Wednesday, March 29, 2017

Understanding Federal Disability Laws

Parents often ask us to explain the differences between the IDEA (Individuals with Disabilities Education Act) and Section 504 (of the Rehabilitation Act of 1973). And, for post-high school students who are no longer eligible under the IDEA, we get similar questions about the Americans with Disabilities Act (ADA). We've written about each of these laws numerous times in our more than 900 posts, often comparing and contrasting them. You can use the search feature on the right hand side of this page to search the "tag" for each law.

A 2016 Arizona case that ended up in the U.S. Court of Appeals for the Ninth Circuit contains a helpful explanation comparing and contrasting these several laws. Thanks to attorney Pete Wright for bringing it to the attention of his colleagues. The excerpts from the Circuit Court decision appear without quotation marks, citations, or footnotes, and we have added in headings to make it easier to read. You can see properly formatted text in the full court decision.

The Circuit Court explained:
There are three primary and overlapping pieces of federal legislation... The IDEA, Section 504 of the Rehabilitation Act, and Title II of the ADA.

Congress enacted the IDEA to ensure that all children with disabilities have available to them a free appropriate public education [or FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. The IDEA focuses on making a FAPE available to disabled students through development of Individualized Education Programs (IEPs). States receiving federal financial assistance under the IDEA must have in place policies and procedures to properly develop IEPs for qualifying children.

Section 504
Section 504 of the Rehabilitation Act is broader than the IDEA; it is concerned with discrimination in the provision of state services to all individuals with disabilities. It provides that no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance
Like the IDEA, section 504 applies to public schools that receive federal financial assistance ...
The regulations adopted pursuant to section 504 require qualifying public schools to provide a free appropriate public education to each qualified handicapped person.

How FAPE Differs Under Each Law
FAPE is defined differently for purposes of section 504 than it is for the IDEA. Under ... section 504 regulations, FAPE requires "regular or special education and related aids and services that
(i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and
(ii) are based upon adherence to procedures that satisfy the requirements of [the law]".
Section 504's regulations gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled. One method of ensuring that the educational aids and services are designed to meet individual education needs as required under [504] is to implement an IEP developed in accordance with the IDEA, but a showing that FAPE was denied under the IDEA does not necessarily establish a denial of FAPE under section 504.

Title II of the ADA was modeled after section 504.... It provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
[Both Section 504 and the ADA include the right to sue for damages. However, a public entity can be liable for damages under § 504 (or the ADA) only] if it intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.

While the IDEA remains the best option for many of the students we see, it is important to be aware that there are other federal laws that can help students -- and all individuals -- get the help they need to overcome their challenges. 

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