Spring 2021

FOR IMMEDIATE RELEASE

The MLO Minute

While most special education matters are addressed under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (and often by analogy the Americans with Disabilities Act, the standards of which are related to those in Section 504) can offer even broader protections than the IDEA, especially for children whose disabilities do not fit into one of the defined categories of disability under IDEA. For example, Section 504 offers protections to students with disabilities, such as ADHD, asthma, and migraines, who may not fit into one of the specified categories for IDEA eligibility. In many cases, Section 504 can provide services for students with executive functioning or attention issues, and it can also include students who require significant accommodations, therapies, or interventions but do not require specially designed instruction – as required by IDEA – in order to make meaningful educational progress.

 

In a significant case, the United States District Court in Philadelphia recently assessed the program of a child eligible for services under Section 504. E.P. v. Twin Valley School District, ___ F.Supp.3d ___, 2021 WL 365878 (E.D.Pa. Feb. 3, 2021) (Rice, M.J., sitting as District Court by consent under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73). In this landmark opinion, which acts as appellate precedent in the administrative realm of special education due process proceedings, the court held that where a child with disabilities has not sufficiently learned to regulate emotions including outside of school, this deficit can reflect a failure of the district to provide an appropriate program under Section 504.

 

The decision is particularly noteworthy, since school districts and charter schools routinely argue that behavior outside of school is neither the responsibility of the special education program nor a reflection upon the efficacy and appropriateness of that program.  Judge Rice’s opinion provides a clear basis under both Section 504 and IDEA (which are often interpreted concurrently) to reject claims that behavior outside of school is irrelevant in assessing school-district and charter-school programs. In a similar vein, the court noted that “interaction with others” is specifically a major life activity to be addressed, if necessary, under Section 504.

 

The court further explained that Section 504 can provide more protections to children with disabilities than IDEA in some respects, where necessary to provide a fully free and appropriate educational program (FAPE). The opinion articulated a very broad “child find” standard for public and charter schools to use in order to determine if a child is eligible for services under Section 504.

 

The court also determined that the statute of limitations under Section 504, within which a parent must bring a claim, begins with the date of the family’s discovery of the legal harm to the child. The date for commencing the statute is particularly important, as parents are often unaware of the inappropriateness of an educational program until well after that program is written and delivered. The benchmark date for the statute of limitations identifies the timeframe for determining the level of compensatory education which might be owed to a student for a school district’s (or charter school’s) failure to provide FAPE.

 

Finally, and significantly, the court approved a process by which an independent evaluator — and not the public or charter school in question — decides the amount and scope of compensatory education owed to a child who has been denied FAPE.

 

Henry Young of our Wyomissing office tried this groundbreaking due process hearing with Michele Ford’s pre-trial support, and John Goldsborough prepared our briefs. This opinion provides many helpful and important statements that can be used on behalf of the students and families we serve, especially those who do not qualify for services under IDEA. Our initial special education consultations are free, and in most instances, we are able to handle cases on behalf of families without a retainer or payment of our hourly fees, as both IDEA and Section 504 are fee-shifting statutes, with school districts or charter schools often being responsible for payment of fees when the parent prevails.