Legal Considerations for Schools When Deciding Between an IEP or a 504

By Tracey D. Waldmann

Reprinted with permission from the March 29, 2018 issue of The Legal Intelligencer.© 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
One confusing area of special education law is whether a student with a disability needs an Individualized Education Program (IEP) under the Individuals with Disabilities Education Act (IDEA), or a 504 Plan under Section 504 of the Rehabilitation Act of 1973. Both are federal laws that protect students with disabilities. The laws, however, address different levels and types of need and providing the wrong plan can result in a violation of federal law, as well as certain parallel or implementing state laws, and can legally expose a public school district or charter school.
In general terms, an IEP has specific goals for the student that are progress monitored over the year, as well as specially designed instruction (such as specialized writing or math instruction, or social skills instruction), and related services (such as speech or occupational therapy), if appropriate. A 504 Plan mostly provides modifications or accommodations (such as extended time for testing, access to audio books, or special seating) while the student is in school. A school can be found liable, however, if for example, a student has a 504 Plan but his needs require that he have an IEP. The school may be liable under IDEA for failure to provide an IEP, even if it complied with all 504 requirements. This is a common pitfall that schools fall into: not knowing when to move from 504 to an IEP, or from an IEP to a 504.
Although each case is fact-specific and based on the current needs of the child, choosing the right program can help avoid liability. Below are the top ten things to consider when deciding if a student needs a 504 Plan or an IEP.
  1. First, has the student been evaluated by the school psychologist? If a parent or teacher has raised a concern about a child’s needs or performance in school, the first step is to have the child evaluated. A student can be evaluated according to 504 regulations or IDEA. Often, however, the evaluation is conducted pursuant to IDEA regulations which are more comprehensive than 504 regulations. Generally, if the evaluation satisfies IDEA, then it also satisfies 504 requirements. The evaluation is necessary and a very important tool.   
  2. Does the evaluation report identify the student as having a disability (as listed in 34 CFR §300.8) and in need of specially designed instruction? If the answer to both is yes, then the school convenes an IEP team, including parent, to implement an IEP.
  3. Does the evaluation identify the student as having a disability, but not in need of specially designed instruction? Then an IEP is not warranted, but the school should inquire whether he needs some specific accommodations or modifications during the school day. If so, then a child study or 504 team, including parent, is convened to implement a 504 Plan. 
  4. Has the school obtained parent input? The parent is a participant in either a 504 or IEP meeting, and “parental participation” is requirement under both. Failure to allow the parent to meaningfully participate could result in a violation even if 504 Plan or IEP otherwise provides a free appropriate public education or “FAPE” as required under both IDEA and 504.
  5. Does the child have a medical condition? Often, a student with a medical condition has a 504 Plan to provide accommodations to address his medical needs. However, this is not always the case, and just a medical note from a doctor does not establish a need for a 504 Plan. The school should inquire, or conduct an evaluation, on whether a 504 Plan is needed. 
  6. Is the student failing any classes? If a student has a 504 Plan, and the accommodations are working, but he recently started receiving failing grades, it may be necessary for the school to collect data to determine whether his needs have changed and possibly may qualify for another disability such as a specific learning disability. The school should consider a re-evaluation under IDEA to see if he needs an IEP, or changes to the 504 Plan.
  7. If a child has a 504 Plan, are the accommodations still working?  If the student has a 504 Plan but serious concerns have been raised about behavior or attendance, the school should consider an evaluation under IDEA to see if the student’s needs have changed. Alternatively, the 504 team should meet to review the accommodations to see if they need to be revised.
  8. Has the 504-team prepared for the child’s annual review? A good rule of thumb is when the student’s annual review is due, the 504 team should not only consider whether to revise the modifications, but also whether a 504 Plan is still appropriate. Even if a student’s needs have not changed dramatically and the accommodations are working, the student will get older and advance to a higher grade with possible increased demands and different environment. Failure to take these types of changes into account can make a 504 that was legally defensible into one that is no longer appropriate and in violation of Section 504.
  9. If the student has an IEP, has she met all her goals?  If a student has met all the goals in her IEP, has been re-evaluated, and the re-evaluation concludes that the student no longer needs specially designed instruction, then the IEP team should inquire whether a 504 Plan is appropriate. The team should review the modifications / accommodations that were in the student’s former IEP and decide if they need to continue as part of a 504 Plan.
  10. Should the student be exited out of special education? Often, parents are reluctant to end the special services that their child receives, but a student should learn skills to be as independent as possible. Continuing services or accommodations beyond when they are needed can impede a student’s learning and can adversely affect the student’s confidence. Further, a school is legally obligated to follow the “least restrictive environment” requirement and make sure that a disabled student is educated with nondisabled children to the maximum extent appropriate. Also, many schools offer accommodations such as tutoring, counseling, or extended time for testing to the entire student population so that a separate plan is not needed.

In most cases, it is clear when a student needs an IEP or a 504, but sometimes, the line is blurred and the above considerations are a good starting point when deciding whether a new plan is needed and to side-step liability under IDEA or 504 for choosing the wrong plan.

About the Author: Tracey D. Waldmann joined Raffaele Puppio as Of Counsel in 2015 with a focus in education law and government services.