Appendix A: OCR Response to Veir Inquiry Re Various Matters 20 IDELR 864
these services be after school, or must they be held during the school hours? Is there a potential for a conflict such as that in Aquilar v. Felton and Chapter 1 issues? If a recipient has made available a free appropriate public education to a person with a disability and the person’s parent or guardian chooses to place the person in a private school, Section 504 does not require the recipient to provide services in the private school. 34 C.F.R. § 104.33(c)(4). Please note I have not answered your other questions because they were premised on the notion that under Section 504, public schools must serve persons with disabilities, placed in private school by a parent. The Section 504 regulation at 34 C.F.R. § 104.32 does not require public schools to take steps annually to identify and locate children with disabilities who are not receiving a public education and to publicize to children with disabilities and their parents the rights and duties established by Section 504 and the regulation implementing Section 504. The regulation does not specify the manner in which a district must meet its location and notification responsibility. There are many means available including notices to private schools, state and local agencies, and notices placed in newspapers. 4. For students who are referred to Special Education but do not qualify under IDEA criteria, do they automatically become Section 504 students? (Board policies of most districts state that the students automatically become Section 504 if they do not qualify for IDEA services.) Under Section 504, a “person with disabilities” is defined as any person who has a physical or mental impairment which substantially limits a major life activity. Thus, depending on the severity of their condition, students who do not meet the standards under Part B of the Individuals with Disabilities Education Act (IDEA) may or may not fit within the Section 504 definition. It is not automatic. 5. Can a student be identified as IDEA eligible be receiving some services under IDEA, and also be identified as a Section 504 student and be receiving different assistance in the regular classroom under Section 504? If the child is eligible for IDEA for the disability, shouldn’t they receive all services for their disability under IDEA? For purposes of this response, we assumed that the student described in the question is being served for the same disability under IDEA and Section 504. In order to be eligible for services under the IDEA, a child must be found to have one or more of the 13 disability categories specified and must also be found to need special education. The Office for Civil Rights cannot conceive of any situation in which these children would not also be entitled to the protection extended by Section 504. A student identified as IDEA eligible and receiving services under the IDEA in order to receive a free and appropriate public education could receive the same assistance in order to comply with Section 504. Section 104.33(b)(2) states that implementation of an individualized education program developed
BP 2003 – Civil Rights Protection and 504 Accommodations Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 09/17)
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