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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.

Question: The local school district recently certified my children as learning disabled. In my opinion, my children do not require direct special education instruction or support services. What they do require is just a few basic accommodations to be successful in a regular education setting. That would include such accommodations as extended time on testing, extended due dates on written assignments, etc. The school district has refused to create a §504 Plan, and will not even meet with me to discuss §504. They tell me that as my children are eligible for special education that all services and accommodations must come to them via their IEP. My question is “are my children entitled to separate §504 plans?”
 
 

Answer:  I have broken down this question into two parts.  One is the disagreement with the school finding a child eligible for IDEA based special education and the other is the need for §504 type accommodations, either under an IDEA eligible student’s IEP or a separate document for students that are only §504 eligible.

 

Eligibility - In Michigan for a child to be found eligible for special education as Learning Disabled the IEP Team must find that:  (1) is a “disabled student” as defined by R 340.1702 of the Michigan Rules which states:

 

“Student with a disability” means a person who is determined by an individualized education program team or a hearing officer to have 1 or more of the impairments specified in this part that necessitates special education or related services, or both, ....(Emphasis added)

 

Next, the Team needs to determine which of the eligibility categories best describes the student’s primary disability.  Here, the Team determined that the most appropriate category was Specific Learning Disability.  To make that determination an IEP Team must have agree that the evaluations conducted by the school staff and the other information available show that the child meets the legal definition for a Learning Disability (which likely will be subject to major revision under the changes to IDEA being considered by Congress) which is found at R 340.1713 of the Rules, and states:

 

(1) “Specific learning disability” means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. . . . .

 

Again, if a parent does not agree with the IEP Team’s determination of eligibility they should not sign the IEP in agreement.  A school may elect to ask an IDEA due process hearing officer to resolve the dispute.  Sometimes this is done as the school staff strongly feels that to not provide the student with special education services is not in their best interests. 

On the other hand, the motivation to find a student eligible may be the extra funds that the state provides a school district to educate the special education students.  As §504 is an anti-discrimination civil rights law, it does not provide any extra funds to the school, but it does surely create a fair amount of legal obligations on a school district to be sure that the §504 student is on an equal footing with their non-impaired peers.    

 

Accommodations – IDEA students with an IEP – As learning is a life activity, all IDEA eligible students also meet §504’s eligibility requirements, which are:

 

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.

 

Therefore, the approved practice most IEP Teams follow is to include any needed accommodations or modification in the student’s IEP document.  The section they are included in is frequently titled Supplementary Aids, Services, and Personnel Supports.  It is a listing of all the supplementary aids, services and supports the Team feel are needed, whether that be through general education or special education.  That includes such items as calculators, tapes, tape recorders, notes, and other technology devices and services.  As “accommodations” for school wide and state assessments have their own section in the IEP, many schools also include under this hearing the accommodations a student needs for regular tests, assignments, etc.  Some schools attach a listing of accommodations and modifications to the IEP as a separate document, similar to what is done for §504 students.  There is an argument that can be made that by using a separate attachment to the IEP the accommodations can be modified without requiring the entire IEP Team to meet. 

 

Accommodations - §504 Eligible Students  - In my opinion, if an IEP Team finds a student “not eligible” for special education services under IDEA; either because the evaluations and other data does not support eligibility, or if the parent refuses eligibility, the appropriate next step is to consider eligibility under the §504 definition (see above).  That is done by a group of persons knowledgeable about the student.  As many school districts do this automatically on a finding of no IDEA eligibility, the group may be the same persons on the IEP Team or another set of persons.  If the group determines that a student should be regarded as having an impairment under §504 of the Rehabilitation Act of 1973 (34 CFR §104) then they need to development a plan detailing the needed accommodation and accommodations.  The §504 Plan, while it can contain services, frequently only includes classroom/building accommodations and program modifications such as extended time, etc.

 

Hope you find these generalized comments helpful. 

 

John Brower, JD
Education Law Center, PLLC
www.michedlawcenter.com

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

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