Learn Your Special Education Laws, Special Education Rights, and Share IEP Goal Ideas

Jan 31
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by Doug Goldberg

The term Free Appropriate Public Education is thrown around a lot in Public Education. There are two separate laws having to do with disabilities that specifically define this term. It can be found in the Section 504 of the Rehabilitation Act and in the Individuals with Disabilities Education Act (IDEA). So what exactly is the difference between the two definitions? Let’s start by looking at how each law defines FAPE.

Section 504 of the Rehabilitation Act

According to the Frequently Asked Questions About Section 504 and the Education of Children with Disabilities on the United Stated Department of Education website:

The Section 504 regulations require a school district to provide a "free appropriate public education" (FAPE) to each qualified student with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student's individual educational needs as adequately as the needs of nondisabled students are met.

According to the Free Appropriate Public Education for Students With Disabilities: Requirements Under Section 504 of The Rehabilitation Act of 1973 document on the United Stated Department of Education website:

All qualified persons with disabilities within the jurisdiction of a school district are entitled to a free appropriate public education. The ED Section 504 regulation defines a person with a disability as “any person who: (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”

For elementary and secondary education programs, a qualified person with a disability is a person with a disability who is:

    • of an age during which it is mandatory under state law to provide such services to persons with disabilities;
    • of an age during which persons without disabilities are provided such services; or
    • entitled to receive a free appropriate public education under the Individuals with Disabilities Education Act (IDEA).

In general, all school-age children who are individuals with disabilities as defined by Section 504 and IDEA are entitled to FAPE.

The Individuals with Disabilities Education Act (IDEA)

The term Free Appropriate Public Education means special education and related services that–

    1. have been provided at public expense, under public supervision and direction, and without charge;
    2. meet the standards of the State educational agency;
    3. include an appropriate preschool, elementary school, or secondary school education in the State involved; and
    4. are provided in conformity with the individualized education program required under Section 1414(d) of this title.

The Supreme Court also weighed on the meaning of FAPE under IDEA and created the Rowley Standard:

    • The child must receive a basic floor of opportunity
    • Individually designed to provide some educational benefit
    • Passing grades in classes and advancement to a higher grade is one way to show progress

Differences between 504 and IDEA

    • Section 504 has a wider definition of FAPE. IDEA covers only special education and related services while Section 504 covers both regular or special education and related services.
    • Section 504 is a Civil Rights antidiscrimination law which requires disabled students to have their needs met as appropriately as non-disabled peers by comparing both groups. IDEA is a Special Education law which requires you to focus on the unique needs of the child and design an Individualized Education Program (IEP) around these individual needs.
    • IDEA requires the implementation of an IEP with specific requirements. Section 504 only requires a written plan.
    • Section 504 does not have a requirement for who must attend and participate in a 504 meeting. IDEA has a requirement of who must attend and participate in an IEP meeting.
    • IDEA has VERY specific procedural safeguards that include expansive rights of the parents including the right to ask for an Independent Educational Evaluation (IEE), be provided Prior Written Notice (PWN), and if you disagree with the Schools offer your child’s current placement and services will be subject to a Stay Put. Section 504 does not include the concept of IEEs, PWN or Stay Put.  Section 504 requires notice to the parent or guardian with respect to identification, evaluation, and/or placement but written notice is not required.  Although written notice is not required many School Districts consider it a best practice to provide written notice anyway.
    • IDEA has a requirement for 10 day notice before placement changes can be made. There is no such requirement in Section 504.
    • Both IDEA and Section 504 give the Parents the right for an impartial hearing but on very different terms. Under Section 504 the School hires and sets up the impartial hearing. Under IDEA the impartial hearing is normally set-up through the State’s Department of Education or other State Agency such as the Office of Administrative Hearings.
    • Section 504 is enforced by the Office of Civil Rights. IDEA is enforced by the Office of Special Education.

As you can see there are many differences between Section 504 and IDEA not only in regards to the definition of FAPE but the rights you have as a parent to enforce these laws. Make sure you understand these differences prior to agreeing to a 504 Plan versus an IEP.



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9 Responses to “FAPE vs FAPE: IDEA & Section 504”

  1. I believe there is an error in this article. Prior written notice IS required when determining eligibility and operating under a 504 plan. 

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    • Hi Cynthia, Section 504 does not include a clear “Prior Written Notice” requirement. Section 504 requires notice to the parent or guardian with respect to identification, evaluation, and/or placement. But written notice is not required. Many SD’s give written notice but it’s not required.

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      • I believe that what you are saying is that prior notice isn’t required to be in written format when operating under a 504. I still believe the article to be incorrect as prior written notice is still required when eligibility determination is made as at that point the district must comply with both IDEA and 504 as the child/parent still has the right to challenge the determination as inappropriate. 

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        • Actually, Not everyone who has a 504 plan falls under the protection of IDEA BUT eveyone who has an IEP also falls under the protection of 504. And while the parents have the right to file for an impartial hearing under 504 they don’t have the same procedural safeguards as established under IDEA. That is why it is so important for Parents to understand the differences between the two regulations.

          I doubled checked my answer again by reviewing the law and even double checked with a Special Education attorney to confirm since I am advocate not an attorney. According to the attorney, Section 504 does not include a clearly established “Prior Written Notice” requirement

          If you have the actual language you are referring to please provide the citation.


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  2. Doug,

    I had a question for you about an IEE, a private assessment that was done, and paid for by the district. Do I have any rights when it comes to something like that as the Parent of the child who had this IEE? These doctors that did this IEE are saying that whatever is written is it, basically they’ll be sending their recommendations, whatever those might be to the district at the SAME time as I see them. Now what if I disagree, which I am sure I will based on my conversation with these doctors, what then? Is there anything I can do about this or not? I had an IEE done before, prior to this, which I paid for. This one I did not as I said. I have not agreed with this group of doctors from the start, so obviously I am very concerned about this.

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    • Hi Judi, results from an IEE or private assessment never have to be followed by an IEP Team they only need to be considered. That being said if the results of the IEE match the results of the SD assessment its going to be very difficult for you to prove that they shouldn’t be followed. Do you have any experts that have performed assessments which you paid for that show different results?

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      • Hi Doug.
        Thank for the info.!
        Just an IEE that was done back in ’09, which we paid for, which the district refused to accept.
        They said that they’d pay this IEE, which they did.
        However these doctors will not allow me to view it before they send it off to the district. That means that we can’t even discuss/consider possibly services that my Daughter might need from her school district.
        I had NO idea that this was how this IEE would work or I would have never done this, never!
        Now what?
        What if we do not like what these doctors have written, what then? It has taken me the better part of 7 years, yese I said 7 years to just get my Daughter on an IEP in this school district.
        I obviously worry that this IEE could mess that all up.
        Could they say that I agreed to this IEE, so now I also have to agree with what these doctors are saying in it?

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  3. I am in need of some help on the following subject matter. My son has had a IEP since he was admitted to the school system here via CHILD FIND. A psychological assessment was done on him in 2005, nothing since then. Is this a violation of his IEP? He is now in 7th grade and we have another IEP meeting coming in December. Also the last Educational Assessment was done in 2009. Where can I get information on how often all these assessments should be done? We only learned of the possible problem after a visit with a Behavioral Pediatric Doctor. We have already had problems with the school district last year from what they say was a computer glitch that caused my son to go from having 36 hours of support in the classroom per his IEP to weekly consultation in the transition from 5th grade to 6th grade. Thank you for any help that you can provide.

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