[author: Kendra Berner]
Students who are eligible for special education and related services under the IDEA are also eligible for services under Section 504 (though not all students eligible under Section 504 are eligible under the IDEA). Districts satisfy the provisions of Section 504 for these students when they provide services and accommodations under an IEP. So if the parents of a student eligible under the IDEA and Section 504 revoke consent for IDEA services, must the district provide services under a 504 plan?
According to a federal district court in Missouri, the answer is “No.” In Lamkin v. Lone Jack C-6 School District, the district offered an IEP that called for placement in a state-run school for students with severe disabilities. The parents rejected the IEP and placement, but rather than filing a due process complaint, revoked consent for IDEA services. The parents then enrolled their second grade daughter at the local public school and demanded a Section 504 plan. The district refused to provide a 504 plan because the parents had already rejected its offer of FAPE. The court agreed with the district, holding that the parents’ “revocation of services under IDEA was tantamount to revocation under § 504 and the ADA.”
The United States Office for Civil Rights (OCR) offered the same guidance in 1996 in Letter to McKethan, stating “that by rejecting the services developed under the IDEA, the parent would essentially be rejecting what would be offered under Section 504. The parent could not compel the district to develop an IEP under Section 504 as that effectively happened when the school followed the IDEA requirements.” Then in 2008, in response to comments about the new IDEA regulations, specifically § 300.300(b), which permits parents to revoke consent for IDEA services, the Department of Education stated that when a parent revokes consent for IDEA services, the child becomes a general education student, and the district is not required to provide the services or accommodations from the rejected IEP. But the Department refused to address specific questions concerning subsequent eligibility for Section 504 services or protections.
Districts have thus been wary about denying Section 504 services to students whose parents have revoked consent for IDEA services. Lamkin, while it is not binding on Illinois hearing officers or courts, provides support for the position stated 16 years ago by OCR that by revoking consent for services under the IDEA, parents also revoke consent for services under Section 504. To avoid confusion and conflict, when parents revoke consent for IDEA services, districts should ensure that they understand the full effect of that action.