of this training
training can be conducted in several ways.
It may be used as an introduction and comparison between IDEA and Section
504, without going into detail about specific requirements of IEPs, inclusion,
State Code, etc. It may be used as
a comparison between IDEA and Section 504, focusing in on specific areas like
IEP process, content, and placement issues.
It may also be used as an outline/overview of IDEA, Section 504 and the
NJ State Special Education Code. This
third approach adds information about procedural safeguards, timelines, and
processes specific to New Jersey, although it is not a comprehensive overview of
the State Code. Finally, you may
also address issues of discipline and positive behavior supports with the
materials you will disseminate for this training depends on which of the above
approaches you select. If you are
using this only as an IDEA/504 comparison, you
504 packet & brochure
Code information packet
504 articles from The Special Educator
Policy Paper from US Department of Education
& Field Trip Letter from Barbara Gantwerk
you will also go into more detail about the IEP process, also include
you will also discuss specific State
Safeguards for Families Under the New IDEA/State Code
if you will use IDEA/504 as a springboard to discuss discipline and positive behavior
any case, you will want to include and discuss the three scenarios in your
504 predates IDEA, and is the first federal legislation to prohibit
discrimination based on disability. It
has broader coverage than simply education, prohibiting discrimination in
employment and public accommodations as well.
1997, IDEA did not prohibit discrimination
against students with disabilities, although it required the provision of a
“free, appropriate public education.” With
the 1997 reauthorization of IDEA, some non-discrimination provisions that had
only been in Section 504 (participation in extracurricular and nonacademic
activities were specifically included in IDEA.
Individuals with Disabilities Education Act and Section 504 are federal
statutes. If there is any
inconsistency between these federal statutes and state law or regulation, the
federal law rules. The state may
grant MORE rights to families and students than the federal law, but it may not
grant FEWER rights.
IDEA and Section 504 are very similar in their requirements, IDEA has more
specific protections than Section 504 for parents and students.
The differences in these two laws will be explained during the training.
discussing any law, there are five crucial questions that must be answered.
First, who must comply with, or obey, the law?
Second, who is the law intended to protect?
Third, what does the law require? Fourth,
what are the procedures for enforcing the law?
And fifth, what happens if the law is broken? We will address each of these questions in order during this
prohibits discrimination by recipients of federal dollars.
This includes public schools, private schools or charter schools that
receive federal financial assistance (textbooks, lunch, transportation) either
directly from the federal government or through the state government.
It also includes child care centers that receive federal or state
subsidies, before and after-school programs, municipal recreation programs, etc.
It prohibits discrimination in employment, education, and public
accommodations. It also prohibits
discrimination by colleges and universities that receive federal financial
to state education agencies (SEAs), local education agencies (LEAs), and any
entities with which the state or districts contract to fulfill their IDEA
obligations. It applies to
publicly-funded charter schools, private special education schools and
residential placements, and special services school districts, as well as the
Department of Human Services and Juvenile Justice education services for
students with disabilities.
The NJ State
Special Education Code applies to the New Jersey State Department of Education, districts, and
any other state or private agencies that contract to carry out the IDEA
obligations of the State Department of Education or school districts.
protects an individual who has, has had, or is perceived as having, a
physical or mental impairment which substantially limits one or more major life
activities, such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, or working, among
others. It protects students whose
disability limits their ability to attend, participate in, or receive benefit
from, their schooling. Section 504
protects individuals with disabilities from birth to death, but today we are
only talking about its coverage for students.
It includes individuals with a full range of disabilities far beyond
those covered by IDEA, and it also protects every student who is eligible for
include students with cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, diabetes, heart disease, HIV/AIDS, dyslexia, dysgraphia,
rheumatoid arthritis, ADD/ADHD, cystic fibrosis, severe allergies, and asthma.
Some students with these disabilities may be covered by IDEA, but only if
they meet the following criteria.
guarantees a free appropriate public education to children and youth from birth
to 21 who have a disability that affects their ability to learn and requires
special education and/or related services to benefit from their education.
It covers a specific group of disabilities, and if a child doesn’t have
one of those disabilities she is not eligible under IDEA even if the disability
affects her ability to learn. The
covered disabilities include mental retardation, hearing impairment,
speech/language disability, serious emotional disturbance, other health
impaired, autism, traumatic brain injury, learning disability, multiple
disabilities, deaf, blind, and deaf-blind.
circle here: inside circle is IDEA students, while outer circle and inner circle
are Section 504 students.]
The NJ State
Special Education Code must cover all students covered by IDEA. The most recent changes to the State Code revised definitions
of state-covered disabilities to make them comparable to the federal terms:
auditorily impaired, autistic, cognitively impaired, communication impaired,
emotionally disturbed, multiply disabled, orthopedically impaired, other health
impaired, specific learning disability (previously perceptually impaired),
traumatic brain injury, visually impaired, eligible for speech-language, and
preschool disabled. In addition,
the state special education code also covers students who are “socially
maladjusted.” There is no longer
a category of “neurologically impaired.”
IDEA and the State Code all require the provision of a “free, appropriate public education”
to all eligible students (FAPE in LRE). FAPE
in LRE includes:
Requirement to identify all
potentially eligible students/”child-find”.
This means that there must be ways for parents to refer their own
children as potentially eligible; teachers must understand their obligations to
identify and refer potentially eligible students; and administrators and others
who work with children must understand these obligations.
A decision must be made for each referred child as to whether or not an
evaluation will be conducted.
504, parents must be provided with annual notification of the
protections of Section 504, and how to access them. Parents should be receiving this notice as part of parent
guides, direct correspondence, or other means reasonably designed to ensure that
parents are aware of Section 504. Schools
decide whether or not an evaluation will be conducted and what the evaluation
will consist of, as well as who will conduct the evaluation.
and the State Code, each district must have written policies and
procedures in place to ensure that they identify each potentially eligible
child, even those children not in school or in private or religious schools.
Those policies and procedures must provide for parent referral and for
teacher/administrator referral, as well as referral by other agencies that work
with children. Districts must meet
with parents to decide whether or not a referred child will be evaluated. This meeting must occur within 20 calendar days of receipt of
the referral. If the district
wishes to evaluate, they must either obtain informed, written parental consent
to conduct an evaluation, or they must go to a hearing to demonstrate sufficient
evidence to justify an evaluation
b. Nondiscriminatory assessment and eligibility determination. Once it’s determined that there will be an assessment, a
decision must be made about what the assessment(s) will consist of; and after
the assessment(s), whether or not the child is eligible and on what basis.
The assessments must be racially and culturally non-discriminatory, valid
for the purposes for which they are used, and provided in the language used by
the child and family (unless it’s clearly not feasible to do so.)
At least one team member must be knowledgeable IN the area of suspected
504, parental consent for evaluation is NOT required.
The decision whether or not to evaluate is made by the 504 team.
The evaluation team must include people who are knowledgeable about the
child and the suspected disability. There are no specific timelines under
Section 504, but the U.S. Department of Education has indicated that the general
rule would be the same timelines for special education apply.
and the State Code, once the parents and team decide that there will be
an evaluation, they decide what the evaluation will consist of and who will
conduct it. Once written consent
has been received, the evaluation, determination of eligibility, and development
and implementation of the IEP must occur within 90 calendar days under the New
Jersey Code. The evaluation
must be multi-disciplinary (at least two professionals), and the
New Jersey Code indicates that at least two members of the Child Study
Team must participate in the evaluation. Each
district must evaluate each student with disabilities who may require special
education and related services, including students attending nonpublic schools.
The evaluation must identify all areas of suspected disability, and the
impact of the disability on all education areas (including academic, behavioral,
social-emotional, functional, etc.). The evaluation must consider the child’s
strengths as well as needs, and the parents’ concerns for enhancing the
education of their child. Under New Jersey Code, at least one evaluator must conduct a
structured observation in an other-than-testing situation.
Other parts of the assessment include an interview with parent(s) and
teacher(s), a review of the student’s developmental/educational history, a
review of documented interventions, and one
or more “informal measures.” Every
referred student must undergo audiometric and vision screening.
The focus must be on enabling the student to be involved in and progress
in the general curriculum.
504, parents have a right to an independent evaluation at
their own expense, and to provide relevant information that must be
considered by the team.
Code, parents have a right to an independent evaluation at public
expense, unless the district requests a hearing within twenty days of receipt of
a parental request for an independent evaluation and convinces the hearing
officer that their evaluation is comprehensive and appropriate.
Parents do not have to give any reason for requesting an independent
evaluation, and districts may not place barriers in the way of parents seeking
an independent evaluation. The parents select the independent evaluator as long as they
meet state and district criteria and charge a reasonable rate.
Parents also have the right to provide relevant information that must be
considered by the team.
Re-Evaluation: Every year under IDEA/State Code and Section 504, there must
be an annual review.
504, there must be an annual determination of continuing eligibility and
an annual review of the services and accommodations plan.
Code, there must be an annual review each year to develop the IEP for
the next year. The IEP must be in
place before the start of the next school year, and before services begin.
and the State Code provide that a re-evaluation should be conducted
whenever it is necessary to confirm continuing eligibility or identify new
needs, or upon parent or teacher request. They
also require a triennial re-evaluation to determine continuing eligibility,
unless the parent and district agree that no new assessments are required to
document continuing eligibility. Parental
consent is required for each re-evaluation, unless the district can document
that it sought parental consent and the parents did not respond (not that they
denied consent!) If parental
consent is denied, the district must request and prevail at an impartial hearing
in order to conduct the re-evaluation.
of a Plan for Services
Section 504: Once eligibility has been determined, the Section 504 team
(which must include someone knowledgeable in the area of disability as well as
the child) develops a Section 504 Services and Accommodations Plan.
The district may use an IEP as the format for this plan, as long as it
contains all necessary services and accommodations. This
plan may include any services available under IDEA/State Code, as well as:
such as physical barrier removal, seating placement, extended time for testing,
testing modifications, adjustment of class schedules, rest periods, use of aides
(tape recorders, calculators, audio-visual equipment, computers, modified
(in-class) or Pull-out services such as class or homework notetaking assistance,
oral catheterization, administration of medication such as epi-pens, oral
medicine, and inhalers (no waivers may be required, except for waivers if the
medication is administered pursuant to the directions given), monitoring of
blood levels and physical or mental status, positive behavioral supports,
consultation, service coordination, tutoring, counseling, and all the related
services specifically addressed in IDEA.
accommodations required for non-discrimination, meaningful program access, and
“as adequate an education” as children without disabilities,
such as access to magnet schools, charter schools or choice programs, before and
after-school programs, clubs, graduation ceremonies, and extracurricular
and the State Code, an Individualized
Education Program must be developed by the IEP team.
This team must include the child’s general education teacher, if the
child is or may be participating in general education, the parent, an individual
qualified to provide or supervise special education, a CST member to interpret
evaluations, and a district representative authorized to make commitments.
The general educator must participate in all decisions affecting general
education or the student’s participation in the general education classroom.
Under the State
Code, the case manager from the Child Study Team must participate.
you have time, you may want to discuss why the participation of the general
educator is so important: knowledge of the general curriculum, opportunity to
take ownership and be better prepared to meet the child’s needs, and
alleviation of fear through providing opportunities to ask questions.]
IEP must contain a description of the present levels of educational performance,
including how the child’s disability affects involvement and progress in the
general curriculum; measurable annual goals and short term objectives or
benchmarks, related to meeting the child’s needs and to enable the child to be
involved in and progress in the general curriculum; specific special education
and related services and supplementary aids and supports that will be provided
to or on behalf of the student to help the student attain the goals and be
involved in and progress in the general curriculum and participate in
extracurricular and nonacademic activities with nondisabled peers; projected
date for beginning of services and frequency, duration and location of services;
extent of participation in state and districtwide assessments, and any
modifications or accommodations for that participation, participation in
extracurricular and nonacademic activities with non-disabled peers; methods to
determine if the goals are being achieved; methods to inform parents of progress
towards the goals; and placement. Districts must report to special education parents, at least
as often as to parents of children without disabilities, of their children’s
progress toward reaching the annual goals and whether adequate progress is being
made to assure that the goals will be met by the end of the year.
include administration of medication, aides, assistive technology, audiology,
counseling, in-class supports, medical services (for diagnosis), nursing
services, modified instruction, modified texts, parent counseling, peer
supports, peer training, professional development for the teacher or aide,
physical or occupational therapy, psychological services, recreation, social
work services, speech pathology services, transition services, transportation,
and other services as needed to enable the student to benefit from their
Code, there are special circumstances that must also be discussed at
each IEP meeting, and if needs are identified in the following areas, services
must be put into the IEP to address them:
needs (functional behavior assessment and positive behavior support plan)
for Blind students to learn Braille
for communication with peers and teachers, whether or not the student has a
for assistive technology
for extended school year
to adult life courses of study (14 and older) and services (16 and older)
the service plans have been completed, Section
504/IDEA/State Code all require that they be implemented as soon as
possible, so common sense requires that anyone who has implementation
responsibilities must be aware of those responsibilities.
specifically require that teachers be provided with a copy of the IEP, and be
made aware of their obligations under the IEP.
d. Services in the least restrictive appropriate environment:
504/IDEA/ State Code all require that the child be placed in the class and school the child
would attend if s/he were not disabled, and that the child not be removed from
the regular class unless the child’s needs can’t be met there
even with the use of supplementary aids and services.
Even if the child is removed from the general education classroom,
opportunities must be provided to interact with nondisabled peers.
The child may not be segregated based on administrative convenience.
The district may consider the benefits to the child and to other
children, both academically and socially.
Code, services to support the inclusion of a child with a disability may
include services to a general education teacher (training, technical assistance,
consultation) or even to other students in the class (sensitivity training, peer
buddy training, circle of friends, etc.). Exclusion
of the student from general education must justified in writing on the IEP. Teachers and administrators must be made aware of their
“least restrictive environment” responsibilities, and provided with training
and technical assistance to help them meet those obligations.
504, if the child cannot be educated in the regular class, comparable
facilities must be provided. In
other words, students with disabilities can’t be segregated in the basement or
the trailer, or sent out of district to solve an overcrowding problem, if
children without disabilities don’t share in the suffering. Section 504 also requires meaningful program accessibility to
specialized programs or any programs offered by the school or district.
Code, the district must offer a continuum of placements, from full-time
in the regular class through the most restrictive settings.
But the decision-making process must walk through each setting,
considering it as a possible placement not only as it currently exists but as it
may be modified with supports, services, aids and accommodations.
e. Rights to confidentiality of records, and parent access to
records (Family Educational Rights and Privacy Act, or FERPA, also known as the
Section 504 and
both incorporate FERPA, which provides parents with a right to access records
upon request, without unnecessary delay and before any IEP meeting
(within a reasonable amount of time). FERPA
also gives students the right to confidentiality of their records, so that
records may not be viewed or released without prior written consent of the
parents, unless particular staff need to know (the child’s teacher, related
services provider, etc.) A log must
be kept of anyone who views the records, including the date, person viewing,
records viewed, and reason. The
parents have a right to see this information.
have a right to a copy of the records if necessary for access, and to a free
copy if charging would restrict access.
also have the right to request deletions or revisions to information in the
records they believe is misleading, inaccurate, or irrelevant.
They have the right to a hearing to request deletions or revisions.
Even if they do not prevail, they have the right to attach comments to
any portion of the record with which they do not agree.
who has responsibility for student records must be informed of student and
parent rights and their responsibility for ensuring that those rights are
IDEA and the NJ
State Code contain specific requirements, known as “procedural safeguards,”
that protect the rights of parents and children eligible for special education
services. These rights include:
(State Code requires that
districts notify parents within 15 calendar days from making a decision, and
wait at least 15 calendar days before proceeding with their action after
parental notification). This notice
must include the action to be taken, the reasons why, other options considered
and rejected, any tests, procedures, records, reports or factors used by the
district to determine whether to propose or deny an action, parental rights to
contest the decision, and sources to contact to get help in understanding their
rights. The notice must be in the
parent’s language, and in a format readily understandable by the general
public. A full procedural
safeguards notice must be provided upon referral for initial evaluation, each
notification of an IEP meeting, upon re-evaluation, and when a request for
hearing is submitted to the State.
participation in meetings:
IDEA and the State Code require that parents be invited to any meetings
where decisions will be made about referral, evaluation, eligibility, services,
and placement. Meetings must be scheduled at mutually convenient times and
places, and parents must be provided notice sufficiently in advance so that they
will have an opportunity to attend. If
parents can’t attend, their participation must be facilitated through the use
of electronic conference equipment or other means, and districts must document
all attempts to involve the parents. Meetings
must be conducted in the language used for communication by the parent, and
foreign language interpreters or translators and sign language interpreters must
be provided by the district at no cost to the parent.
(students’ current placement and services may not be changed without prior
written notice, and if the parents request mediation or due process, changes may
not be made until the conclusion of those proceedings, unless the parent and
district agree otherwise; the only exception to this is in the area of
for any child whose parents are unknown, unavailable, or who is a ward of
the state. The surrogate parent may
NOT be an employee of the State or local child welfare agency or any agency
involved in the care or education of the child.
are the due process/accountability mechanisms?
504, each district must submit data to the U.S. Department of Education,
Office for Civil Rights, about placement, performance, tracking, and discipline.
OCR (allegedly) reviews this information, and district offices may
instigate investigations based on data that demonstrates potential
discrimination. However, these OCR-initiated investigations are not common.
Code, New Jersey must set standards or goals for the performance of
children with disabilities consistent with standards set for children without
disabilities. New Jersey must also
set performance indicators to assess the progress of children with disabilities
in academic achievement, drop-out rates, and graduation rates.
Students with disabilities must participate in State and districtwide
assessments, with appropriate accommodations and modifications.
States must conduct alternate assessments for students who cannot
participate in the general assessments no later than July 1, 2000.
Jersey and its districts must make available and report to the public on the
assessment results of students with disabilities, with the same frequency and
the same detail, and at the same time, as reported for non-disabled students.
New Jersey must report to the public at least every two years on progress
made towards reaching the goals, using disaggregated data and comparing
performance of classified students with nonclassified students.
Code requires districts to report on the progress of classified students
within their district.
monitoring is conducted under Section
504, unless the U.S. Department of Education receives a complaint, in
which case it will conduct an investigation.
There are no time limits for this investigation, and they often take a
long time because the Office for Civil Rights of the U.S. Department of
Education, which is responsible for enforcing Section 504, has insufficient
staff. The State does not monitor
for Section 504 compliance.
the U.S. Department of Education’s Office of Special Education Programs (OSEP)
has a six year cycle of monitoring, visiting each state for a comprehensive
monitoring once every six years. If
the Department finds major noncompliance, they will return once or more during
the six year cycle (as they have
done with New Jersey). If the
Department finds continuing noncompliance, they may withhold part or all of the
IDEA funds, or refer the State to the Attorney General for law enforcement
State Code, the NJ Department of Education’s Office of Special
Education Programs (OSEP) used to monitor every district for one or two major
issues each year. Under their new
Corrective Action Plan, they will conduct comprehensive monitoring visits every
six years. Each district will also
have to have a Quality Review/Self-Assessment Steering Committee that will
conduct self-assessments and develop and oversee implementation of quality
improvement plans in advance of the state’s monitoring visit. If the State identifies noncompliance, a corrective action
plan is required. If continuing
noncompliance is identified, the State may withhold special education dollars,
direct a particular action plan to be implemented, or even take over the
Section 504: Each district must have a Section 504 coordinator or
Grievance officer. A parent who is
dissatisfied with the results of a complaint to the Section 504 coordinator may
(a) go directly to the Office of Administrative Law (under New Jersey practice),
(b) file a complaint with the U.S. Department of Education, Office for Civil
Rights, or (c ) go immediately to federal court under a Section 1983 action.
Other than providing a forum for impartial hearings for Section 504
complaints, the State Department of Education does not address Section 504
issues. “Exhaustion of administrative remedies” is not required.
Attorneys’ fees are generally not available for hearings under Section
Parents unhappy with district policies, practices or procedures have
several remedies. If they are
complaining about a policy, practice or procedure that violates the law, they
may file a request for complaint investigation with the State Department of
Education, Office of Special Education Services.
This is not the place to address judgement calls, such as how many
sessions of related services are appropriate for a particular child.
This is the place to address concerns such as a district policy to
request parents to pay for related services, or never to place children with
emotional disabilities in general education classrooms, or other policies,
practices or procedures that would affect more than one child.
The state must complete its investigation and provide written findings
within 60 calendar days of receipt of the written request for complaint
If parents want to challenge issues particularly relevant to their child (what is the appropriate placement? Is the child eligible? How much service should the child receive?), they must either request mediation by the State or an impartial hearing before the Office of Administrative Law on the state’s form. Mediation should be conducted within 20 calendar days of receipt of the written request for mediation. If the parent requests due process, a transmittal conference will be held within 7 days from receipt of the written request, and a hearing will be scheduled within 14 days of the transmittal conference. A decision should be issued within 45 calendar days of receipt of the request for a hearing. Exhaustion of administrative remedies is required under IDEA/State Code, unless going through due process would be futile. If the child is facing disruption of services, or danger to health or safety, a request for emergent relief may be filed, and a hearing will be held within 5 calendar days. If the parent disagrees with the decision, s/he may appeal to state or federal court. If the parent prevails, s/he may be entitled to attorneys’ fees from the district.