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504 and IEP Plans

The law of special education in Arkansas

Jennifer Wells

on 26 July 2017

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Transcript of 504 and IEP Plans

at public expense,

under public supervision and direction,

and without charge.

What is a disability?
What is discrimination?
What is a 504 Plan?
Parents' Rights
Student Rights
A Few More Things
Due Process
Any Questions?
Helpful Resources
What is an IEP?
A disability is a mental or physical impairment that substantially limits one or more major life activities.
It is also a record of such an impairment.
It is also being regarded as having such an impairment.
So, what is an impairment?
1. Impairments are considered in their
unmitigated state
, which means that when deciding whether a student has a disability, the school must consider the state of the student’s impairment without any of the aids which might lessen the effects of that impairment.
3. An impairment that occurs in episodes or is in remission is still a disability if it would
limit a
major life activity
when it is active.
2. Is the student deaf without a hearing aid? Is the student unable to move about regularly without leg braces?
Major Life Activities

Manual tasks
Also includes Bodily Functions:
Functions of the immune system
Normal cell growth
Explicitly includes, but is not limited to:
The Individuals with Disabilities Education Act (IDEA) lists these standards:
A child with a disability means a child who has been through an IDEA evaluation and has been found to have one of the following, and who for that reason needs special education and related services:
1. Mental Retardation*
2.Hearing impairment, including deafness
3.A speech or language impairment
4.A visual impairment, including blindness
5.A serious emotional disturbance
6.An orthopedic impairment
8.Traumatic brain injury
9.Other health impairment
10.A specific learning disability
12.Multiple disabilities
—this is the term the law uses, but you should not. The preferred phrase is “Intellectually Delayed.”
Why do these definitions matter?
i.Denying the student the opportunity to participate in or benefit from a service

ii.Providing an opportunity to benefit that is not the same as the opportunity provided to non-disabled students

iii.Providing a benefit or service that is less effective than the one provided to non-disabled students

iv.Providing a different or separate benefit or service UNLESS it is necessary. Be prepared to defend how and why it is absolutely necessary.
Because it’s
for schools to discriminate
on the basis of disability by:
If it is necessary, it must be as effective as those services provided to other students.
"Equally effective”

Students with disabilities must be given an equal opportunity to reach the
result or gain the same benefit or reach the
level of achievement as non-disabled students.
The Rule:
Schools may not discriminate against students with disabilities in criteria or methods of administration.
Methods of Administration:
Written policies or formal policies, whether or not written
The school's practices and procedures--how the school carries out those policies
Discriminatory Policies
Have the effect of discriminating against
with disabilities, even when that effect may not have been intended or anticipated.
Have the effect of holding back, defeating, or otherwise impairing the objectives of the
education program
for students with disabilities, whether or not intended or anticipated.
Not only:
But also:
"I was specifically told to do this"
"It's written in the handbook"
"Everyone does it"
"It's just understood"
"It's been done this way for years"
"Everyone knows it's being done and no one tries to stop it"
Free Appropriate Public Education
The Law:
Section 504 Definition: “The provision of regular or special education and related aids and services that are designed to meet individual and educational needs of persons with disabilities
as adequately
as the needs of nondisabled persons are met and are based upon adherence to procedures that satisfy the requirements” of all related applicable governmental regulations.
FAPE means that special education and related services are provided:
It must meet the standards of the ADA and it must be provided in conformity with an IEP.
FAPE applies to nonacademic services too—counseling, athletics, transportation, health services, recreational activities, special interest groups, clubs, and employment (career services programs, work-study, and employment by the school).
FAPE means that the education of a student with disabilities must meet that student’s needs
as adequately
as it meets the needs of nondisabled students
This entitlement does not rest on whether the student is eligible for an IEP. FAPE applies to
all students with disabilities
, whether or not they have an IEP.
1. Modifying rules, policies, or practices as necessary
2. Building ramps or removing architectural barriers
3. Removing communication barriers—getting an interpreter
4. Providing aids, assistive technology, or other services
5. Modifying curriculum—for a small number of students
6. And More
For some students, this will require the school to make
Decisions about accommodations must be made on an
individual basis
based on each student’s individualized educational evaluation. There is no cookie-cutter set of accommodations for a disability.
Least Restrictive Environment
Special classes, separate schooling, or removal of children with disabilities from the regular educational environment occurs
if the nature or severity of the disability means that education
be satisfactorily achieved in a regular classroom with the use of supplementary aids or services.

Removal may also occur when the student’s behavior interrupts the education of other students.
The Rule:
Schools must ensure that students with disabilities are educated with students who are nondisabled.
Students with disabilities must be educated alongside nondisabled students to the
extent appropriate.

Whenever possible, a student with a disability should be in the
class as her nondisabled peers.

Removal from the regular educational environment should occur only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily,
even with the use of supplementary aids and services.

The burden is on the school to prove that the removal of a student from the regular education environment was appropriate. When a student is removed, be prepared to defend why it was necessary.
Maximum Feasible Integration
A 504 Plan protects students who have a disability that substantially limits one or more major life activities.

It outlines educational services to be provided to the student specifically, including accommodations and educational services.

504 Plans should be reviewed
at least

There is no standard 504 plan. Every student is different and needs a plan specifically tailored to his needs.

504 Plans can be temporary. This doesn’t mean the disability disappears.

A student may need a 504 plan, even if she does not qualify for an IEP.
We'll discover why next.
The 504 in "504 Plan" comes from Section 504 of the Rehabilitation Act of 1973. It simply states that no otherwise qualified individual with a disability in the United States may be excluded from participation in or benefits of any program receiving Federal funding solely by reason of that individual’s disability. Due to this law, schools must come up with a plan to allow students with disabilities to participate in school and receive the benefits of an education.
The Law:
How does a 504 Plan work?
A written statement for a child with a disability that is developed, reviewed, and revised at least annually.
1. Has one or more of the 13 disabilities listed in IDEA (which includes learning disorders and attention disorders),

2. As a result of that disability, the child needs special education to make progress in school and benefit from the education program.
A student may be served by special education if he:
Some students with learning disorders or attention disorders may not meet the requirements of that second part.

Even so, those students may still need a 504 Plan if their disability substantially limits one or more major life activities.
If a student is receiving services, that student would benefit from a plan. It is inappropriate to simply patch together a student’s education when that student is entitled to an evaluation and tailored education plan. That informal assistance may be helpful in the short term, but is ultimately a disservice to the student in the long term.
What are the differences?
A 504 is available to any student with a disability.

Let’s get rid of a common misconception--A straight A student could need a 504 Plan. 504s aren’t just for students who are struggling with their grades.

An IEP is available only to students who have a disability and need special education services in order to participate in and receive the benefits of an education to the same extent as their nondisabled peers.
Does a student need both?
A student usually needs only one. An IEP is more involved than a 504 plan, so a student with an IEP usually does not need a 504. If a student has a 504 and needs special education, that student needs an IEP instead.

Could you technically have both? Sure. A student may need an IEP for one disability and a separate 504 for another disability, which does not qualify for a 504 due to the type of disability.
Is it appropriate to give a student informal help or informal accommodations that might be contained in a 504 or IEP?
What is in an IEP?
How the child’s disability affects the child’s involvement and progress in general education
How the disability affects the child’s participation in appropriate activities
The team must consider the strengths of the child, concerns of the parents, results of the most recent evaluation, and the academic, developmental, and functional needs of the child.
Goals are designed to meets the child’s needs that result from the disability and
Meet the child’s other educational needs that result from the disability.
How the child’s progress toward the goals will be measured
When reports on the child’s progress will be provided
The projected date of beginning services.
A statement of the special education and related services to be provided.
1. Transportation
To and from school and between schools
Around and in school buildings
Specialized equipment (buses, lifts, ramps)
2.Developmental, corrective, and other supportive services
3.Speech-language pathology
4.Audiology services
5.Interpreting services
6. Psychological services
1. A statement of the child’s present levels of academic achievement and functional performance.
2. A statement of measurable annual goals, both academic and functional.
3. A description of:
4. An explanation of the extent to which the child will not participate with nondisabled children, if any.
7.Physical and occupational therapy
9.Rehabilitation counseling
10.Orientation and mobility services
11.Medical services for diagnosis or evaluation
12.School health services
13.School nurse services
14.School social work services
15.Parent counseling and training
Related Services:
Who is on an IEP Team?
1. The
of the child
2. At least one
education teacher of the child
3. At least one
education teacher of the child
4. A
representative of the school
who is qualified to provide or supervise the provision
of specially designed instruction to meet the needs of children with disabilities and is
knowledgeable about the curriculum and availability of resources.
5. A person who can
evaluations and the implications of those results
6. The
i. Must be invited when the discussion is about transition or postsecondary goals
ii. Must be invited when the student is 18
iii.May be invited whenever appropriate or whenever the team desires
An IEP team is a group of individuals that is responsible for developing, reviewing, or revising an IEP for a child with a disability.
The school and parents agree in writing that the topic of that meeting is outside of the member’s area of expertise or is not being modified or discussed in that meeting and the

member’s input is not needed
The member lets the team know

in advance


provides his input in writing
The school and parents excuse that team member in writing.
For all other purposes, the meeting should be rescheduled so all team members may attend.
IEP members must appear at
team meeting
When reviewing
data as part of an evaluation or re-evaluation.

When administering a test or evaluation that is administered to
students, unless consent of all parents is required for that test as well.
The school must ask for parental/guardian consent to conduct an initial evaluation of a student if parents or guardians exist.

If the parent(s)/guardian(s) consent to the initial evaluation, it must not be treated as consent for providing special education services. That requires separate consent.

If the parent fails to respond to requests, the school may (but is not required to) conduct an initial evaluation. The school must document carefully all efforts to reach the parent/guardian.

Parents must consent to the provision of services separately, by the same process and rules.

Parents must consent to re-evaluations.
Recall that we don’t provide services under the table.
When is consent
The state has established procedures to ensure that a parent’s refusal to consent does not result in a failure to provide FAPE to any student.
Parents must be notified in writing well in advance of any meetings which may be held or actions which may be taken in accordance with the education of their child, including:
changes in placement,
and more.

Parents must be notified of determinations about their child’s disability and the reasons for that determination.

Parents must be notified of the termination of their child’s eligibility. The school must also provide a summary of the child’s academic achievement and functional performance, including recommendations on how to help the student meet postsecondary goals.
Description of the action proposed or refused
Explanation of
Description of the procedure or basis for the determination
Statement that the parents have procedural protections
Sources for the parents to contact to obtain assistance
Description of options considered by the IEP team and
those options were rejected and
A description of any other relevant factors.
The notice contains:
(protections that provide a way to complain or dispute)

If the parent needs an
, the school must take whatever action is necessary to ensure the parent understands what is happening in the meeting, including providing an interpreter.

2. If
parent can attend, the school must use other methods to ensure participation, such as conference calls or individual calls.

3. If the parent
to participate or respond, the school must have a record of the attempts to notify parents and obtain their participation, but then the school can make a decision without the parents.
1. An informal, unscheduled chat with school personnel

2. When no action is being taken with regard to the student and no determinations are being made and the full team is not present

3. Everything else is a meeting and the parents must be notified in advance of their right to attend.
If a parent asks to inspect their student’s records, they must be
allowed to do so.

A parent must be given a copy of the IEP upon request

no charge.

the student is older than 18 and requests that the parent be denied access

Parents may request that incorrect information in the record be amended. If the school disagrees that the information is incorrect, a hearing may be held to determine whether the record should be amended.
At least annually

Whenever the team believes one is needed

At the request of the parents

Never less than once a year
Parents get to participate in meetings. They must be notified in advance and if they want to attend, the meeting must be held at a mutually agreed time and place so they can attend. A parent must be present at any meeting that makes decisions on the educational placement of the child.
The Rule:
What is
a meeting?
Right to inspect and amend records
Right to request an assessment
1. The school provides written notice to the parents and obtains consent.

2. The school and IEP team use a variety of assessment tools and strategies, not using any single measure or assessment as the sole criteria in making a determination.

3. The school also uses technically sound instruments and is careful to avoid the incorrect collection of faulty data.

4. The school ensures that the materials used to assess students are selected and administered so as not to be discriminatory on a racial or cultural basis.

5. The tests are administered by trained personnel and in accordance with instructions provided by the test makers.

6. The child is then assessed in all areas related to the suspected disability.

7. The parent is notified of the determination and the reasons for the determination, as well as the right to request an assessment to determine whether the student continues to be a student with a disability and to determine the student’s educational needs.

, and that evaluation can be at public expense. The parent requests it by written complaint. The school must either file a complaint to show that its evaluation was appropriate and it must prevail, or else it must ensure that an
independent evaluation
by a qualified examiner who is not a district employee is provided at public expense.

2. The parent is entitled to only
of these each time the school conducts an evaluation with which the parent disagrees.

3. That independent evaluation must be conducted based on the same criteria that the district used, and the school can’t impose conditions or timelines on that IE, except for the criteria.
What is involved in assessment?
Can a parent disagree with the results of an assessment?
Can a parent request an independent assessment?
When is a re-evaluation required ?
When the child turns 18, all parental rights transfer to the child and the child is invited to attend meetings.
Transfer of parental rights at the age of majority
Tripp Walter
Staff Attorney
1401 West Capitol,#315
Little Rock, AR 72201
(501) 492-4300

What is a "specific learning disability"?
What sort of documentation should
I be keeping?
What are extended year services and when might they be required?
The student’s regular teacher.

If the student has no regular teacher, then a regular classroom teacher qualified to teach a student of the same age

And at least one person qualified to conduct individual diagnostic exams of the child (school psychologies, speech pathologies, remedial reading teacher). More than one is even better.
A disorder in one or more of the basic psychological processes involved in
understanding or in using language
, spoken or written.

It may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations.

Includes conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
“The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.” 34 C.F.R. §§300.7 and 300.541
What it's not:
Team Members
i. Whether the child has a specific learning disability.

ii. The basis for making the determination.

iii. The relevant behavior, if any, noted during observation of the child and the relationship of that behavior to the child’s academic functioning.

iv. The educationally relevant medical findings.

v. Whether the child does not achieve adequately—child does not make sufficient progress to meet grade level standards or the child exhibits a pattern of strengths and weaknesses in performance or achievement.
Document everything.
Short Answer:
The determination of the student’s eligibility for an IEP must contain a statement of:
Extended school year services are services extended beyond the normal school year in accordance with a student’s IEP at no cost to the parents of the child. These services must meet ADE standards, just like the regular school year.

The school must provide these if necessary to provide FAPE.

A school may not limit the extended school year services to particular categories of disability, nor unilaterally limit the type, amount, or duration of those services.
If the parents disagree with determinations about placement or the manifestation determination, or if a school believes that maintaining the current placement is likely to result in injury to a child or other students, the parents may appeal the decision by requesting a hearing.

The child remains in the interim placement until the decision is complete.
The state and district must ensure that a continuum of alternative placements is available to meet the needs of students with disabilities for special education and related services.

These placements include regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions—in that order.
A change of placement occurs if a student with a disability is removed from her placement for
more than 10 consecutive school days

OR has been subjected to a series of removals that constitute a

Because the series of removals total more than 10 school days in a school year;
Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in removal; and
Because of additional factors such as length of removal, total amount of removal time, and closeness in time of the series of removals.

A change in placement is not done lightly and comes with its own special rules. If a change is necessary, the student must be moved along the continuum to an alternative placement. A student is NEVER removed from education in an age appropriate regular classroom solely because he needs modifications in the general education curriculum.
10 school days
of any decision to change placement because of a violation, the school, parents, and IEP team must review all relevant information and determine whether the conduct was caused by or had a direct relationship to the child’s disability OR if the conduct was the direct result of the school’s failure to implement the IEP.

If the conduct was a manifestation of the disability, the team must conduct a behavioral assessment, review the behavioral intervention plan, and modify it as necessary to address the behavior.

The child must be put back in the placement from which he was removed, unless the school and parents agree otherwise.

If the conduct was the result of the school’s failure to implement the IEP the school must immediately remedy the problem by implementing the IEP.
What is the continuum of alternative placements and how does it work?
What is a change of placement?
Discipline of students with an IEP is conducted on a
case by case basis

School personnel may remove such a student who violates a code of student conduct from the current placement to an appropriate interim alternative educational setting, to another setting, or to suspension for
not more than 10 consecutive days

Additional sets of up to
10 consecutive days
may occur for separate offenses, but only as long as those removals don’t constitute a change of placement.
During these removals, the school
provide services to the extent required to provide FAPE and to correct the behavior violation so that it does not happen again.
If the disciplinary change in placement would exceed 10 consecutive school days, and if the behavior that caused the violation is not a manifestation of the child’s disability, the school can apply the relevant disciplinary procedures in the same way they would apply to nondisabled students.

The school
may not completely cease educational services
, even during a valid period of expulsion, although another placement may take place. Expulsion is a change of placement.
School personnel may remove a student to an interim alternative educational setting for
not more than 45 days
regardless of whether the behavior was a manifestation of the child’s disability if the child:

1.Carries a weapon to or possesses a weapon at school,

2.Knowingly possesses or uses illegal drugs or sells them, or

3.Has inflicted serious bodily injury upon another person while at school, on campus, or at a school function.
If the student commits a crime, the school may report it and it may be prosecuted, regardless of the student’s status or IEP.
How does disciplinary action take place?
How is the disciplinary process affected when the act is a manifestation of the student’s disability?
Interestingly, this section also applies to students suspected of having a disability for whom no determination has yet been made.
Special Circumstances
If the school fails at providing FAPE or accommodating or not discriminating, can the parents or student sue the school?

Yes. They can sue the school and request that the court force the school to act differently (equitable relief), or they can sue for money they have lost in making up for these failed services, closing the gap in the student’s education, medical expenses caused by the school, or any other reasonable and provable out-of-pocket expense caused by the school’s failure (compensatory damages). They may also be entitled to have the district pay their attorney’s fees, which can be several thousand dollars.
Mediation, civil hearings, due process hearings
Arkansas Department of Education Special Education Division
Arkansas Department of Education
Full transcript