The IDEA is one of several Federal Laws that governs special education programs in the United States.[1] IDEA provides and promotes funding for state and local educational agencies to meet their obligations for students impacted with learning, cognitive, or physical disabilities. One of the principle goals in IDEA is for students, regardless of their disabilities, to receive a free appropriate education.[2] The other objective of IDEA is for parents to be provided a distinctive voice in their child’s education.[3] Inclusive of these two objectives, the IDEA provides certain safeguards to parents and students to ensure parents’ input into the educational process.

[1] 20 U.S.C.A. § 1400 et seq.

[2] 20 U.S.C.A. § 1412(a)(1).

[3] 20 U.S.C.A. § 1414

Yes, IDEA requires that state or local education agencies evaluate students who may be protected under IDEA.[1] Either a parent or the appropriate educational agency can request the evaluation.[2] If the initial evaluation is requested by the school, the school district, or the local or state educational agency, one of the parents must consent.[3]

[1] 20 U.S.C.A. § 1414(a)(1)(A).

[2] 20 U.S.C.A. § 1414(a)(1)(B).

[3] 20 U.S.C.A. § 1414(a)(1)(D)

If the initial evaluation is requested by the school, the school district, or the local or state educational agency, one of the child’s parents must consent.[1]

[1] 20 U.S.C.A. § 1414(a)(1)(D)

Within 15 days of the beginning of the Initial Evaluation the school district must provide written notice to a parent of its proposal to conduct the evaluation or the school district’s written notice of refusal to conduct the initial evaluation.[1] This notice is not optional; regardless of the decision of the School District, the notice must be provided within 15 days.[2]

[1] 19 Tex. Admin. Code § 89.1011(b)

[2] 19 Tex. Admin. Code § 89.1011(b)

The written Notice must provide a minimum of the following:

1. A description of the action proposed or refused by the agency;
2. An explanation of why the agency proposes or refuses to take the action;
3. A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
4. A statement that the parents of a child with a disability have protection under the procedural safeguards of IDEA and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
5. Sources for parents to contact to obtain assistance in understanding the relevant of IDEA;
6. A description of other options that the IEP Team considered and the reasons why those options were rejected; and
7. A description of other factors that are relevant to the agency’s proposal or refusal.[1]

[1] 34 CFR 300.503(b)

The evaluation is to determine what needs the child has during the educational process and how to accommodate those needs.[1] During the evaluation, the child will be tested with an array of measures to ensure that no sole factor will be determinative of that students’ cognitive, behavioral, physical, or developmental abilities.[2] Parents should ask questions during and prior to this process; the process is there to provide solutions and determine how best to help their child.

[1] 34 CFR 300.304(b).

[2] 34 CFR 300.304(b);

See also prntexas.org/PRN-factsheets/

After the notice is provided to the parents, the school must generally conduct the initial evaluation and provide a written report within 45 school days from when the school receives the parent’s consent.[1] If the parental consent is received close to the end of the school year, within 35 to 45 days of the last day of school, the school has until June 30 of that year to evaluate and prepare the written report.[2] A similar extension applies if the student is absent from school for 3 or more days during the period of time the school has to conduct the initial evaluation.[3] In such a case, the school has the same amount of extra days as the student was absent.[4]

[1] 19 Tex. Admin. Code § 89.1011(c).

[2] 19 Tex. Admin. Code § 89.1011(d).

[3] 19 Tex. Admin. Code § 89.1011(c).

[4] 19 Tex. Admin. Code § 89.1011(c).

The Evaluation is to be provided by the School District.[1]

[1] 34 CFR 300.502(b)

In the event the parent is dissatisfied with the evaluation, the School District shall provide a list of independent evaluators, whose independent evaluation shall be at the District’s expense.[1]

[1] 34 CFR 300.502(b)

Not later than 30 days after the evaluation, the parents and the school must meet and determine what, if any, plans to assist the student are necessary; this is called the Individualized Education Plan (“IEP”).[1] The school is required to make every reasonable assurance that one or both parents can attend this meeting. Special accommodations for this meeting can include telephone conferences, video conferencing, or arranging the meeting at a time and place to work around the parents’ work schedule.[2] The school district’s accommodations should also include translations, if one or more of the parents do not speak English natively.[3]

[1] 34 CFR 300.320.

[2] 19 Tex. Admin. Code § 89.1050(d).

[3] 19 Tex. Admin. Code § 89.1050(f).

This is the plan for how to ensure that the child receives the benefits of a public education. The IEP should coordinate the child’s needs, including where he or she is academically, developmentally, and functionally,[1] how the child’s current needs and strengths can be appropriately addressed,[2] what activities will or will not be appropriate or not for the child, what goals the parents and school should set for the child, how to evaluate those goals on a periodic, including yearly basis,[3] what modifications and personnel the school will provide to ensure the child accomplishes those goals, and the estimated beginning date for implementing those goals.[4] This plan should be accomplished through the least restrictive environment possible.[5] That is, the child should remain with his peers, and utilize the same institutions, classrooms, and facilities to ensure the Child receives an appropriate education.

[1]  34 CFR 300.320(a)(1).

[2] 34 CFR 300.320(a)(1)(i)

[3] 34 CFR 300.320(a)(2)

[4] 34 CFR 300.320(a)(7)

[5] 34 CFR 300.114

The Texas Education Agency provides a sample IEP form to assist in the preparation and guidance through the meeting. In addition, PRNTexas.org has a preparation sheet to ensure that parents have questions ready, and can be their child’s best advocate.

Yes, each year the school must review the IEP with the parent to determine if the goals are being met, and if any revision is necessary.[1] Though preferable, the parents and school can amend the IEP without a meeting, however, the revisions must be in writing to be effectively implemented and enforced.

[1] 34 CFR 300.320(b)

In addition to the mandates provided by the IDEA, Texas provides additional assurances that students with disabilities, both mainstream and homebound students, will be provided an educational plan that provides for their needs.

Mainstream children with disabilities are classified as those who can remain in the regular classrooms while receiving sufficient educational assistance. Texas requires qualified special educational personnel take part in the implementation of the IEP through direct or indirect support services to the student or the student’s teacher to enable the student’s success in the classroom.^[1] Examples of this direct or indirect support services are co-teaching, providing teachers’ aides, positive classroom behavioral interventions, consultations with the students or reducing the ratio of students to teachers.

[1] TAC §89.63

Homebound students are classified as those students who are unable to attend a regular classroom for a period of at least four weeks. The need for homebound support must be documented by a physician. The services that can be provided to homebound students include, but are not limited to, hospital classes substituting for regular classroom education; speech therapy; residential care; and state supported living centers.^[1]

[1] TAC §89.63

Texas law requires students receiving special education in 9^th-12^th grade to demonstrate mastery of certain state standards, completion of the foundational high school program, and satisfactory performance in the required state assessments unless the admission, review, and dismissal committee determines that satisfactory performance is not necessary.^[1]

In the alternative, if the foundation high school program contains any modified coursework, then the student must complete his or her IEP and demonstrate one of the following: the student has received full time employment based upon the student’s abilities and local employment opportunities, in addition to mastering self-help skills; the student has demonstrated a mastery of specific employability and self-help skills that do not require ongoing support of the school district; the student has access to services that are not within the responsibility of the public education or has employment or educational options for which the student has been prepared for; or the student has aged out of the program (reached 21).^[2]

[1] TAC §89.1070 and TAC §74.12 (Describing the Foundation High School Program).

[2] TAC §89.1070.

The law applies to public elementary and secondary schools, among other entities receiving federal financial assistance.

To be covered under Section 504, a student must be “qualified” and must have a “disability.”

To be a “qualified” student, this means the student must be between 3 and 22 years of age, depending on the program, as well as state and federal law, and must have a disability.[1]

[1] See 34 C.F.R. §104.3(k)(2)

An individual with a disability is defined as: “any person who: (i) has a mental or physical impairment that substantially limits one or more major life activity; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.”[1]

Determining whether a student has a mental or physical impairment that substantially limits a major life activity must be made on a case by case basis. Additionally, when making the determination of whether a person meets the definition of a disability, the definition must be understood to provide broad coverage of individuals.

[1] See 34 C.F.R. §103.3(j)(1)

Under Section 504, an impairment may include any disability, long-term illness, or various disorder that “substantially” reduces or lessens a student’s ability to access learning in the educational setting due to a learning, behavior, or health-related condition. This definition can include physiological disorders or conditions, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes mental or psychological disorders. Due to the difficulty of ensuring completeness, the definition does not include all specific diseases and conditions that may be mental or physical impairments.

Major life activities include major life functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Further, “major bodily functions” can also be considered major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.[1] This is not an exhaustive list and each child’s situation must be assessed on a case by case basis.

[1] See 42 U.S.C. 12012(4)(a)(2)(B)

Students that are currently using illegal drugs are not covered under Section 504.  Students that are currently using alcohol are eligible.  However, Section 504 allows schools to take disciplinary action against students using alcohol or drugs to the same extent as students without disabilities.

The federal regulations do not define substantially limits, but a letter from the Office for Civil Rights (OCR) states, “this is a determination to be made by each local school district and depends on the nature and severity of the person’s disabling condition.” Guidance from the Americans with Disabilities Amendment Act states that Section 504 standards must conform to the ADA and is “intended to afford a broad scope of protection to eligible persons.” Thus, in considering substantial limitations, students must be measured against non-disabled peers that are the same age in the general population and without the benefit of medication or other mitigating measures such as adaptive neurological modifications, assistive technology or accommodations.

The Section 504 regulatory provision at 34 C.F.R.104.35 (c) requires that a group of knowledgeable persons draw upon information from a variety of sources in making this determination.

A temporary impairment is not a disability for the purposes of Section 504 unless its severity is one that results in a substantial limitation of one or more major life activities for an extended time period. This determination must be resolved on a case-by-case basis and must take into consideration both the duration of the impairment or its expected duration and the extent to which it limits the major life activity of the individual.

School districts must establish and implement procedural safeguards that include (1) notice, (2) an opportunity for parents to review relevant records, (3) an impartial hearing with the opportunity for participation by the child’s parents/guardian, where the parents/guardian may be represented by counsel, and (4) a review procedure. Each school district often has specific special education parent rights under Section 504.

Although anyone can refer a child for evaluation under Section 504, the Office for Civil Rights requires that a school refer as student for evaluation if the student, because of disability, needs or is believed to need services under Section 504. A school district is not required to refer or evaluate a child under Section 504 solely at a parent’s demand. If the school district declines a referral request from a parent, the school must provide the parent with notice of the parent’s procedural rights under Section 504.

A parent/guardian must give written consent for an initial Section 504 placement.

Once a referral is made under Section 504 and consent is received from the parent/guardian, school districts must conduct an evaluation in a timely manner of any student who needs or is believed to need special education or related services due to a disability.[1]

[1] See 34 C.F.R. §104.35(a)

If the school determines that there is a reason to believe that a student needs accommodation to the general educational environment in order to allow him or her to have equally effective participation in the school program, the school must notify the parent of the child and promptly evaluate the child.  This process occurs through the Early Intervening Team (EIT) process. Each school should have this team in place.

The EIT generally consists of a core group including the school principal or other administrator, the referring teacher or general education teacher, school counselor, and parents of the child. The team must be familiar with the child in question. Each school will have its own format for the team and the title of the Team may differ from school district to school district.

School districts may use the same evaluation process as they use under the IDEA. Some schools may choose to adopt a different evaluation process. If so, the school must follow the requirements for evaluation as specified in Section 504 regulatory provision 34 C.F.R. § 104.35(a) – (b). The “evaluation and placement” provisions require standards and procedures for the evaluation which ensure:

1. Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
2. Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
3. Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with § 104.34.[1]

[1] See 34 C.F.R. §104.35(c)

The team will develop the Section 504 Plan based on the evaluation results, the Section 504 identification determination, the child’s unmet needs, services and/or accommodations based on needs, the least restrictive environment for services; additionally, the team may discuss the need for possible staff training.  The Team will make decisions regarding the necessary services and/or accommodations to allow for the child’s disability.  Further, the Team will also consult with the parents/guardians of the child and give them the opportunity to provide additional input regarding the accommodations. Once the plan is developed it will be documented and the school will generally designate a Section 504 case manager to coordinate the child.

Yes, periodic reevaluations of the child is required.[1] This may be conducted in accordance with the IDEA regulations, which require reevaluation at three-year intervals or more frequently if conditions warrant, or if the child’s parent or teacher requests a reevaluation, but not more than once a year unless both the parent and school district agree otherwise.

[1] 34 C.F.R. §104.35(d)

If the school has 15 or more employees and receives federal funding under Section 504, the school must do the following:

1. Provide written assurance of nondiscrimination whenever the school receives federal money under Section 504.[1]
2. Designate at least one person to coordinate its efforts to comply with Section 504.[2]
3. Adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504.[3]
4. Take appropriate initial and continuing steps to notify students and parents that the school does not discriminate on the basis of disability. The notification shall identify the designated person for coordinating compliance. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, placement of notices in recipients’ publication, and distribution of memoranda or other written communications.[4]
5. Annually undertake to identify and locate qualified children with disabilities within their jurisdiction who are not receiving a public education.[5]
6. Annually notify persons with disabilities and their parents/guardians of the school’s responsibilities under Section 504 to identify and locate qualified children with a disability who are not receiving a public education.[6]
7. Establish and implement a system of procedural safeguards, including:
   1. Notice of rights to parents and students;
   2. An opportunity for parents/guardians to review relevant records;
   3. An impartial hearing with opportunity for participation by the child’s parents/guardian and representation by counsel;
   4. Review procedures. One way to meet this requirement is compliance with the procedural safeguards under the IDEA.[7]
8. Conduct a self-evaluation of the school facilities, programs, and policies to ensure that discrimination is not taking place. Conduct a self-evaluation with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, your current policies and practices and the effects thereof that do not or may not meet the requirements of Section 504 federal regulations. If needed, modify any policies and practices that do not meet the requirements of federal regulations and take remedial steps to eliminate the effects of any discrimination that resulted from adherence to your policies or practices. Be sure to consult with interested persons, including handicapped persons or organizations representing handicapped persons, when modifying policies and practices and taking remedial measures.[8]

This above list is not exhaustive, and it is important to review Section 504 and the relevant federal regulations to ensure compliance. Always consult with legal counsel to ensure your school is fully compliant.

[1] 34 C.F.R. §104.5(a)

[2] 34 C.F.R. §104.7(a)

[3] See 34 C.F.R. §104.7(b)

[4] See 34 C.F.R. §104.8

[5] See 34 C.F.R. §104.32(a)

[6] See 34 C.F.R. §104.32(b)

[7] See 34 C.F.R. §104.36

[8] See 34 C.F.R. §104.6(c)

Section 504 requires a school district to provide a “free appropriate public education” (FAPE) to each qualified person with a disability who is in the school district’s jurisdiction, regardless of the severity of the disability. In general, all school-aged children who are individuals with disabilities as defined under Section 504 and IDEA are entitled to FAPE.

A free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of FAPE, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of FAPE[1].

[1] 34 C.F.R. §104.33 (a)

An appropriate education is the provision of regular or special education and related aids and services that are (1) designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and (2) are based upon adherence to procedures that satisfy the requirements of FAPE and Section 504.[1] Appropriate education may include regular or special education and related aids and services to accommodate the specific needs of a child with disabilities. To the maximum extent possible, students with disabilities should be in the same setting as students without disabilities.  This includes classroom, meals, recess, and physical education. One way to ensure programs meet the individual needs of the child, is to develop Individualized Education Programs (IEP) for each child with a disability. IEPs are required when schools receive funding under IDEA.

[1] 34 C.F.R. §104.33

If the public school cannot adequately provide the child with the disability a free appropriate education, the school may place the child in or refer the child to a program other than one it operates. The school still remains responsible for ensuring the education offered is an appropriate education as defined by law and is also responsible for the costs associated with the placement.[1] The school must also provide transportation to and from the aid, benefits, or services at no greater cost than would be incurred if the child were placed in the aid, benefits, or services operated by the school.[2] See 34 C.F.R. § 104.33(c)(2).

[1] See C.F.R. §104.33(b)

[2] See 34 C.F.R. §104.33(c)(2)

No, if the parents/guardians of the child elect to place the child in a private school after the public school has made available a proper free appropriate education in compliance with the federal regulations, the school is not required to pay for the person’s education in the private school.[1] Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or otherwise regarding the question of financial responsibility are subject to the due process procedural safeguards.[2]

[1] See 34 C.F.R. §104.33(c)(4)

[2] See 34 C.F.R. §104.33(c)(4)

The ADA is similar to Section 504 as it is a civil rights legislation for individuals with disabilities. The ADA is a federal law that makes it illegal to discriminate against a person with a physical or mental impairment which substantially limits the child’s ability to care for himself or herself, perform manual tasks, or engage in any other “major life activity,” such as walking, seeing, hearing, speaking, breathing, or learning, in an age-appropriate manner.

The ADA is much broader than Section 504 as it applies to almost every entity in the country, regardless of whether it receives federal funding. Churches and private clubs are exempt from the ADA. Private schools not affiliated with a religious organization must comply with the ADA but may not have to comply with Section 504 because they do not receive federal funding.

Each child not automatically covered by ADA requires an individualized assessment to determine if he or she is substantially impaired in one or more major life activities.  For example, the following children might be considered a child with a disability under ADA: a child with autism, learning disorder, ADHD, cerebral palsy, severe food allergies, diabetes, or a mental or emotional illness.

Four categories of people are protected under ADA from discrimination on the basis of disability:

1. People with a physical or mental impairment which substantially limits one or more major life activities;
2. People with a history of a physical or mental impairment which substantially limits one or more major life activities. For example, this protection may include a child with a history of seizures;
3. People who are regarded as having a physical or mental impairment which substantially limits one or more major life activities. For instance, if the child’s teacher believes the child has a learning issues, then ADA would be applicable; and/or

People and/or entities associated with people who have a physical or mental impairment which substantially limits one or more major life activities.

ARD means the admission, review, and dismissal (ARD) committee. Texas law adds ARD to the IEP process.

This ARD Committee must include the following:

1. Parents;
2. At least one regular education teacher of the student;
3. At least one special education teacher of the student;
4. A representative of the school district who is qualified to provide or supervise students with disabilities, is knowledgeable about general education curriculums, and is knowledgeable about the availability of the resources of the school district;
5. An individual able to interpret instructional evaluation results;
6. At the discretion of the parents or the school district someone who has knowledge or expertise regarding the student and related services personnel;
7. Where appropriate, the student themselves;
8. Where appropriate, a representative from the agency that will provide any transitional services;
9. Where appropriate, a representative from CTE; and
10. A professional staff member that is responsible for language proficiency assessments.^[1] In addition, if the student has any suspicion or documentation related to visual or auditory impairments, the ARD must have a teacher certified in the education of students with visual or auditory impairments.

[1] TAC § 89.1050

The purpose of the ARD committee is to support the drafting of the IEP for the student and parents, the committee should work together as a collaborative group to further the goal of providing the student the best path to a successful education.

With support from the federal government, students in middle and high school can begin receiving coursework that directs them to learn certain skills for career or technical placement after graduation. Career and technical education courses are typically critical in the graduation of many students in special education and benefit the student in the student or family’s post-graduation goals.

Yes, Texas provides extended school year services (ESY).  Whether the student needs the ESY services is determined on a case by case basis by the ARD committee. The School District may not limit ESY services to categories of disabilities or unilaterally limit the type, amount, or duration of ESY services.^[1]

[1] TAC § 89.1065(1)

In order to receive ESY services, there must be either a formal or informal documented evaluation provided by the school district or the parents that demonstrate one or more critical areas under the IEP there has been significant regression that cannot be remedied in a reasonable period of time. That is the student must either be stalled in the current IEP or falling behind in the IEP.

Students with disabilities may be assessed with the regular state assessment, the State of Texas Assessments of Academic Readiness (STAAR), or the state may elect to develop an alternative state assessment for students with more severe cognitive disabilities. In Texas, we have the STAAR Alternate 2 for students receiving special education services that have significant cognitive disabilities. States electing to adopt the alternative assessment, must show the following:

1. The system is aligned with state academic standards.
2. The system promotes access to the general education curriculum.
3. The system reflects professional judgment as to the highest standards achievable by students with severe cognitive disabilities.

The system is designed to ensure any student meeting the alternative standards is on track to pursue postsecondary education or employment.

To allow as many students to participate in the regular state assessment, all states must provide accommodations for those students receiving accommodations under the IDEA. For example, if an IEP allows the student to have additional time to complete testing, the school may provide the same accommodation for STAAR testing.

States must set long term goals and measures of interim progress for all federally required accountability measures for students with disabilities. The accountability measures include proficiency on annual state assessment and four-year high school graduation rate.

States must ensure special education, general education teachers and other staff working with the students understand how to administer the alternative assessments and are able to provide the appropriate and necessary accommodations. The ESSA eliminates the federal requirement of “highly qualified teacher” and enables states to revert to its own teacher certification requirements to determine which teachers are qualified to teach specific content to students with disabilities.