Education Law

What Services Are Available If Your Child Doesn’t Qualify for Special Ed Under the IDEA?

By E.A. Gjelten, Author and Editor
Students with physical or mental disabilities—including some medical conditions—may be able to get accommodations and services at school under Section 504, even if they aren’t eligible under the better-known special ed law.

If your child has disabilities but isn’t qualified for special education under the federal Individuals with Disabilities Education Act (IDEA), you may be able to get help under a separate disability rights law known as “Section 504.” This law doesn’t provide the full range of rights that the IDEA guarantees, but it can be an important tool for some parents.

Section 504, which is part of the federal Rehabilitation Act, requires that people with disabilities have equal access to programs that receive federal funding—including all public schools and many private schools. The statute itself doesn’t explain much more than that, but the related federal regulations spell out what this ban on disability discrimination means in the context of K-12 schools. (See 29 U.S.C. § 794 and 34 C.F.R. §§ 104.31-104.39.)

Qualifying Under Section 504

To qualify for services under Section 504, students must have a physical or mental impairment that substantially limits at least one of the “major life activities,” such as seeing, hearing, breathing, speaking, learning, or walking (34 C.F.R. § 104.3). Impairments may include health issues like asthma, diabetes, or allergies—as long as they’re severe enough to hinder a life activity.

Under the IDEA, in contrast, students must have one of the specific disabilities listed in that law, and they must be suffering academically as a result. (See our article on eligibility under the IDEA for more details.) Because of the different standards under these two laws, you should ask your school to consider Section 504 if it has decided that your child doesn’t meet the IDEA requirements.

Comparing Section 504 and the IDEA

Because more parents with special ed kids know about the IDEA, they may be surprised to learn what Section 504 can do for them. The two laws have many similarities, as well as important differences, including:

  • Free, appropriate education. Both the IDEA and Section 504 guarantee children with disabilities the right to a “free appropriate public education” (known as “FAPE”) designed to meet their individual needs. Under Section 504, this means an education comparable to what nondisabled students receive. Under the IDEA, it means one that’s appropriately ambitious in light of the student’s individual circumstances. (For more details, see our article on “appropriate” education under the IDEA.)
  • Education plans. Under the IDEA, schools must develop an individualized education program (IEP) for eligible students. Section 504 calls for a plan, but it doesn’t have to meet the stringent requirements for IEPs.
  • Mainstreaming. Also like the IDEA, Section 504 has a preference for placing children with disabilities in regular classrooms alongside nondisabled students, as much as it’s appropriate and with the help of aids and support services.
  • Evaluations. Section 504 requires schools to test and evaluate students who may need special ed, but it has fewer procedural requirements for the evaluation process, compared to the IDEA.
  • Parental consent. Under Section 504, schools don’t have to get parents’ consent for decisions about their children’s evaluation, placement, and services.
  • Challenging schools’ decisions. Parents have the right to participate in impartial hearings to resolve disagreements with schools’ decisions about their children under Section 504. Otherwise, the law doesn’t spell out detailed requirements (such as those in the IDEA) for the dispute resolution process, leaving the particulars up to local school districts.
  • Private schools. Private schools aren’t covered under the IDEA, but Section 504 applies to any educational institution that receives some kind of federal financial assistance—which is true for many private schools. The law says that private schools may not turn away students who have disabilities but can participate in education with minor accommodations. Schools also can’t charge more tuition for these students unless it’s justified because of a substantial increase in costs for the school.

Suing Schools Under Section 504

Even when children qualify under both Section 504 and the IDEA, Section 504 might give their parents more help if they want to sue schools for not providing accommodations or services the kids need. The U.S. Supreme Court has ruled that parents don’t have to go through the lengthy IDEA dispute-resolution process before suing a school for discrimination under Section 504 or the Americans with Disabilities Act, as long as the lawsuit isn’t based on the “core guarantee” of a free, appropriate education. (Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017).)

Talking With a Lawyer

When a school isn’t providing the services and accommodations your child needs under Section 504, you can file a complaint with the principal and the school district. But if that doesn’t bring proper results, consider speaking with an education or disability rights lawyer. An attorney experienced in this area should be able to explain how the law applies in your situation and may represent you in dispute-resolution hearings or in a lawsuit against the school district. (For more details, see our article on when you need a special education lawyer.)

Go to the main FAQ page on special education and the IDEA.
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