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Last Updated: 10/31/2017
 

 Ask the Attorney with John Brower, J.D.

 

Question:  My child has been diagnosed with depression and is receiving medication and counseling. The school evaluated her and found her ineligible for special education under IDEA as they claimed that her impairment did not adversely affect her education. They never considered §504 eligibility and now at various web sites I see that she may be eligible for services and accommodations under that law. When I told the school this, they said "oh we have many students who are depressed and take medications and we do not do anything special for them". What should I do?

 
Answer:  First, after consultation with the professionals treating your child you need to decide what level of accommodations and/or services would appropriately address your child’s medical condition.  That involves developing a good understanding as to how your child’s depression (or other impairment) affects her “education” on a day-to-day basis.  While many schools would like to rely solely on grades to ascertain the affect a medical condition has on a child’s education, there are numerous cases that support the position that to determine the affect a medical condition has on a child’s education takes more than a review of grades.  In fact, there is data that demonstrates that grades may not accurately reflect what a student has learned or retained. 

 

Evaluation – It is my opinion that to properly address IF a medical condition qualifies a student to receive a free and appropriate education (a FAPE) under §504 or under IDEA requires a comprehensive review of all aspects of “education”.  That would include grades, the effort put into obtaining grades, socialization skills, behavior controls, etc.  Only then can a determination be made as to the adverse impact a child’s medical conditions has on their education and only then can it be determined if the condition meets the requirements for eligibility contained in §504 and IDEA.  Once all the date is gathered, a parent can make a written “referral” for a §504 eligibility evaluation, and if denied, can take the denial before an impartial hearing officer.  If it is determined that the impact of the disability is minor, the school is probably correct in stating that the student is not eligible under IDEA or §504 for accommodations or special education type services.  At the same time, if the parent disagrees with a denial of eligibility under §504 or IDEA they have the right (and the school should have informed them of that right on the initial referral) to take their dispute over eligibility before an impartial hearing officer. 

 

IDEA v §504 Eligibility - One of the important differences between IDEA (a funding law) and §504 (a non-funded civil rights law) is that IDEA has very specific eligibility categories while §504 does not.  Therefore a child diagnosed with long term depression could:  (a) not qualify under either law, (b) qualify only under §504, or (c) could qualify under IDEA’s Emotionally Disturbed (ED) category (in which case the §504 rights automatically attach). 

If the student qualifies under either IDEA or §504, the school must provide them with a free and appropriate public education – a FAPE although the standards differ somewhat between §504 and IDEA and private vs. public schools.  Under §504 a school that is a recipient of federal funds needs to provide education services (regular and special education) and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met. 

Student’s with Depression – as noted above students with depression could qualify under IDEA’s ED category IF they meet the following eligibility criteria (with my emphasis as to the issues that are generally subject to dispute):

IDEA Eligibility - 34 CFR 300.7 - Emotional Disturbance is defined as follows:

The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance

 

 

(A)     An inability to learn that cannot be explained by intellectual, sensory, or health factors. 

(B)     An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C)     Inappropriate types of behavior or feelings under normal circumstances.

(D)    A general pervasive mood of unhappiness or depression.

(E)     A tendency to develop physical symptoms or fears associated with personal or school problems.

(F)     The term includes schizophrenia.  The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance. 

Therefore, if a student exhibits long term depression of a marked degree that adversely affects educational performance, then the public school must provide them with a FAPE by creating an Individualized Educational Plan (IEP) that includes accommodations as well as direct and related special education services.

 

§504 Eligibility - A student with the medical condition of depression (or any other medical condition) may not meet the requirements of one of IDEA’s specific categories, yet they may still qualify as a handicapped person under §504 of the Rehabilitation Act of 1973 as the eligibility requirements are different than under IDEA.  First, there are no specific eligibility categories.  All that the law requires is stated at 29 U.S.C. 706(8) where it states a person is considered a handicapped person IF the person has a physical or mental impairment which substantially limits one or more of such person’s major life activities, or has a record of such impairments, or is regarded as having such an impairment.  (Emphasis added).  Life activities include such tasks as walking, breathing and learning. 

 

Therefore, in the case of a depressed student, the question becomes if the impairment “substantially limits” the students learning.  Again, the recognized method to answer that question is for a group of school persons who know and understand the student to meet with the parents and make a determination as to whether or not the student’s impairment “substantially limits” the life activity of learning.  As this is a subjective decision, if the parent disputes the finding they can take their dispute before an impartial hearing officer.

 

If the student is found eligible under §504, a plan needs to be developed so that the student may be provided a FAPE.  Using IDEA’s IEP format is one way of documenting the child’s plan and meeting §504’s procedural safeguards.  At the same time it has been my experience as §504 is not a funding source, many school are not willing to include special education type services in their §504 plans. 

 

In summary, depending on how the clinical diagnosis of depression manifests itself in the school setting, a student may not qualify under either IDEA or §504, or they may qualify just under §504, or under IDEA (which includes the §504 protections)

 
John F. Brower, JD
Education Law Center, PLLC
www.edlawcenter.com

 

Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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