July 27, 2018 Practice Points

Considering Individual Education Plans and 504 Dispute Resolution Options for Students with Disabilities

By Jonathan Slack

The Individuals with Disabilities Education Act (IDEA) and the Rehabilitative Act of 1973, as amended by the American with Disabilities Act Amendments of 2008, legally entitle students with disabilities to receive accommodations to obtain a free and appropriate education. If a disabled student is not receiving accommodations for his or her disability, there are numerous dispute resolution options attorneys can pursue on behalf of their clients. This article provides an overview of many of the dispute resolution options attorneys can utilize on behalf of their clients when schools refuse to provide accommodations for disabled students. Determining which dispute resolution option is correct for a client involves understanding the client’s priorities, the costs of each option, and the various statute of limitations.

As a preliminary matter, students with disabilities can receive accommodations from their school by qualifying for either an Individual Education Plan (IEP) or a 504 plan. An IEP is harder to qualify for than a 504 plan, but provides more protections for students than a 504 plan. To qualify for an IEP, a student’s disability has to fit into one of 13 categories listed in the IDEA. In contrast, a student with a disability qualifies for a 504 plan if their physical or mental impairment substantially limits a major life activity. A broad range of activities are considered major life activities, such as breathing, standing, walking, thinking, speaking, bending, reading, and caring for oneself. In terms of protections, parents seeking an IEP for their child have a right to participate in IEP meetings and to request an independent educational evaluation, and an IEP must be written down, whereas parents seeking 504 plans receive none of those rights and a finalized 504 plan does not have to be documented.

There are various dispute resolution options available if a disabled student is denied an IEP or a 504 plan. If a child is denied an IEP plan, attorneys can initiate mediation, file a state administrative complaint, or file a due process complaint. Additionally, the attorney can file a lawsuit against the school district within 90 days after the due process hearing has been adjudicated. If a child is denied a 504 plan, attorneys can initiate mediation, initiate a school’s grievance procedures, seek an impartial administrative hearing, file a complaint with the Office of Civil Rights, or file a lawsuit against the school district.

The type of resolution that is best for a client will depend on a client’s priorities and timeline. If a client prioritizes maintaining good relationships with their school district, attorneys may wish to pursue informal negotiation and mediation for both IEP and 504 plan disputes. The mere threat of filing a state administrative complaints in an IEP dispute or an Office of Civil Rights (OCR) complaint in a 504 dispute can provide leverage during negotiations and mediation. Clients in a 504 plan dispute can also utilize a school district’s specific grievance procedures. A school district’s grievance procedures widely vary, but usually school employees preside over these procedures, which decreases the chances a client will prevail.

If less adversarial options fail, or the statute of limitations is about to expire, attorneys in an IEP dispute can file a state administrative complaint and attorneys in a 504 plan dispute can file an OCR complaint. These dispute resolution options are more adversarial than mediation, negotiations or grievance procedures and involve either the federal government or a state agency actively investigating the school district.

Attorneys should counsel their clients that state administrative complaints and OCR complaints have a short statute of limitations. With rare exceptions, the conduct alleged in an OCR complaint must have occurred within the past 180 days. The statute of limitations for filing a state administrative complaint varies, but some states have a similar 180 day statute of limitations. Attorneys may have to file a state administrative complaint or an OCR complaint to preserve them even if a client prioritizes solving their dispute through mediation, negotiations, or grievance procedures. If these fail and both complaints are not preserved, the only remaining dispute resolution options are a due process hearing, an impartial administrative hearing and litigation. These options are more adversarial and costly than filing either type of complaint.

In an ideal world, all school districts would provide the education and services every child is legally entitled to. However, when school districts falter, attorneys have a large number of available options for recourse. Attorneys should discuss the options with their clients to determine the best possible course of action to ensure a client is protected under IDEA.

Jonathan Slack is a summer associate with Jenner & Block, Chicago, Illinois. He will graduate from the University of Michigan Law School in 2019.

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