Section 504 And Special Education
by
Herbert D. Hinkle, Esq. and Ira Fingles, Esq.
Hinkle,
Fingles & Prior, Attorneys at Law
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
When
most people use the term "special education," they
are referring to the rights created by a federal statute
known as the Individuals with Disabilities Education
Act or "IDEA." In addition to the IDEA, however, there
is another federal statute that provides important
rights for students with disabilities: Section 504
of the Rehabilitation Act of 1973 or just "Section
504." Section 504 prohibits all recipients of federal
funding from discriminating on the basis of a person's
disability. All public schools in both Pennsylvania
and New Jersey receive some federal funding and therefore
are covered by the law's requirements. In Pennsylvania,
Section 504 services are covered by Chapter 15 of
Title 22 of the Pennsylvania Code, and are therefore
sometimes referred to as "Chapter 15" Services.
One of the main differences between the IDEA and Section
504 is who is covered. Under the IDEA, a student must
fit into one of the disability categories listed in
the statute (such as Specific Learning Disability,
Hearing Impaired, etc.). Section 504 applies to any
student who has a disability, whether or not it is
included in the IDEA's list of classifications. A
disability is defined as "a physical or mental impairment
which substantially limits one or more major life
activities." Major life activities are such things
as caring for oneself, walking, seeing, hearing, speaking,
breathing, or learning. Because Section 504's eligibility
criteria are broader than those of the IDEA, more
children will be covered by Section 504. This is particularly
true of children who have relatively mild disabilities.
Because Section 504 covers children with less-severe
disabilities than the IDEA, many people believe that
it provides fewer rights. This is not true. Section
504 provides nearly identical protection to students
with disabilities as the IDEA. Both laws guarantee
that students with disabilities receive a free appropriate
public education ("FAPE") consisting of special education
and related services designed to meet the student's
individual needs. Both laws require that an individualized
plan be developed specifying what accommodations and
specialized services the child will be provided. Under
the IDEA, this is the Individualized Education Program
or "IEP." Most schools call the plan developed under
Section 504 an Accommodation Plan. Both laws require
that students be placed in an educational setting
in which he or she can receive all of the supports
and services deemed to be necessary, and contrary
to what many school personnel believe, Section 504,
like the IDEA, requires that a student be placed in
a private or residential school when less restrictive
placement options are insufficient to meet the student's
needs.
It often takes a great deal of effort to help school
personnel understand just how extensive the requirements
of Section 504 really are. Because most services available
under Section 504 are also available under the IDEA,
it may be more efficient to simply focus on the student's
rights under the IDEA. However, for students who are
not eligible for IDEA services, knowing and using
Section 504 may be critical.
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Hinkle,
Fingles, & Prior maintains a multi-state law practice
with offices in Lawrenceville, Marlton, and Florham
Park, New Jersey, and Yardley, and Plymouth Meeting,
Pennsylvania. They lecture and write frequently on
topics of law, aging, disability and estate planning
and are available
to speak to groups in New Jersey
and Pennsylvania at no charge.
Comments
and suggestions for future articles should be mailed
to: Hinkle, Fingles & Prior, Attorneys at Law,
2651 Main Street, Suite A, Lawrenceville, New Jersey
08648-1012.
Copyright
2007 Herbert D. Hinkle. All rights reserved.
