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My Child with a 504 Plan is Failing, School Won't Help:
Your Eligibility Game Plan
by Pam Wright & Pete Wright
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To be an effective advocate for your child, you need to know the differences in the laws that are intended to protect them.
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Recently, we received these questions about eligibility from parents - do any look familiar to you?
"My child is in 8th grade. She has a 504 plan. She received two F's on most recent progress
reports. When
I met with school personnel to request that she receive more help, the
principal said, 'She has to fail on her report card before we can test
her.'"
"My
daughter is diagnosed with bipolar disorder. Before she was diagnosed,
she was in gifted and talented classes. Her doctors say she should qualify
for an IEP under the 'Other health impairment' category."
"The school says my son must have a discrepancy between ability and
achievement to qualify for an IEP but they refused to evaluate him to determine
if he has a discrepancy between ability and achievement."
Differences Between Section 504 and IDEA
Most
of the information you've received from the school about Section 504
and IDEA is simply not true. To be an effective advocate for your
daughter, you need to know the differences between Section 504
and the IDEA.
Section 504 is a civil rights law - the purpose of Section 504 is to
protect people from discrimination because of disabilities.
Section 504 is intended to provide access and remove obstacles. Think about
Section 504 as the law that requires schools add ramps and elevators to
buildings if this is necessary to give disabled children access to the
educational opportunities that are available to children who are not disabled.
The purposes of the Individuals with Disabilities Act are different. When you
read Findings
and Purposes of IDEA, you will see that the purposes of IDEA are:
(A)
to ensure that all children with disabilities have available to them
a free appropriate public education that emphasizes special education
and related services designed to meet their unique needs and prepare
them for further education, employment and independent living;
(B) to ensure that the rights of children with disabilities and parents
of such children are protected . . .
504
Plan: A Consolation Prize
Many
schools offer Section 504 plans instead of IEPs because Section 504
requires less of them. Unlike the IDEA, Section 504 does not create
a right to a free appropriate education from which the child receives
educational benefit. Section 504 does not require schools to
invite parents to the meeting where the 504 Plan is developed.
Dr. Perry Zirkel is a law professor who has written extensively about
Section 504. Dr. Zirkel says schools often use 504 Plans as "consolation
prizes" when students do not have a required discrepancy between
ability and achievement - and this is a big mistake!
Your
Game Plan
Learn About Your Child's Rights & Responsibilities Under 504 & IDEA
Before
you take any action, you need to do your homework. You are frustrated,
confused, and frightened. Please read our article, Emergency,
Crisis, Help!
You need to learn what these two laws - IDEA and 504 really say. If you
don't do this, you won't understand the differences between
these laws. You can get all the information you need from the Wrightslaw
site. (See the resources listed at the end of this article.)
Wrightslaw:
Special Education Law, 2nd Edition includes the IDEA and Section 504 statutes, regulations and commentary
about IDEA and Section 504.
Read the law and regulations about eligibility for special education
services. I can tell you what the laws say (and doesn't say) but you
need to read it for yourself.
Bottom
line: Kids who have a disability but are getting passing grades
can be eligible for special education services under IDEA.
If
you have a copy of Wrightslaw:
Special Education Law, 2nd Edition, you will find that the law does not mention grades.
The law does not say a child must fail before the school can
evaluate to determine if the child if the child is eligible for special
education services under the IDEA. According to IDEA, the child's parent
or school staff may request an evaluation.
BUT
if the principal or other administrator thinks the law says the school cannot evaluate
until after your child receives failing grades on her report card,
you need to know this.
You negotiate with the school on your daughter's behalf. When
you negotiate with school personnel, you need to understand their perceptions,
beliefs, interests and fears. The principal's perception about the laws is important information that will help you decide how to approach the
principal to resolve the problem.
Get
a Comprehensive Evaluation
You
need to get a comprehensive psychoeducational evaluation of your daughter
by a good child psychologist or educational diagnostician in the
private sector who specializes in diagnosing and treating children
with disabilities. Explain your situation to the evaluator.
A comprehensive evaluation will tell you what's going on with your child,
what she needs - and give you a roadmap for the future. Ask the evaluator
to make recommendations about what educational services and help your
daughter needs - and what will happen if the school does not provide
these services (i.e., her bipolar disorder may get worse, she may be
at risk for inpatient hospitalization, she may be more likely to drop
out of school, the failure to provide services will damage her).
After you get this evaluation (which is different from an independent
educational evaluation paid for by the school), you will have information
about your daughter's needs from an independent expert who is not acting
as a gatekeeper.
Get this evaluation BEFORE you request any additional services
from the school.
Many
school personnel view themselves as "child experts" and do
not believe parents know what their children need. When you have recommendations
from your evaluator, you can ask the school to provide these services.
If you anticipate that the school will resist, ask the evaluator to
attend a meeting with school personnel. The evaluator can to explain
the nature of your daughter's disability, answer questions, and educate
the educators. This will help you get "out of the loop" as
the expert on your child.
Strategies:
Dealing with Gatekeepers
The
principal may be acting as a gatekeeper. She may assume that if she
tells you that the school cannot evaluate until your daughter fails,
you will give up and go away. If you have read about who can request
an evaluation under IDEA, you know she is wrong.
If you force the issue and demand that the school evaluate your child,
the school evaluation is likely to find that she is not eligible for
any help - and that her problems are your fault!
Remember
what gatekeepers are supposed to do - the principal is doing her
job!
I know this is confusing and frustrating. When you watch your daughter
fail, you are afraid for her. She needs your support. Reassure her that
you believe in her.
If
you take these steps - read the laws and regulations so you know
what they say and do not say, get a comprehensive evaluation by an evaluator
in the private sector, and learn to deal with gatekeepers, it is more
likely that your daughter will get the help she needs.
Resources:
Section 504 and IDEA
Section
504 - the page has dozens of articles about rights and responsibilities
under Section 504.
IDEA
2004 - this page is about rights and responsibilities under IDEA
2004. The reauthorized law went into effect in July 2005.
IDEA 2004 Regulations - On August 3, 2006, the U. S. Department of Education published the IDEA 2004 regulations as two preambles (1244 pages), the regulations (374 pages), and five Appendices (90 pages) for a total of 1,705 pages.
All IDEA 2004 Regulations were reformatted and published on the Wrightslaw site. The reformatted regulations are 115 pages long (down from 374 pages). They are easier to read, print and study.
IDEA
2004 Regulations.
Resources: Advocacy
Good
special education services are individualized, intensive and expensive.
Schools often balk at providing intensive services. What
can you do?
You
need to use advocacy tactics and strategies to anticipate problems,
manage conflict, and avoid crises. If you have a dispute with the school,
tactics and strategy will help you control the outcome.
The Advocacy
page has links to dozens of articles, free books and newsletters
and other resources. Here are links to a few of these articles:
Crisis!
Emergency! Help! Learn how parents damage their credibility and
their child's case by assuming they must DO SOMETHING! If you are in
a crisis, this article is a "must read" for you, and for all
parents who want to avoid school crises.
My
Child's Test Scores Dropping, School Doesn't Care - What Can I Do?
Sue Whitney advises this parent, "You need a game plan. Before you
can devise a game plan, you need to gather information, manage your
emotions, and do your homework."
Parent
Advocacy: What You Should Do - and Not Do. Good advice from attorney
Leslie Margolis about steps parents can take to get quality educational
services for their children with disabilities.
Asking
the Right Questions. How does the school perceive you? Good
article about how to ask questions and get better services.
Assertiveness
and Effective Parent Advocacy. This short article by advocate
Marie Sherrett describes joys and challenges of parent advocacy. What
categories do you fall into?
From
Emotions to Advocacy - The Parents Journey. Strong emotions
cause parents to react, often with damaging results. If you are having
a problem with the school, use your head. Don't shoot yourself in the
foot!
Rev:
04/27/15
