Free Appropriate Public Education (FAPE) Under Section 504

Section 504 of the Rehabilitation Act of 1973 requires that individuals with disabilities receive the same public education as any other qualified individual. Any school or program that receives federal funding must comply with Section 504.

Section 504 operates in conjunction with the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA). The three laws govern requirements and set minimums for how schools and other educational institutions must treat students with disabilities.

One part of these requirements is that schools provide free appropriate public education (FAPE) to all individuals with a qualifying disability. A school district must provide support to any student within a district's jurisdiction regardless of the student's severity or type of disability. Understanding how this determination is made and what FAPE means in practice can help you ensure your student gets the education to which the law entitles them.

Moreover, by understanding FAPE, you will know when a school or district is failing in its obligations and when you will need to bring in outside assistance, such as the Lento Law Firm, which is experienced in education and disability rights law.

Who Is Entitled to FAPE?

In general, Section 504 covers school-aged children. IDEA covers grades K-12, which is generally defined as individuals between the ages of 3 and 21, although some school districts put the upper limit at 22. Once a student graduates from high school or its equivalent, IDEA and, by extension, Section 504 no longer apply to that individual.

Both Section 504 and IDEA define what qualifies as a disability. Students must have one of these disabilities in order to qualify under FAPE. Disabilities can be mental, physical, or emotional.

Section 504, for example, defines a person with a disability as someone who:

  • has an impairment, either physical or mental, that limits one or more activities
  • has a record or diagnosis of such impairment

OR

  • "is regarded as having such an impairment"

The final option does not excuse a student or their family from providing proof of a limitation or disability. Students must qualify under IDEA to be entitled to FAPE.

If you believe your child has been misdiagnosed or if a school district refuses to acknowledge your child's disability, you should work with the Lento Law Firm to protect your child and ensure they receive the education to which they are entitled under the law.

Individualized Needs

Federal law requires that programs and services provided to students with disabilities meet each student's individual needs. Once a student provides evidence of a disability, the most common path to provide accommodations is via an Individualized Education Program (IEP).

IEPs fall under IDEA. The goal of IEPs is to put students with disabilities on a similar footing to students without disabilities. The goal of federal law is to ensure students with disabilities have access to services and programs that adequately address their needs in the same way the needs of students without disabilities are met. This includes ensuring that teachers and staff who work with students with disabilities have the proper training to assist them.

What Is FAPE?

Students with disabilities have a right to FAPE and to services that address their individual needs. By considering each word in FAPE, you can better understand what FAPE does and does not cover. FAPE includes not only classroom instruction but also nonacademic services and extracurricular activities.

Free

Students, regardless of whether they have a disability, are entitled to free education. For students with disabilities, free education includes special education and other services without additional cost to their families. When and if extra fees are accessed, they must apply to all students and not only to students with disabilities.

For example, a student who receives weekly speech therapy should not be charged an additional fee. If a student's entire class is going on a field trip to the aquarium and every student is expected to pay $10, schools may require parents to pay those fees regardless of a child's disability.

In some cases, a school district may not have the resources or programs to support a student with disabilities. In this situation, the government will pay for a student to attend another school, including a private school, to ensure they receive the education they are entitled to by law.

Appropriate

The U.S. Department of Education defines appropriate as including:

  • Education in regular classes
  • Education in regular classes with the related aids and services

and/or

  • Special education and other services separate from regular classes for all or part of the school day

What is appropriate depends on each student and their needs. Federal law requires that schools consider the unique needs of a student. This is why an Individualized Education Program (IEP), as required under IDEA, or a 504 Plan, is crucial for any student with disabilities.

Section 504 also states that specialized instruction is not limited to the schoolhouse. Special education may occur in the school but may also occur at home or in other institutions (both public and private) and may include other services such as different types of therapy, counseling, and medical diagnostic services. The most common types of therapy are speech, occupational, and physical.

Least Restrictive Environment

Current practice is that students be taught in the least restrictive environment. In other words, when possible, students with disabilities are part of the regular curriculum and class schedule. Federal law recognizes that education is a multifaceted experience, including developing social skills, preparing students for both college and post-education careers, and making students part of a school's community when possible.

Students with disabilities benefit when in the least restrictive environment and in regular classes as much as feasible and without compromising their education. IDEA suggests that students should be in general classes to the "maximum extent appropriate."

For some students, general classes will not support them and may hurt their ability to receive an education. This is one reason IEPs are important. School officials and parents need to determine the best environment for the individual student, which may vary from what other students with similar disabilities require.

Due Process

Section 504 also defines an appropriate education as one that establishes due process procedures. Schools must establish policies that allow parents and guardians to receive notice, review records, challenge decisions, and request impartial hearings. Hearings should be organized in a way that includes not only parents and guardians but also outside counsel.

The purpose of establishing due process procedures and guidelines is twofold. One, these procedures protect a child's right to an appropriate education. Two, they support parents' and guardians' rights and responsibilities to challenge evaluation, placement, and other decisions that may undermine a child's education. The longer a parent or guardian waits to address issues, the greater the risk of a child falling behind in school.

These policies also provide a roadmap when parents believe a school district is not properly supporting their child. Inadequate support includes inappropriate placement, misclassification, or assessments based on presumptions or stereotypes about a disability. Standardized due process procedures make it easier for parents to challen