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Posted on Sep 24, 2012 in Advocacy |

How Does the IEP Under IDEA 2004 Compare to a Section 504 PLAN?

By Sid Kraizman, an attorney and former special education hearing officer

DEA 2004 Under the Individuals with Disabilities Education Act (IDEA) 2004, students with disabilities are entitled to receive special education and related services that they need to receive a Free Appropriate Public Education (FAPE). The individualized educational plan (IEP) is developed at the IEP Team meeting where the parent participates as an equal member.

In Michigan, school districts must comply not only with the federal regulations under IDEA 2004, but also with the Michigan Special Education Rules. Together, these rules and regulations explicitly define types of programs and services for students with disabilities and provide explicit and detailed procedural safeguards designed to benefit the students.

Programs and services. For example, under Michigan Special Education Rule R340.1742 Programs for Students with Hearing Impairment shall have a teacher of the deaf and hearing impaired and an enrollment of not more than seven students; there is a provision for group amplification devices.

Under the IDEA 2004 regulations the school must ensure that the cochlear implant, hearing aid, or FM unit worn by the child is working properly. Under the IDEA 2004 regulations, students with hearing loss are entitled to receive audiological and speech and language pathology services they need and the school district must provide the parents with counseling and training to help parents acquire the necessary skills to allow them to support implementation of their child’s IEP.

For students with disabilities who are mainstreamed into their neighborhood schools, there are explicit provisions under the Michigan Special Education Rules for resource programs where the resource room teacher may provide direct instruction to up to 10 students at any one time and also provide support to the student in the general education classroom. This is often done by team teaching with the general education teacher. Importantly, there is a provision for teacher consultants for the hearing impaired.

Eligibility. In order to be eligible under IDEA 2004, the IEP Team must determine a child has an impairment, such as a hearing impairment, that requires special education or related services.

Special Education and Related Services. Under Michigan Special Education Rule 340.1701c, “special education means specially designed instruction, at no cost to the parents, to meet the unique educational needs of the student with a disability and to develop the student’s maximum potential. Special education includes instructional services… and related services.”

Related services include audiology and speech and language pathology and many other services listed in the IDEA 2004 federal regulations at 34 CFR sec. 300.34.

A student with a hearing impairment who just needs an assistive listening device and audiological services would be entitled to receive those services under IDEA 2004 and would also benefit from the procedural safeguards.

Under IDEA 2004 there are explicit and detailed procedural safeguards to protect the rights of the students with disabilities and their parents and to benefit the children. The procedural safeguards under IDEA 2004 include specific provisions for independent educational evaluations at public expense, obtaining educational records, notice, participants at the IEP Team meeting, mediation, and Due Process Hearings.

Section 504. Section 504 is a part of a broad federal civil rights law, the Rehabilitation Act of 1973. To be eligible for protections under section 504 of the Rehabilitation Act of 1973, a student must have a physical or mental impairment that substantially limits one or more major life activities such as “walking, seeing, hearing, speaking, breathing, learning, and working.” 34 CFR§104.3(j).

Picture a student that utilizes a wheelchair and is fully independent, a good student on the honor roll, and who only needs access to the school by a ramp and a desk to sit at that is at a height that would accommodate his wheelchair. That student could be appropriately served under a section 504 plan.

Similarly, a student with a mild to moderate hearing impairment who chooses not to use a hearing aid or an assistive listening device and does need any special education or related services would not qualify for special education under IDEA 2004. But, that student may need preferential seating to better hear the speaker in the school auditorium or other settings, and it would then be appropriate to utilize a Section 504 plan for that student.

Section 504 protections in the public schools are in the federal regulations at 34CFR 104.31-104.39, and they are very, very short compared to the IDEA 2004 regulations and the Michigan Special Education Rules. Under section 504 there is a requirement for an evaluation but the parents do not have a right to an independent educational evaluation if they disagree with the evaluation. Under Section 504 there is lacking a set of explicit procedural safeguards designed to protect the child and the rights of the child and the parents.

Conclusion: If a student with a hearing impairment qualifies for special education and related services under the IDEA 2004, then that is what he or she should receive, and the parent should insist on it and ask for an IEP for the child. But, some students with mild to moderate hearing losses may not need special education and related services, and a Section 504 Plan may be appropriate to meet their needs.

Atty Sid Kraizman can be reached at sidkraizman@sbcglobal.net