Thursday, September 23, 2010

Big Changes to §504: Do They Affect Special Education - Postscript Part II

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Our recent  series on § 504 and special education examined the recent changes in the Americans with Disabilities Act, which automatically change provisions of §504. These changes were mentioned by multiple speakers on my summer rock tour for special education law.

One person who I asked about this was my buddy and mentor Art Cernosia.  Art and I grew up about ten miles from each other in Chicago, but we didn't meet until he was in Vermont and I was in West Virginia. He is now one of the national authorities on special ed law.  I wondered what he thought of Professor Webber's prediction that 504 would be seeing more action because of the IDEA eligibility tightening.

Art said that he thought that   § 504 would not see much of an increase in activity.  He believes that the anti-discrimination nature of the 504 FAPE requirement would be  less attractive still to parents than the more fully defined IDEA FAPE requirement.

Also, he pointed out that  the exhaustion requirement is being applied increasingly by the courts to §504 actions.  In other words, courts are requiring parents who file 504 suits to first exhaust their administrative remedies by pursuing a due process hearing under IDEA with the state education  before proceeding to court. This exhaustion requirement, he feels, will make it likely that parents will continue to file both IDEA and 504 claims together rather than 504 in lieu of IDEA.
§504 is very quickly becoming a hot button issue.   

So what do you think will §504 replace IDEA as the special education law of choice?
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  1. The issue for parents is not winning a lawsuit - the goal is to get the needed services to your child in as timely a fashion as possible. Ultimately setting up a winning strategy for litigation that may allow you to collect damages or fees as a collateral matter is one thing. Getting the services is another. The problem with the 504 route is that there is no quick trigger. You cannot file for due process and pull the school to the table immediately. You have to file an administrative appeal with the Office of Civil Rights in another state. It becomes a 'race' between when your child will graduate v. getting your case heard.

  2. Your recent posts on ADA/504 have been great, JIm. Can you remind us why again the ADA changes automatically change the 1973 Voc and Rehab Act???

  3. Laegle,

    True some 504 claims are brought directly by OCR, but parents also can sue on their own for 504 violations in some cases.


  4. Benjamin,

    The 504 definitions and regs incorporate the ADA definitions. So ADA changes also change 504.

    This way people need lawyers? Just kidding - maybe?