Parents’ Right to a Timely and Up to Date 504 Plan At the Start of School

Parents’ Right to a Timely and Up to Date

504 Plan At the Start of School

by Matt Cohen

Publication of a variation of this article is upcoming in the

Next issue of

Additude Magazine

www.additudemag.com

For better and worse, the Section 504 regulations have no provisions addressing when during the year the 504 meeting should take place.   Schools typically hold 504 meetings in the spring in the same time frame as IEP meetings are typically held.  However, there is some what more variability in the timing of 504 review meetings, particularly because they are often initiated throughout the school year.   Some districts adhere to strict policies that the plan must be reviewed a year from the initiation or most recent review date.    This can be problematic, as it is often important to review and revise the 504 plan at the end of the year in preparation for the new year or, at least, at the very start of the new school year. There is nothing in the regulations that requires that 504 meetings be at any particular time of year.    There are a variety of things that parents can do if the school is unwilling to review the 504 plan in time for an up to date  plan to be in place at the start of school. The easiest is to simply provide all teachers with a copy of the current (though somewhat dated) 504 Plan written the prior November when school starts in August or September.   The school should be doing this, but there is no reason why you can't do it as well, just to make sure that the staff get the information.  In all likelihood, this may trigger some reaction from the school, good or bad, but it does assure that the information gets to the staff.   A second option that you have, even given the school's meeting schedule, is to make a request before or at the start of the school year, for a new 504 meeting to occur immediately.  You should probably have some reason other than just wanting the staff to be aware, that you are asking for the meeting, but the school will be in a weak position if they ignore your request.   

(Note that many of these same concerns may also occur in relation to the review of an IEP.   Similar arguments or strategies can also be used to push for an updated review and reconsideration of an IEP prior to or at the start of the school year, even if the school’s review schedule provides for a later review.)

        As the failure to have staff informed of the existence of the plan and unable to implement it effectively denies the student the benefit of the plan, this may represent a violation of the student's right under Section 504 to a "free appropriate public education."  The 504 regulations provide: 

34 Code of Fed. Reg. § 104.33 Free appropriate public education.

(a) General. A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is inthe recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.

(b)  Appropriate education. (1) For the purpose of this subpart, the provision

of an appropriate education is the provision of regular or special education

and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are

based upon adherence to procedures that satisfy the requirements of

§§ 104.34, 104.35, and 104.36.

Given this right, if all else fails, another strategy is to verify that the staff do not have the information and are not implementing the plan.  Once you have done this, you have the right to file a complaint with the US Department of Education, Office for Civil Rights, charging the school with non-compliance, or to request a 504 hearing from the District.   The first option is less work for you, as OCR does most of the work.  In addition, if the school has to conduct a 504 hearing, they get to appoint the "impartial" hearing officer.   However, my hope would be that either step would lead the school to either change their policy or at least make sure that staff have the plan and are implementing it, without actually having to go all the way through the process.   You might also consider letting the school know of your concern and your intent to take one of these steps and try to work out an agreement for them to solve the problem without actually initiating the complaint or hearing request.  For information about the OCR complaint process, go to:   http://www2.ed.gov/about/offices/list/ocr/complaints-how.html.  To file a complaint with OCR, go to:   http://www2.ed.gov/about/offices/list/ocr/complaintintro.html.   

See also:  www.mattcohenandassociates.com, disablethelabels.blogspot.com and my book, 

A Guide to Special Education Advocacy- What Parents, Advocates and Clinicians Need to Know, Jessica Kingsley Press, 2009, available through our website.

Matt Cohen can be reached at Matt Cohen and Associates, Chicago, Ill., 866-787-9270 or mdcspedlaw@gmail.com.

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Matt Cohen, J.D.