Practice Note:  Why an IEP (IDEA) over a § 504 plan?

Often schools are confounded when a parent or advocate insists upon an IEP under IDEA, rather than accept a § 504 Plan.  Consider the important differences between a § 504 Plan and an IEP. 

1.  Enforceability:  One practical problem with § 504 Plans is that once they are created schools tend to treat them rather casually.  Often teachers are not informed of the requirements of the plan or simply fail to implement them.  Most school districts have very poor provisions for enforcement or remedies for failure to implement.  This latter situation is slowly changing  OCR has found a number of Florida counties in violation of s 504, because they do not have a due process procedure or because they require parents to go through some grievance procedure before filing to due process.  It is more possible to challenge school districts on s 504 issues in Florida now and it is important that attorneys begin availing themselves of this remedy.

2.  Reviewability:  An IEP must be reviewed every year, while § 504 Plans are usually created and then ignored, without reconsideration or review.  This could depend upon school district policy.

3.  Provision of services:  While schools may provide some basic accommodations under a § 504 Plan, they are rarely willing to provide any services or special classes. §504 is an unfunded mandate and therefore it provides no money for the provision of services. These students may need special classes (Learning strategies) and services (Functional behavior assessment, positive behavior support plan, sensory diet, socialization help, etc.).  These things require an IEP. 

4.  Measurement of Progress:  § 504 Plans do not require the establishment of present levels of performance (baseline) nor measurement of progress.  Student’s with disabilities very often need more than accommodations.  They need to be taught to compensate for and manage their disabilities.  Progress toward acquiring these skills, like all education progress, needs to be measured.  IEPs require present levels of performance and measurable goals and objectives.  § 504 requires the provision of access to the general curriculum, but not necessarily the provision of educational benefit or progress.

5.  Fewer Discipline Protections: Although students with § 504 plans do receive a few legal protections when behavioral issues arise, they are not nearly as well protected as students with IEPs.  Many schools are frankly ignorant of the protections, which must be afforded 504 students and these student’s rights.  Students with IEP have well developed and generally recognized legal protections.

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