prefer to turn a spec ed dispute into a 504 case. I do not agree. 

In litigation under IDEA, the general rule is that you are not entitled to $$$ damages, but the parents may recover dollars spent on tuition and other expenses incurred. (One court recently departed from that rule and the case is on appeal.) 

In my opinion, the multitude of spec ed cases that have opened doors for a particular child, and, by legal precedence, opened doors for tens of thousands of other children with disabilities are IDEA cases and not 504 cases. The landmark IDEA cases at the US Sup Ct level, Burlington, Honig, Carter, Cedar Rapids (all in Wrightslaw: Special Education Law) have changed the landscape to the better for our children.

Section 504 cases are few and far between. The cost to litigate a Section 504 case may climb to hundreds of thousands of dollars.

There are some excellent 504 dollar damage cases, beginning with the Doe v. Withers in xxxx at
http://wrightslaw.com/advoc/ltrs/Why_doe_withers.html

WB v. Matula at 
http://www.wrightslaw.com/law/caselaw/3rd.wb.matula.pdf 

and Whitehead v. Hillsboro County at 
http://wrightslaw.com/advoc/articles/news_Whitehead_980403.htm

Parent/child attys COPAA members Bill Byrne, Rebecca Spar, and Laura Whiteside, respectively handled those three cases.

More recently we have had the Witte case at
http://wrightslaw.com/advoc/articles/Pete_KeyIssues_Witte_991216.html

and Pamela SettlegoodeÕs case at 
http://wrightslaw.com/law/caselaw/04/9th.settlegoode.portland.htm cases. 

These cases are great reading, they make a big splash, but I can assure you that the parents lost many many nights of sleep and the cases put them on the edge of bankruptcy and at least one went over the edge. Large dollar damage cases are rare, almost exceptions to the rule cases. 

In each of the cases except Settlegoode, the child was a spec ed child, but through artful pleading and because of horrendous horrific facts, the attorneys were able to get the cases beyond the normal threshold of no dollar damage recovery in normal spec ed litigation.

Do you really want to have a good 504 v IDEA case as happened in Witte. In Witte, the child was forced to eat his own vomit.

Or would you prefer a more typical Carter case where Shannon was placed into Trident Academy as a 9th grader, reading on the 5th grade level, and with intense, one on one Orton-Gillingham remedial education in the acquisition of reading skills, was reading at the high school level when she graduated. Her parents recovered all attorney's fees and costs of tuition and litigation. They did not recover any additional dollars for any 504 types of damage claims.

At our wrightslaw website, we have a number of articles about 504 and other 504 cases. The two best quick links into the topic and issues are:

http://www.wrightslaw.com/info/sec504.index.htm

http://www.wrightslaw.com/info/sec504.summ.rights.htm

In closing, Section 504 is a civil rights law. Section 504 prohibits discrimination against individuals with disabilities. Section 504 ensures that the child with a disability has equal access to an education. The child may receive accommodations and modifications. 

Unlike IDEA, Section 504 does not require the school to provide an individualized educational program (IEP) that is designed to meet the child's unique needs and provides the child with educational benefit as defined by IDEA case law. Fewer procedural safeguards are available for disabled children and their parents under Section 504 than under IDEA. 

Bottom line - Anything you can have under 504, you can have under IDEA, plus much more. Why accept a consolation prize when, in the end, it will usually turn out to be junk.

Link to PatÕs stuff about Section 504