Section 504 or IDEA: Which One is Right for Your Special Child?

The Section 504 of the Rehabilitation Act of 1973 is a civil rights law that guarantees free education and special services for individuals who have disabilities. The disability, however, must “substantially limit” an individual’s ability to conduct major life activities. This vague criterion of the disability was intentional to give autonomy to individual school districts in deciding which students are eligible or not under Section 504. On the other hand, the Individual with Disabilities Education Act (IDEA) is an educational benefit law that provides free education and accommodations, based on an IEP (Individualized Education Program), for a special needs child or a student with a disability. The disability should be categorized in a specific list identified by this federal act. To qualify for IDEA, a study of a child’s unique case should demonstrate that the disability caused the need for special education. Due to the different natures of Section 504 and IDEA, there will be students who will be eligible in both or be eligible only in one of them. Two specific cases are described here.

To better understand these types of legal issues in special education, here are general descriptions of situations that may apply to your special needs child.

• If the child is getting As and Bs and appears to be learning without receiving special education services, despite the presence of a mental disorder such as ADD/ADHD, he may not qualify for Section 504 and IDEA. In fact, a diagnosis of a mental disorder does not automatically qualify a child for benefits from either federal law unless the said mental illness interferes with his learning. The parent, however, must be vigilant of the value of grades being given by the school. Passing grades and promotion from one level to the next do not necessarily mean academic development.

• If the child has no physical or learning disability but suffers from an illness such as severe asthma, he may not qualify for free education under IDEA but he can avail of benefits from Section 504. The Section 504 of the Rehabilitation Act of 1973 does not limit itself to learning disabilities such as visual impairment or autism. If the illness, such as severe asthma, interferes with the child’s ability to carry out major life activities, then the child receives free publicly funded education, special services and accommodations, and protection from discrimination under Section 504.

• If the child met an accident and suffers from a temporary physical disability, he would benefit from Section 504 because this law covers all disabilities, both temporary and permanent. This does not mean, however, that a broken wrist would qualify a child for 504 benefits. The temporary physical disability must still interfere with child’s major life functions. When the child has recovered from the temporary disability, he will also be removed from 504. On the other hand, benefits from IDEA are unlikely unless a case study determines that the child requires an IEP. If an IEP would be needed, the program must also include assistive technologies.

• If a child suffers from an emotional disturbance, such as depression or schizophrenia, he would benefit from IDEA because the special education services would be valuable in helping this child achieve better academic performance. It is important to remember that IDEA aims at improving learning whereas Section 504 simply equalizes the opportunities between the disabled and the non-disabled. It is also important to distinguish between an emotional disturbance and a social maladjustment. The latter, alone, will not qualify the child for IDEA. But if the social maladjustment is due to a preexisting emotional disturbance, then an IEP, with a lesson plan for the special needs child, would be prepared.