Special Education Basics: The Difference Between IEPs and 504s

Most parents of children with disabilities do not have extensive experience advocating for accommodations within their school system. In an ideal world, a school would promptly and properly identify the needs of students with disabilities and work to ensure parents understand their options. Since this ideal is not always upheld, it is important to understand the core tenets of special education law. One of the most common issues parents run into is understanding the difference between an Individualized Education Program (IEP) and a 504 Plan. Both IEPs and 504 Plans offer formal assistance and accommodations for K-12 students who are struggling in school. However, there are some key differences between the two.

An IEP is a written program that provides with specificity what, if any, free special education resources, services and supports will be put into place to meet your child’s unique needs. This includes any specialized instruction your child may engage in. The written IEP will also set specific learning goals for your child. The underlying law that applies with an IEP is the Individuals with Disabilities in Education Act (IDEA). This is a federal law focused on special education for children with disabilities.

A 504 Plan is a plan established by the school to determine what free supports and accommodations the school will put into place to ensure your child can learn alongside their peers in the classroom. Unlike an IEP, there is no standard 504 Plan and a 504 Plan need not necessarily be a written document - although most schools do produce written plans. A 504 Plan does not typically set specific learning goals like an IEP does. The underlying law that applies with a 504 Plan is Section 504 of the Rehabilitation Act of 1973. This is a federal civil rights law that focuses on stopping discrimination against people with disabilities.

Under the IDEA, a parent or guardian must give written consent before a child is evaluated for IEP eligibility and give written consent before the school can begin implementing the services described in the IEP. Under Section 504, a parent must consent to an evaluation but it does not have to be in writing. An IEP must be reviewed at least once a year, and a child on an IEP must be re-evaluated every three years in order to determine if services are still needed. For a 504 Plan, the rules vary by state although most schools loosely follow the same timeline as an IEP.

So, how do you determine which of these two options would best suit your child? In order to qualify for an IEP, a student’s school performance must be adversely affected by one of thirteen qualifying disability categories under the IDEA. The child must need specialized instruction in order to progress in school. Conversely, to qualify for a 504 a child need only have any disability that interferes with the ability to learn and progress in a general education classroom setting. The disability must substantially limit one or more basic life activities for the student. Because the requirements to qualify for an IEP are stricter than those for a 504 Plan, a child who does not qualify for an IEP may still qualify for a 504 Plan.

If you think your child might need an IEP or a 504 Plan, reach out to your school administrators and request an evaluation for your child. If you have questions about your child’s IEP or 504 Plan, contact an education advocate or attorney.

Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP

www.Lawyers4Students.com

Title IX Requires Parity in Athletic Programs (k12)

Background

Title IX is a federal civil rights law that states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Therefore, if your school receives federal funding, all programs and activities operated or sponsored by the school, including its athletic program, are covered by Title IX.

Evaluating your school’s athletic program

If your school is covered by Title IX, it must provide equal opportunity based on sex. This requirement includes your school’s athletic program and extends to club, intramural, and/or interscholastic teams. Equal opportunity in K-12 athletic programs is measured in two ways which are explained in the evaluation below.

MEASURE 1: Benefits, opportunities, and treatment

The first step in evaluating your school’s athletic program is determining whether your school offers equivalent benefits, opportunities, and treatment, which apply to the following categories:

Equipment and Supplies

Does your school provide athletic gear of equivalent quality, quantity, suitability, condition, and availability for athletes on boys and girls teams?

Scheduling Games and Practice Times

Do boys’ and girls’ teams both have a reasonable opportunity to compete before an audience? For example, if all girls’ games are scheduled for Sunday mornings when all boys’ games are scheduled for Friday nights, the girls’ teams likely do not have the same opportunity to compete before an audience.

Do boys’ and girls’ teams play an adequate number of regular season games or other competitions? Further, are the number and length of practice sessions equivalent for teams in the same or similar sport?

Finally, are practice times equally convenient for both boys’ and girls’ teams? For example, always scheduling practice for the girls’ swim team at 5:00am when the boys’ swim team is always scheduled for practice at 7:00am would not likely provide equally convenient practice times.

Travel and Daily Allowance

Do boys’ and girls’ teams use equivalent modes of transportation when traveling to away games? Do they have equivalent accommodations when traveling overnight? Finally, do they receive equivalent meals or meal allowances (if offered)?

Coaching

Do boys’ and girls’ teams have equivalent coaches with equivalent qualifications, and are the coaches available for equivalent amounts of time?

Do coaches of boys’ and girls’ teams receive equivalent compensation? If not, can your school justify the difference in pay using factors that are nondiscriminatory?

Finally, do coaches of boys’ and girls’ teams have equivalent “other duties” such as teaching vs. full-time coaching?

Locker Rooms, Fields, Courts, Other Facilities

Are the boys’ and girls’ locker rooms equivalent in quality and size? Additionally, are the conditions of playing fields, courts, pools, and other athletic facilities equivalent? For example, is there equivalent maintenance, access to restrooms, availability of spectator seating, scoreboards, lighting, and other amenities?

Medical and Training Facilities and Services

Are training and conditioning facilities equivalent for boys’ and girls’ teams, and is there equal access to these facilities? Similarly, is there equivalent access to medical and training personnel/services?

Publicity

Does your school provide equivalent coverage of boys’ and girls’ teams and/or athletes on its website, social media, or other publicity? Further, are cheerleaders, pep bands, and drill teams are provided equivalently?

Finally, it is important to note that if your school receives unequal support for either boys’ or girls’ teams through booster clubs and/or parents, it is your school’s responsibility to ensure boys’ and girls’ teams remain equal despite the difference in outside financial support. If your school does not take steps to remedy the inequality, this may indicate a potential Title IX violation. Moreover, if throughout the evaluation you answered “no” to any of the questions regarding benefits, opportunities, and treatment, this may indicate a potential Title IX violation as well.

MEASURE 2: Meeting students’ athletic interests and abilities

The second step in evaluating your school’s athletic program is determining whether your school is fulfilling its duty to meet students’ athletic interests and abilities. Your school can choose one of three options to demonstrate that it fulfils that duty.

Substantial Proportionality (Option 1)

This option looks at whether the percentage of girl and boy participants on athletic teams are about the same or “substantially proportionate” to the percentage of girls and boys enrolled at the school. If this is the case, your school can likely use option one to show its athletic program provides equal opportunity under Title IX. However, if there is disproportionality, your school must show that there is not enough interest and/or ability among students to form a viable new team for the sport in question. If there are enough students to form a viable new team, then Option 1 would not be available to your school.

History and Continuing Practice (Option 2)

This option looks at whether your school can show it has a history and continuing practice of expanding its athletic program to respond to the interests and abilities of underrepresented students. Historically, girls were underrepresented in schools’ athletic programs, and schools used this option as they expanded their girls’ programs. However, when either girls or boys have been, and remain underrepresented in your school’s athletic program, if your school has a history and continuing practice of adding or expanding teams to accommodate expressed interest, your school can likely use Option 2.

Interests and Abilities of Students (Option 3)

The third and final option looks directly at interests and abilities of students. This option asks whether your school can show that it otherwise meets the athletic interests and abilities of the underrepresented sex, despite disproportionality existing within its athletic program? For example, is there is an unmet interest in a particular sport that is not offered at your school? Is there enough talent and skill among the underrepresented students to sustain a team in that sport? Finally, are there other schools in the area currently competing in the sport? If so, your school probably cannot use Option 3. However, if there is not enough interest or ability to sustain a viable team in the sport, your school can likely use Option 3 to show that it provides equal opportunity despite the apparent disproportionality.

What to do if you think your school’s athletic program violates Title IX

Students, parents and guardians, employees, or other members of the school community who believe their school may be providing unequal athletic opportunities based on sex may file a complaint through their school’s grievance procedures. Every school district covered by Title IX is required to prominently display contact information for the Title IX Coordinator, who can provide information about the school’s grievance procedures. The Title IX Coordinator is responsible for overseeing all Title IX complaints in your school or district, including for unequal athletic opportunities. You should be able to find their contact information on the school or district website as well as in student and employee handbooks and catalogs.

Additionally, anyone can file a complaint with the OCR on their own or with the help of an attorney. This includes students, parents and guardians, employees, coaches, athletic directors, community members, and others who experience or suspect discrimination in education programs or activities, including in a school’s athletic program. The OCR will then investigate the complaint and perform an evaluation similar to the one covered throughout this article. If a violation exists, the OCR will step in to remedy the issue and enforce Title IX.

Josh Sollenberger is a Student Rights Attorney at Abdnour Weiker, LLP

www.Lawyers4Students.com

Making the Most of Progress Reports for Special Education Students & Families

It’s that time of year again…the end of the grading period. As many of us know, having lived through it, students receive report cards with their grades at the end of each marking period (typically at the end of each quarter of the school year). At the same time, special education students will be receiving their individualized education plan (“IEP”) progress reports, as these reports must be distributed any time a grade card or interim is issued.  IEP progress reports measure student progress towards meeting their IEP goals. For many parents of students with special needs, receiving their child’s first progress report of the school year can be daunting. Not only is there a lot of information to digest, but the traditional anxiety of wondering whether your child is making progress in their education adds in to create a stressful experience.

Progress reports can be difficult to digest because there is a great deal of information provided within just a few pages. However, each piece of information is important in understanding your child’s success in their educational placement. Progress reports must contain the child’s annual goals, each goal’s objectives, and a summary of the measurable data used to access the student’s progress. Progress, in the form of measurable data, must be reported on each separate objective. For the most accurate representation of the student’s abilities, there should be at least three points of data for each objective. These data points may be called “inventories” on your progress report and tell the parent how the child has performed this marking period. The data point marked as “baseline” indicates where the student started. It is imperative that the child’s baseline data be provided in the progress reports in order to appropriately gauge the student’s progression and/or regression. From there, a parent or guardian can compare the student’s baseline data to their current data to evaluate their progress. It is important to remember to ensure that the measurement being used to monitor the student’s progress is the same measurement that is written in the IEP.

Progress reports must also include comments from the intervention specialist and/or related service provider collecting the data, and a description of the child’s progress toward meeting each goal in measurable terms and in clear, concise language. The comments from the intervention specialist should include the number of times your child was assessed and the manner in which your child was assessed, such as the time of day they were assessed and whether they were assessed in a one-on-one or small group setting. Any specific issues that may have impeded the student’s progress, such as excessive absences or refusal to participate, should be noted in the progress report as well. It is typical to see more information under each objective rather than under the annual goal itself; this is because the student is working toward meeting each objective in order to reach the overall goal. All of this information is provided to the parent in order for the parent to determine whether their child is making adequate progress in their education.

What is adequate progress, anyway? Well, it is unique to each student, given that each student’s IEP goals should be specifically tailored to the child. However, we can utilize the baseline, inventory, and target data to evaluate the student’s performance. For example, a student’s goal may be to decrease time spent demonstrating unexpected negative behaviors for less than fifteen minutes a day. That student may have had a baseline of demonstrating unexpected negative behaviors for 45 minutes a day. We can look at the inventories of measurable data to determine whether the student’s time spent demonstrating unexpected negative behaviors have decreased. At the end of the school year, the student is demonstrating unexpected negative behaviors for 20 minutes each day. The student did not meet their goal but was able to decrease their time by a significant amount, which is considered adequate progress. On the other hand, if that student was demonstrating behaviors for 70 minutes a day at the end of the school year, a movement from the baseline further away from the target, the data is showing regression. Parents should look at their child’s progress on each objective, as well as the overall goal, to determine whether their child is making appropriate progress.

What are the next steps that a parent can take after receiving an unfavorable progress report? Parents always have the right to call an IEP meeting at any time during the school year. If the student is not making adequate progress toward their goals, parents can use the data provided by the school to write new, more appropriate goals for the student. The Individuals with Disability Education Act (IDEA) states that the school must revise an IEP to “address any lack of expected progress toward annual goals.” Alternatively, if the student has regressed, parents can use this data to advocate for extended school year (ESY) services to combat regression of skills.

Although progress reporting periods can be a stressful time for families with students with special needs, parents can be assured that the flexible nature of an IEP will allow them to make necessary adjustments at any time. As a parent, advocating with our emotions can lead to further disputes with the school. However, advocating for your child with solid data can open the door to endless possibilities for appropriate special education services.

Written by Renee Stromski, Esq. of Albeit Weiker, LLP

Questions? Call us! 614.745.2001

HOW TO: Be A College Student With A Disability

If you were a student with a disability in elementary, middle or high school and are now in college, you’ve probably noticed a huge difference. Gone are the intervention specialists and teachers who read your IEP or 504 and kept you on track educationally, emotionally or physically. College professors expect you to manage your classes, your student life, everything, on your own. They may never have heard of an IEP or 504, and they may not understand that you may need accommodations. But you do. Still. So what should you do?

You hopefully received in high school what the law calls FAPE – a Free and Public Education. If you had an IEP, it should have been tailored to making sure you received specialized educational services under IDEA – the Individuals with Disabilities Education Act. Or you may have had a 504 plan – accommodations for your disability that you were entitled to based on Section 504 of the Rehabilitation Act of 1973.

Here’s the bad news. Colleges don’t have to provide a Free and Appropriate Education (FAPE) to you. This is because colleges are not subject to IDEA.

However, you still have protections. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act of 2008 prohibit discrimination on the basis of disability in college.   This means that those accommodations you received under an IEP or 504 in high school may still apply in college.

The huge difference between high school and college: you are your own advocate. In high school you had teachers, parents and administrators helping you and advocating for you. You may have gone to your annual IEP or 504 meetings, where a lot of school staff and you and your parents hashed out a plan that was the best fit for you to learn what you needed to learn.

But in college, you are the one who needs to bring up your need for accommodations.

- The "How To" -

1. Identify yourself to the college as a student with a disability. Colleges should have an office responsible for disability services. Check out their website and see what kinds of documentation they require, and what services they routinely offer. For example, Columbus State Community College offers Read and Write Gold for everyone on campus regardless of disability.

2. Get tested, if necessary. The college may need documentation. Colleges can set their own requirements for documentation, and often a copy of your 504 Plan or IEP is not enough to prove that you currently have a disability.

   • Who pays for any testing you may have to get? In high school or below, the school district paid for any evaluations. Colleges are not responsible for paying. If you qualify for your state vocational services, the state may pay. Opportunities for Ohioans with Disabilities (OOD) at http://www.ood.ohio.gov/Core-Services/BVR can help. Otherwise, you are responsible for paying for an evaluation that the college needs to determine if you have a disability.

3. Documentation to show the following:

   • That you have a disability;

   • The disability substantially limits a major life activity; and

   • The disability shows the need for academic adjustments (or accommodations).

     • When don’t you need documentation? A medical diagnosis may be enough for a college, proved that it includes how the disability impairs you as a student. Colleges have leeway in making this determination – you may be required to provide additional documentation.

4. Work with the college in determining which accommodations are necessary for you. It isn’t as simple as showing the college what you got in high school and asking for the same accommodations. Remember, you don’t have the right to specialized educational services. Colleges do not have to give you any accommodation that fundamentally alters the program or result in undue financial burden on college. For example, you may get extra time on a test, but the college won’t have to change the content of the test.

Remember, the person at the disability office is not like your intervention specialist or teacher in high school. The disability officer evaluates your documentation, works with you to figure out which services you need, helps you with arranging services and testing modifications, and deals with any problems that may come up. The officer does not tutor you, give you counseling, or help you manage your time. Depending on the college, other offices may provide tutoring, counseling and other services.

Who pays for aids or services you may be entitled to receive? Colleges cannot require that you pay for them, and they can’t charge you more than non-disabled students. In most cases the college is responsible for aids or services, although colleges don’t have to pay for aids or services that are an undue financial burden on the college.

Finally, you should plan on initiating this process as soon as possible. Don’t wait until after you have struggled all semester in a class! These are proactive accommodations – the point is to help you as problems arise, not give you a pass afterwards. Ask for accommodations before you take the test, write the essay, or do the lab. Be your own advocate. We have encountered issues where colleges were not aware of the disability, no request for accommodations were made by the student, and now the student is facing academic probation or expulsion.

- Think about the following -

• Understand your disability. Be able to explain it clearly to others.

• Acknowledge your areas of strength as well as weakness. We all have them. Own them.

• Make sure you are prepared for the classes. If you are weak in math, take preparatory classes so that when you get to college you can succeed. Take the summer school program in your college. Community colleges are excellent places to take classes, get used to college, and still have a bit of a safety net. Columbus State Community College has excellent disability services. Call them.

• Learn time management and organizational skills. All college students need them, but disabled students often have to work harder and longer than the average student. Make sure that you work smarter, not just longer.

• Finally, do your research when considering colleges. Some colleges are better suited than others for your type of disability. Visit, ask questions, and look at the requirements for the program(s) you are interested in. Don’t waste your time and money in a program that is not a good fit.

If you feel that the college has discriminated against you because of your disability, work with the disability officer. If that doesn’t work, move higher up the chain of command. And if you need someone to advocate for you, contact Albeit Weiker, LLP. We understand higher education and disability law.   You may not be entitled to a free and appropriate college education, but you have legal rights as a student with a disability.

Questions? Call us! 614.745.2001