In the kindergarten through grade 12 context, for students with disabilities, there are actually three laws to be aware of. Those laws are the Individual with Disabilities in Education Act (IDEA), § 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). IDEA is a law that demands a student with a disability obtain a free appropriate public education(FAPE). That law is extremely technical and has very specific eligibility requirements. It requires an individual education plan (IEP) and that plan needs to include performance measures and goals. It is much more narrowly focused than § 504, and therefore, a student could be eligible for § 504 services but not be eligible for IDEA services. That said, a person eligible for IDEA services would most certainly be covered under § 504. § 504 and the ADA are laws that we have discussed many times in this blog and they are designed to do something else, which is ensure that a person with a disability is able to get to the same starting line as everyone else. What happens if you have a person that asks out of or rejects an IEP, does that mean they have also waived any rights they have under §504 or under the ADA?

A case that answers this question is Kimble v. Douglas County School District _ F. Supp. 2d _, 2013 WL 659109 (D. Colorado, February 25, 2013). In this case, parents and guardians of a minor had an IEP with the school district. They were perfectly happy with an IEP. However, the next year, the school district wanted to change that IEP, and the parents were not willing to go along with the proposed changes. Accordingly, they refused to consent to the changed IEP. The school then sent her a letter saying that rejection of the IEP also meant rejection of any services under § 504 of the Rehabilitation Act. After receiving this rejection letter, the plaintiff submitted a written request to the defendant by email to develop a section 504 plan. However, the school said the 504 plan that they would offer would be the same as the proposed IEP and since the plaintiff refused to consent to the changed IEP that had been proposed by the school, she had waived her ability to obtain any § 504 relief. The plaintiff then filed suit alleging that the school’s conduct violated § 504 of the Rehabilitation Act as well as title II of the ADA.

The court first began by discussing the three different laws. As mentioned above, IDEA requires that all children with disabilities have access to a free appropriate public education. It does so through the use of the IEP, which is a written statement setting forth: the child’s present performance; the goals and objectives; specific services enabling the child to meet those goals; and evaluation criteria and procedures to determine whether the child has met the goals. A school district cannot implement an IEP without the informed consent of the parent. Where parents revoke consent for such services or do not give consent, the school district has to cease providing special education related services and is under no further obligation to develop an IEP for the child. That said, IDEA make perfectly clear that nothing in that law is meant to interfere with or limit the rights, procedures, and remedies under other laws including the Constitution, the ADA, and § 504 of the Rehabilitation Act among others.

The court went on to discuss § 504 of the Rehabilitation Act and noted that § 504 of the Rehabilitation Act is much broader than IDEA. While § 504 of the Rehabilitation Act with respect to students with disabilities in grades K-12 also contains free appropriate public education language, the meaning of that term is different than the meaning of the term under IDEA. The focus with § 504 of the Rehabilitation Act is on the design of a child’s educational programs so that the child with a disability has an educational program that is as adequate as the needs of a child without a disability (what I would call the starting line analogy). The court noted that the procedures for designing a free appropriate public education under § 504 of the Rehabilitation Act are more vague than they are under IDEA (I have found that this can cut two ways. On the one hand, IDEA give you all kinds of protections and formalities to observe. However, all those protections and formalities can make the process more adversarial. On the other hand, § 504 of the Rehabilitation Act is much more flexible than IDEA, which can be a disadvantage, but also its flexibility and vagueness can make the process less adversarial and more collaborative. Therefore, there can be a strategic decision as to whether a student should opt for IDEA or § 504 coverage, assuming the student is eligible for both, which as mentioned above may not be the case).

Finally, the court mentioned the ADA briefly. Obviously, we have seen quite a bit of the ADA in this blog. The court mentions the ADA to say that the courts analyze title II of the ADA and § 504 the Rehabilitation Act claims the same because the substantive standards are the same (from this blog, we know that this isn’t exactly true, but nevertheless the courts continue to make this statement in their cases).

Once the laws were discussed, the court turned to the claims. With respect to that, the court said since IDEA as well as its implementing regulations specifically say that they are not meant to interfere with the rights given to students with disabilities under other laws, including the ADA and the Rehabilitation Act, a waiver of one law does not waive rights given under the other laws. This sounds good for the plaintiff. However, the school held a section 504 meaning subsequent to the plaintiff’s rejection of the IEP under IDEA, and at that section 504 meeting, a § 504 plan was proposed that was identical to the rejected IEP. Accordingly, the plaintiff’s rejected the 504 plan as well. Accordingly, the rejection of the 504 plan put the school district off the hook.

What is to prevent a school district from offering an IEP they know the parents will reject and then offering the same IEP in a subsequent 504 meeting knowing that the parents will reject that as well as a strategy for not having to provide services at all. Certainly, it is a strategy that the school district could try. However, the court did mention that there might be two checks on whether that strategy would prevail. First, if the plaintiff could show that the strategy was based on discriminatory intent, the strategy would fail. Second, since the laws are different, a school district is still under a continuing obligation under § 504 as well as the ADA to protect the student from discrimination while the student remains a qualified student with a disability. Accordingly, the school district has to offer and continue to offer, despite any rejection of an IEP or a § 504 plan, any accommodations or services ensuring that the student is provided an opportunity for free appropriate public education under § 504.

Breaking it down: First, this case tells us that a waiver under idea is neither a waiver under the ADA nor a waiver under § 504 of the Rehabilitation Act. Second, a parent perfectly has the right to reject an IEP that they do not believe is appropriate. That rejection will prevent services under IDEA. However, that rejection would not prevent services under the broader law of § 504 of the Rehabilitation Act, or for that matter the ADA as well. If the school were to offer the same rejected IEP as the § 504 plan, the parent would be free to reject that also. However, in that eventuality, the school would be off the hook, unless either of two exceptions apply. The two exceptions being if the plaintiff could show that the offering of the § 504 plan identical to the rejected IEP plan was based on discriminatory intent, then the school would have a problem. The other exception being if the school refused to provide any § 504 services whatsoever regardless of whether the student was eligible for those services once the § 504 plans had also been rejected. In short, what this comes down to is should a parent reject an IEP, there is a fallback to § 504 planning. Should the § 504 planning process also break down, because the school district is under a continuing obligation, the parent should continue to try and negotiate some sort of plan so that the child can continue to receive § 504 services. On the school district side, there are many different approaches you can take. First, the school system might start the person in a § 504 plan and then depending upon how it goes move that person into the IDEA framework should the student be eligible for IDEA. If the student is in the IDEA framework already, the school should be in a negotiation process with the parent. If that process breaks down, then the student would drop into §504 planning. As a preventive law measure, one wonders why the § 504 plan would have to be the same as a rejected IEP plan. It would seem that many problems could be prevented if a whole new negotiation process was opened up and the parties reached a mutual conclusion as to what should be in the § 504 plan. It would be to the school’s advantage to have a working § 504 plan in such a situation as § 504, which the court noted above, while more vague is also more flexible than IDEA. Should somehow there be no alternative but to offer the same rejected IEP as a § 504 plan, the school would need to be prepared to make sure that it is showing that parent that it continues to act even after the rejection in accordance with its continuing obligations to offer free appropriate public education, as § 504 defines it, to the student.

8 Responses to If you waive one law, do you waive others? Intersection of IDEA, § 504, and the ADA

LOL ! way back when,1986 to be precise,within NYC,the Bd of ED demanded that I sign an IEP for my then 5 year old son with autism and alleged “MR” that I was NOT in agreement with and had no school or address of the school ON IT–but they knew busing was required.
They threatned me repeatedly with CPS on their grounds of negligence and abuse ,all due to NOT agreeing with their assessment and placement and my refusal to sign basically a blank paper,and NO school assigned so I was also promoting truancy.
These people should consider themselves fortunate that they did not go through what I did.

However I do understand YOUR point and most definitely believe you also know how these systems operate and one must NEVER disagree with them and their policies as this would make more work for them and their quadruplicate paperwork and of course,THEY ARE the experts .

Glad you visited the blog and welcome! I am not sure that I would agree that you must never disagree with them and their policies. I do agree that any disagreement needs to be done within a very structured framework. Also, I am seeing that it is not unusual for schools to have a difference in the way they approach individuals disabilities education act matters (more adversarial) v. § 504 matters (less adversarial) with respect to the adversarial process.

Okay, so if a child is severely-multiply impaired and has had an IEP that the -parents no longer agree with, they can withdraw consent to the provision of special education pursuant to the IDEA and request an evaluation pursuant to Section 504 and Title II of the ADA?

Yes this is correct. However, the philosophy of IDEA and § 504 are very different from each other. Accordingly, it is entirely possible that services you would get by way of IDEA would not be available under § 504, though you could certainly try.

Hi! Interesting article…

With regard to IDEA-eligible students whose parents do not want their child to have an IEP… My understanding has always been that parents cannot “pick and choose” how services are implemented under the IDEA. The OCR explicitly states, “If a student is eligible for services under both the IDEA and Section 504, he or she must have an IEP.” (https://www2.ed.gov/about/offices/list/ocr/504faq.html#safeguards) I have interpreted this to mean that if a student is found to be disabled under the IDEA, s/he must have an IEP.

And then, if the parent does not consent to initial placement/services under the IDEA after the student has been found eligible, how does OCR guidance through Letter to McKethan, 25 IDELR 295 (OCR 1996) and other court decisions such, as the 2012 Lamkin v. Lone Jack C-6 School District, impact your response?

I’m in the 8th circuit – same as Lone Jack. In my state, we operate under the understanding that a revocation of consent for services under the IDEA is also a revocation of consent to provide FAPE under Section 504. Would that student then only receive non-discrimination protections?

I appreciate your response!

Thanks for posting! You raise a very interesting question. I have read the Lamkin case and the OCR reference you gave me. I also reviewed my blog entry in Kimble. I was not able to locate the letter you reference, though Lamkin discusses it. I would love to see it if you have it handy. From what I have been able to read so far, in my opinion, Kimble is the better approach. Lamkin’s approach is fundamentally flawed because it assumes that a person with a §504 plan would have exactly the same plan as if they had an IEP. That is false. The two laws do completely different things, and as such I would not expect an IEP and a §504 plan to be identical. IDEA focuses on goals and having the student meet those goals. It should be noted that the obligation of the school districts have now changed since Endrew, which we have discussed in our blog. On the other hand, §504 focuses on making the reasonable modifications to get the student to the same starting line and then seeing what the student can do. So, from where I sit, if the student is simply one that is not going to be able to get to the same starting line with reasonable modifications and they are otherwise IDEA eligible, I would opt for the IEP. If reasonable modifications would get the student to the same starting line, then I would opt for the §504 plan. I don’t see why a §504 plan could not include many of the things that are in an IEP, but whether the school would have to provide those things under title II of the ADA or §504 would depend upon whether an undue burden or fundamental alteration could be claimed. Lamkin was also decided before Fry, which we have also discussed in our blog, and so Lamkin’s analysis of exhaustion is now dated. Since a parent have to consent to an IEP, I don’t see how they can be required to have an IEP if they don’t want one and desire a §504 plan instead. That said, it is possible that they might not be able to get things from the IEP process put into the §504 plan, though if those things would get the student to the same starting line absent an undue burden or fundamental alteration, it would certainly make sense to try if you are representing the plaintiff. What gets into the §504 plan is ultimately the result of a negotiation.

Would love to hear the views of an attorney practicing special education law to see what he or she thinks.

If a parent revokes consent for an IEP and special Ed under IDEA, and the child gets suspended because they do something that is probably a manifestation of their disability, are they protected by IDEA and/or 504 law? I believe IDEA says that an unclassified student already identified as a student with a disability by the school is still entitled to a manifestation determination review. If the student was once classified and now isn’t due to revocation, it seems like they should still be considered a student with a disability because they were previously known to the school as such. In this case, does the law address whether they still entitled to an MD or similar consideration of their disability before they can be suspended or expelled?

As readers of my blog know, there is scarcely an area of the law that the ADA does not impact on. That said, many times other laws are involved and not the ADA. This particular question would need the expertise of an attorney that focuses on IDEA in a way that goes beyond just how IDEA and the ADA overlap. This may be one of the situations where the legal protections would differ depending upon whether you are involved with the IDEA or with § 504. A lawyer focused on special education might be well able to figure this out.

Leave a Reply

Your email address will not be published. Required fields are marked *