October 8

The 504/IEP Difference

This is going to be a very quick breakdown of the difference between Individualized Education Programs (“IEP”) and 504 Plans. These are two different types of documents arising out of two distinct statutes and either can be appropriate, depending on a child’s needs.

An IEP is a “written statement” provided to a student who qualifies for protection under the Individuals with Disabilities in Education Act (“IDEA”). Students entitled to protection are those who have a) been evaluated and b)found to have certain disabilities and c) who require special education as a result of the disabilities. There are exhaustive requirements for IEPs. For example, they must be in place before the beginning of the school year, they must be reviewed annually, they must include goals arrived at in a meeting between parents, the child’s teachers and certain school administrators and students with IEPs MUST be reevaluated every three years. A student is also entitled to reevaluation if an issue arises or if declassification is being considered. IEPs are highly regulated by both the State and Federal governments as part of the grant of federal funds to states under the IDEA. The IDEA also affords specific remedies, like private school tuition reimbursement and compensatory education.

504 plans are provided to students who qualify for protection under Section 504 of the Rehabilitation act of 1973. The trigger for protection under that act is a disability that limits a “major life activity” and learning is considered a major life activity. Students can be provided with related services and accommodations under 504 plans, and this is probably a source for confusion. However, 504 plans differ from IEPs chiefly in the rights that they do NOT include. Students with 504 plans are not entitled to triennial evaluations and there is no tracking of progress in a 504 plan, since goals are not required to be in a 504 plan. There is no state oversight of 504 plans. 504 also does not afford the same remedies as the IDEA, i.e. private school tuition reimbursement or compensatory education.

There may well be circumstances where a 504 plan is sufficient. A student may merely need extended time testing, or food at a certain hour to respond to a medical need. (Though not to confuse you completely, there is case law holding that certain medical assistance can be considered a related service under the IDEA – but for we’re just addressing the basics here). Other students need to have an instrument that creates a higher level of accountability. In those cases, an IEP is probably the preferable document. However, and as always, each case, like each child and each family, is unique.

October 5

It’s about empowering parents

Special education law is the one area where I have found scholarly articles to be attention grabbers. Here is an excerpt from my article, “Considering the Individualized Education Program: A Call for Applying Contract Theory to an Essential Legal Document” that appeared in the Winter, 2013 issue of the C.U.N.Y. Law Review:
The IDEA has revolutionized the way children with disabilities are educated in the United States. A unique statutory scheme requiring public schools to open their doors to children with disabilities, the IDEA rejected a one-size-fits-all concept of education and armed families with an unprecedented right to an education. Public schools would be required to figure out how to educate students with a myriad of differences through classroom accommodations, services and supports in the “least restrictive environment.” The Act seeks to empower the weakest parties in the administrative process: children with disabilities and their parents. The primacy of this value is explicit in the precatory section of the current IDEA, which states that “[a]lmost 30 years of research and experience ha[ve] demonstrated that the education of children with disabilities can be made more effective by . . . strengthening the role and responsibilities of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” The IDEA has had massive, positive social impact. Opening schools to people of various abilities has profoundly impacted society, making disability “a normal part of the broad range of human experience and personality.” People who would have been hidden away from society in the 1970s are seen in schools, the economic workforce, and even in popular culture.
For those parents who have had to advocate for their children, however, the process often remains daunting, overwhelming and exhausting. IEP formulation meetings are often fraught with tension. Parents are faced with the challenge of absorbing a tremendous amount of information; they need to learn about their children’s disability, educational methodology, and the law. The balance of resources and information greatly favors school administrators over parents. IEP formulation meetings often involve a lone parent facing a table of teachers and administrators in a meeting that is supposed to be collaborative, but is more often intimidating and tense. My own experience advocating for my child from 2010 to 2012 is reflective of this opinion. I spent several years advocating in a public school system on behalf of a child who is gifted but dogged by non-visible, brain-based disabilities. It was unpleasant, aggravating and tiring for everyone involved. It fell to me to tell the school district how to work with my child. I also met individually with teachers to discuss the disabilities at issue. My impression was that they had no understanding whatsoever of the disabilities identified in the IEP which, being extremely charitable, I will assume they read—and this was in a small, affluent school district. I wish I could say that my experience was unique, but it wasn’t—and isn’t. In the end, faults in the system fortuitously led to a better situation for my child when the district permitted her to leave early to attend college. I do hope that my efforts at that particular school have led to positive improvements to the benefit of all of the students there. I must also refer to the acknowledgment of similar experience in the works of David M. Engel, supra note 4, at 187–89, and Martin A. Kotler, supra note 4, both of which were written over twenty years ago.

September 17

Welcome!

Welcome! I am Bonnie Spiro Schinagle. Here is what I wrote in an article that just appeared in the C.U.N.Y. Law Review, published by the City University of New York School of Law:

Both Section 504 and the IDEA have had massive, positive social impact….

That reflection resulted from personal experience. Perhaps you can relate. I am extremely proud of all of the expertise I have gained through a combination of scholarship and experience, but am also honored to serve my clients. I am a special education lawyer. I am proud of what I do. I look forward to helping families in New York secure justice for their children and to continuing in my contributions to the area of special education law. Welcome to Schinagle Law.

This website is ATTORNEY ADVERTISING. The website is designed for general information only and should not be construed as legal advice or formation of a client/attorney relationship. No outcome is guaranteed, as results vary in each case.
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