Not all children can be characterized as having a disability as defined by N.J.A.C. 6A:14-3.5(c) 1 through 14, making them eligible for special education. However, children who suffer from other disabilities may still be eligible to receive accommodations pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. Section 504 provides services, educational programs, and accommodations to a broader range of children.

Section 504 plans operate similarly to IEP plans. They help students who have learning difficulties by providing them with accommodations and modifications in their education.

Qualifying for a Section 504 Plan

A person with a disability under Section 504 is one who “has a physical or mental impairment which substantially limits one or more major life activities; has a record of such impairment; or is regarding as having such an impairment.” Section 504 does not specify or list the disabilities covered under the Act. Instead, students who suffer from disabilities not covered by IEP plans may apply to the school for a Section 504 plan. The school then undertakes an evaluation of the student to determine if the student indeed has a disability that “substantially limits” “major life activities.”

“Major life activities” are defined under 34 C.F.R. 104(3)(j)(2)(ii) as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

A student’s parents or by the school can begin the process for an evaluation. If the school intends on beginning the evaluation process, then the students’ parents must be notified about the evaluation and give consent. It is required that parents be given an opportunity to take part in the evaluation process, including having an opportunity to examine relevant records, request an impartial hearing, and be represented by counsel at the hearing. Decisions made regarding a child’s Section 504 eligibility must be maintained in the student’s file and reviewed periodically. Additionally, schools are required to establish periodic re-evaluation procedures.

What Does a Section 504 Plan Do?

Pursuant to Section 504, students are entitled to a free appropriate public education. This means that services under Section 504 shall be at no cost to the student or their parents. Under 34 C.F.R. 104.33 “appropriate education is defined as: “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 C.F.R. 104.34, 104.35, and 104.36.”

Students qualifying under Section 504 are to be placed with students without disabilities as often as possible. The school is required to make reasonable accommodations or modifications tailored to the child’s individual needs.

Disputing 504 Decisions

If parents disagree with a Section 504 Plan decision, they may seek to have the decision reviewed at an impartial hearing. The child’s parent(s) would file a request for a due process hearing. The school board bears the burden of proving the appropriateness of its actions.

Under Section 504, a child with a disability has a right to be free from discriminatory actions taken by the school district or private school receiving federal funds.  A complaint investigation can be filed in the event there is an alleged violation of state or federal special education law.  The complaint must be filed with the Office of Special Education Programs.

If you have a question regarding New Jersey Special Education law, please feel free to call our office and ask for Matthew R. Tavares.

Matthew R. Tavares focuses his practice in Litigation, Employment Law, and School Law matters. He is a trained mediator and has successfully mediated small claims and special civil part matters.

Mr. Tavares received his Juris Doctor from Western New England University School of Law in 2013, and obtained licensure in New Jersey in the same year. Matthew was sworn in as a member of the New York State Bar in February 2016. He received a Bachelor of Arts degree in American History and Criminal Justice in 2010 from the University of Delaware. Matt is a member of the Hunterdon County Bar Association and the New Jersey State Bar Association.

You may contact Matt at (908) 751-1551, or matthew@legalcounselnj.com

 

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