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
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.
Matt Cohen, J.D.
