Dec. 1, 2021 Ask an Attorney- IDEA & 504

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Franczek P.C.: Dana Fattore Crumley & Kendra Yoch

At what point do you determine that a student with a 504 plan should be evaluated for potential IDEA eligibility under OHI?  

Let’s start with the legal definitions. Under Section 504, eligibility is based on a mental or physical impairment that substantially limits one or more major life activities. The potential mental and physical impairments are not listed or limited, and the impacted life activity does not have to be learning; students may be eligible if their breathing, eating, walking, or other major life activity is substantially limited. Under the IDEA, eligibility is based on one of 13 specified disabilities and a determination that, because of that disability, the student needs special education and related services. 

Special education means specially designed instruction, at no cost to the parents, intended to meet the unique needs of a child with a disability. And specially designed instruction means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to address the child’s unique needs resulting from the disability and ensuring the child’s access to the general curriculum. 

Practically, the question of what qualifies as specially designed instruction can be tricky. General education now often includes differentiated instruction, tiered academic and behavioral interventions, social-emotional learning, and even individualized learning choices and supports. The line between special education and general education can thus become blurry. On this point though, OSEP has advised that while social skills training and modified teaching methodologies may be best practices and part of a district’s regular education program, that does not preclude those services from meeting the definition of special education or related services (even if they are also provided to students without disabilities).

Under Section 504, an appropriate education includes the provision of regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities. So nothing in Section 504 prohibits the inclusion of specialized instruction and related services in a 504 plan. However, if a student needs specialized instruction and related services, they may also meet the eligibility criteria under IDEA. So if the 504 team is considering adding content modifications, special education services, or removal from the regular classroom to the 504 plan, that is an indication to pause and consider an evaluation for IDEA eligibility. 

When considering whether a student with a disability under Section 504 should be evaluated for IDEA eligibility, key questions include:

• Does the student’s mental or physical impairment also fall under one of the 13 IDEA disabilities, like other health impairment, specific learning disability, emotional disturbance, or traumatic brain injury? 

• Does the student need the content, methodology, or delivery of instruction adapted to address their needs resulting from their disability?

Given current information, if the answers are yes or unclear, collecting more information through the evaluation process can give the team the data they need to make a solid eligibility determination. 

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