Parents working to secure accommodation for a child with learning differences or other disabilities often question what their child qualifies for and the material distinctions in the protections their child can receive when covered by an “individualized education plan”(“IEP”) versus a “Section 504” plan (“504”).
The following highlights some of the key differences between the two.
All Students With Disabilities Have The Right to FAPE
Students with disabilities have the same right to K-12 public education that students without disabilities enjoy.
Public elementary and secondary schools, including charter schools, provide a free appropriate public education (FAPE) to all qualified students with disabilities (generally, students with disabilities who are of school age), regardless of the nature or severity of their disabilities.
To receive and benefit from FAPE, students with disabilities may need special education and/or related aids and services. Federal law generally requires public elementary and secondary schools, including charter schools, to provide a FAPE to all qualified students with disabilities (generally, students with disabilities who are of school age), regardless of the nature or severity of their disabilities. FAPE provides these students the legal right to special education and related services at public expense, at no cost to parents, in the Least Restrictive Environment (LRE).
Most students with disabilities qualify for FAPE pursuant to Section 504 of the Rehabilitation Act and Title II of the Americans With Disabilities Act (“ADA”) (hereafter collectively “Section 504”). The Section 504 rules for education generally require public schools to accommodate the disabilities of all students with disabilities within the general curriculum and framework applicable to non-disabled students by providing appropriate modifications, aids and related services free of charge to students with disabilities and their parents or guardians. The “appropriate” component means that the school must design the education to include the supports and accommodations necessary to meet the individual educational needs of the student in the least restrictive environment in a way that enables the student to participate in all aspects of the school experience to the extent possible given their disabilities as determined through appropriate evaluation and placement procedures. Typically, this means the student participates in regular classrooms and other aspects of the school activities with supports and accommodations delivered by the instructors or other school staff running those activities.
The IDEA addresses the needs of students with more severe or other disabilities that cannot enjoy FAPE through mere accommodations or supports within the general education plan alone but requiring schools to develop an “individualized education plan” or “IEP” to provide FAPE. As a result, tge school special education team generally manages the delivery of FAPE for students with an IEP.
Regardless of whether the student qualifies for FAPE under an IEP or a Section 504 Plan, the requirement that the student be educated in the least restrictive environment dictates that the student receive FAPE in regular classrooms and other school environments as other non-disabled students to the extent possible by the student’s disabilities. However, the special education team and department rather than the general faculty generally leads and administers the individual educational plan and its management where a student qualifies for and is covered by an IEP.
Legal Foundation
The legal foundation and authority differs for an IEP compared to a Section 504 Plan. This distinction limits the students that can qualify for an IEP, the nature and approach to defining and providing the educational modifications and supports needed to deliver FAPE, and the rights, procedures and recourse available to a student with disabilities.
While the IDEA and Section 504 of the Rehabilitation Act both provide qualifying students with disabilities the right to FAPE, eligibility and coverage by the IDEA is more restrictive, as it targets students whose disabilities are of a nature and severity that cannot the student can’t receive FAPE through mere accommodations to the general educational plan and practices but instead require changes to the educational plan necessitating that the school to create an “individualized education plan” or “IEP” specifically for that student to achieve FAPE.
IEPs arise from and are governed by the Individuals with Disabilities Education Act (IDEA), a special education law requiring individualized instruction. IEPs provide special education services for students with disabilities of a nature and severity that the student cannot receive a FAPE unless the school tailors the education plan itself to the student rather than merely making accommodations to the education plan generally applicable to all students.
Section 504 Plans arise from and are governed by Section 504 of the Rehabilitation Act of 1973, a civil rights law prohibiting disability discrimination. 504 plans ensure equal access to education.
Eligibility Criteria
The coverage eligibility criteria for Section 504 Plans under Section 504 are broader and easier to meet than those for an IEP under the IDEA.
Coverage under the IDEA required to qualify for an IEP requires the child possess a disability that falls within specific IDEA disability categories and must require specialized instruction.
Section 504 allows broader eligibility because the Rehabilitation Act covers any impairment substantially limiting a major life activity and does not condition coverage on a need for specialized instruction to accommodate the disability.
Services Provided
IEPs provide specialized instruction and related services such as speech therapy, occupational therapy, or counseling. They must include measurable goals and progress tracking. The IEP also can and frequently does reduce or modify curriculum.
A 504 Plan provides accommodations for the student’s disability within the classroom or other school activity such as extended time, seating, or modified assignments. They also provide health-related supports necessary for the student.
Formality & Process
The IEP and its process is more formal than a Section 504 Plans.
An IEP is a detailed formal written plan with required team meetings, strict timelines and procedural safeguards that provide a clear administrative process.
In contrast, a 504 Plan is less formal with no standardized format. Its rules provide fewer procedural requirements and less clear boundaries and safeguards.
Funding
IEPs and the IEP process receives specific federal funding under IDEA.
In contrast, federal law provides schools no additional funding for 504 Plans and process.
Enforcement
While both the IDEA and the Rehabilitation Act allow parents or students can bring private litigation to redress violations after exhausting procedural requirements, private litigation is relatively rare. Instead, administrative enforcement is more common, but differs for IDEAs versus Section 504 Plans. The IEP requirements of the IDEA are administered and enforced through IDEA due process hearings. in contrast, the 504 Plan requirements of the Rehabilitation Act are enforced through U.S. Department of Education Office for Civil Rights (“OCR”). Students with disabilities denied FAPE also may have standing to sue covered schools, or other educational organizations for violations of the IDEA, Section 504 and the ADA. However, private litigation remains, relatively rare, considered against the vast majority of individuals receiving these services for a host of reasons.
And light of these rules, educational organizations, and families of students with disabilities should work together to promote full access to FAPE for the student. Understanding and following the process of some procedures and persistent diligence often is necessary to ensure proper assessment and identification of the students disabilities and needs and the formulation and consistent administration of the educational plan to service those needs are accomplished.
Addressing Violations
Schools typically have a special education or other department responsible for coordinating compliance with the IDEA, Section 504, Title II, of the ADA and other disability rules.
The school must also have grievance procedures. These procedures in primary or secondary schools typically are published or referenced in the student or parent handbook. Parents also receive formal notice of these procedures at the commencement and other stages of the process.
if you have questions about this or other education concerns, contact the author.
For More Information
We hope this update is helpful. For more information about the or other health or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Peer recognized as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in Health Care Law, Labor and Employment Law; ERISA & Employee Benefits,” and “Business and Commercial Law,” Cynthia Marcotte Stamer is an A Martindale-Hubble “AV-Preeminent” (Top 1%) attorneys board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of legal and management work, public policy leadership and advocacy, coaching, teachings, and publications for educational, health care, insurance, employer and other clients.
Throughout her adult life and nearly 30-year legal career, Ms. Stamer’s legal, management and governmental affairs work has focused on helping health industry, school and other educational organizations, employer, health benefit and other organizations and their management use the law, performance and risk management tools and process to manage people, performance, quality, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer supports these organizations and their leaders on both a real-time, “on demand” basis as well as outsourced operations or special counsel on an interim, special project, or ongoing basis with strategic planning and product and services development and innovation; workforce and operations management, crisis preparedness and response as well as to prevent, stabilize and cleanup legal and operational crises large and small that arise in the course of operations. Her experience encompasses helping health industry clients manage workforce, medical staff, vendors and suppliers, medical billing, reimbursement, claims and other provider-payer relations, business partners, and their recruitment, performance, discipline, compliance, safety, compensation, benefits, and training ;board, medical staff and other governance; compliance and internal controls; strategic planning, process and quality improvement; change management; assess, deter, investigate and address staffing, quality, compliance and other performance; meaningful use, EMR, HIPAA and other data security and breach and other health IT and data; crisis preparedness and response; internal, government and third-party reporting, audits, investigations and enforcement; government affairs and public policy; and other compliance and risk management, government and regulatory affairs and operations concerns.
The American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting, former Vice President of the North Texas Health Care Compliance Professionals Association, past Chair of the ABA Health Law Section Managed Care & Insurance Section, past ABA JCEB Council Representative, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has worked closely with a diverse range of physicians, hospitals and healthcare systems, DME, Pharma, clinics, health care providers, managed care, insurance and other health care payers, quality assurance, credentialing, technical, research, public and private social and community organizations, and other health industry organizations and their management deal with governance; credentialing, patient relations and care; staffing, peer review, human resources and workforce performance management; outsourcing; internal controls and regulatory compliance; billing and reimbursement; physician, employment, vendor, managed care, government and other contracting; business transactions; grants; tax-exemption and not-for-profit; licensure and accreditation; vendor selection and management; privacy and data security; training; risk and change management; regulatory affairs and public policy and other concerns.
As a core component of her work, Ms. Stamer has worked extensively throughout her career with health care providers, health plans and insurers, managed care organizations, health care clearinghouses, their business associates, employers, banks and other financial institutions, management services organizations, professional associations, medical staffs, accreditation agencies, auditors, technology and other vendors and service providers, and others on legal and operational compliance, risk management and compliance, public policies and regulatory affairs, contracting, payer-provider, provider-provider, vendor, patient, governmental and community relations and matters including extensive involvement advising, representing and defending public and private hospitals and health care systems; physicians, physician organizations and medical staffs; specialty clinics and pharmacies; skilled nursing, home health, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing and management services organizations; consultants; investors; technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, insurers, self-insured health plans and other payers; and other health industry clients to establish and administer compliance and risk management policies; comply with requirements, investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry investigation, enforcement including insurance or other liability management and allocation; process and product development, contracting, deployment and defense; evaluation, commenting or seeking modification of regulatory guidance, and other regulatory and public policy advocacy; training and discipline; enforcement, and a host of other related concerns for public and private health care providers, health insurers, health plans, technology and other vendors, employers, and others.and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.
Past Chair of the ABA Managed Care & Insurance Interest Group and, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also has extensive health care reimbursement and insurance experience advising and defending health care providers, payers, and others about Medicare, Medicaid, Medicare and Medicaid Advantage, Tri-Care, self-insured group, association, individual and group and other health benefit programs and coverages including but not limited to advising public and private payers about coverage and program design and documentation, advising and defending providers, payers and systems and billing services entities about systems and process design, audits, and other processes; provider credentialing, and contracting; providers and payer billing, reimbursement, claims audits, denials and appeals, coverage coordination, reporting, direct contracting, False Claims Act, Medicare & Medicaid, ERISA, state Prompt Pay, out-of-network and other nonpar insured, and other health care claims, prepayment, post-payment and other coverage, claims denials, appeals, billing and fraud investigations and actions and other reimbursement and payment related investigation, enforcement, litigation and actions.
Heavily involved in health care and health information technology, data and related process and systems development, policy and operations innovation and a Scribe for ABA JCEB annual agency meeting with OCR for many years, Ms. Stamer also is recognized for her work and scholarship HIPAA p, FERPA, FACTA, PCI, trade secret, confidentiality and privacy, federal and state data security and data breach and other information privacy and data security rules and many other concerns. Her work includes both regulatory and public policy advocacy and thought leadership, as well as advising and representing a broad range of health industry and other clients about policy design, drafting, administration, business associate and other contracting, risk assessments, audits and other risk prevention and mitigation, investigation, reporting, mitigation and resolution of known or suspected violations or other incidents and responding to and defending investigations or other actions by plaintiffs, DOJ, OCR, FTC, Department of Education, state attorneys’ general and other federal or state agencies, other business partners, patients and others.
Ms. Stamer has worked extensively with health care providers, health plans, health care clearinghouses, their business associates, employers and other plan sponsors, schools academic medical centers, and other educational organizations, banks and other financial institutions, and others on risk management and compliance with HIPAA, FERPA, FACTA, trade secret and other information privacy and data security rules, including the establishment, documentation, implementation, audit and enforcement of policies, procedures, systems and safeguards, investigating and responding to known or suspected breaches, defending investigations or other actions by plaintiffs, OCR and other federal or state agencies, reporting known or suspected violations, business associate and other contracting, commenting or obtaining other clarification of guidance, training and enforcement, and a host of other related concerns. Her clients include public and private health care providers, health insurers, health plans, technology and other vendors, and others. In addition to representing and advising these organizations, she also has conducted training on Privacy & The Pandemic for the Association of State & Territorial Health Plans, as well as HIPAA, FACTA, PCI, medical confidentiality, insurance confidentiality and other privacy and data security compliance and risk management for Los Angeles County Health Department, MGMA, ISSA, HIMMS, the ABA, SHRM, schools, medical societies, government and private health care and health plan organizations, their business associates, trade associations and others.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy and governmental and regulatory affairs experience, Ms. Stamer also is widely recognized for regulatory and policy work, advocacy and outreach on healthcare, education, aging, disability, savings and retirement, workforce, ethics, and other policies. Throughout her adult life and career, Ms. Stamer has provided thought leadership; policy and program design, statutory and regulatory development design and analysis; drafted legislation, proposed regulations and other guidance, position statements and briefs, comments and other critical policy documents; advised, assisted and represented health care providers, health plans and insurers, employers, professional. and trade associations, community and government leaders and others on health care, health, pension and retirement, workers’ compensation, Social Security and other benefit, insurance and financial services, tax, workforce, aging and disability, immigration, privacy and data security and a host of other international and domestic federal, state and local public policy and regulatory reforms through her involvement and participation in numerous client engagements, founder and Executive Director of the Coalition for Responsible Health Policy and its PROJECT COPE: the Coalition on Patient Empowerment, adviser to the National Physicians Congress for Healthcare Policy, leadership involvement with the US-Mexico Chamber of Commerce, the Texas Association of Business, the ABA JCEB, Health Law, RPTE, Tax, Labor, TIPS, International Life Sciences, and other Sections and Committees, SHRM Governmental Affairs Committee and a host of other involvements and activities.
A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, privacy and data security, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; a ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
Ms. Stamer also is a highly popular lecturer, symposium and chair, faculty member and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management. Examples of her many highly regarded publications on these and other matters for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, Insurance Thought Leadership and many other prominent publications and speaks and conducts training for a broad range of professional organizations.
For more information about Ms. Stamer or her health industry and other experience and involvements, see here or contact Ms. Stamer via e-mail here.
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