Dated October 2, 2003

Daniel W. Morse, Esq.

Disability Law Center

205 North 400 West

Salt Lake City, Utah 84103

Dear Mr. Morse:

This is in response to your letter requesting clarification from the
Office of Special Education Programs (OSEP). You ask the following
questions:

1)  Does Utah \[State Board of Education Special Education\] Rule
    III.I.10 (2001) violate Part B of the IDEA \[Individuals With
    Disabilities Education Act\] by allowing LEAs \[local education
    agencies\] to write services required under IDEA on a Section 504
    plan instead of an IEP \[individualized education program\].

2)  More generally, can LEA compliance with Section 504 substitute for
    compliance with Part B of the IDEA?

You ask these questions in the context of whether accommodations for a
student with disabilities can be listed solely on a Section 504 plan and
not on the child's IEP.

The Part B regulations implementing the IDEA require that a State have
on file with the Secretary policies and procedures approved by the
Secretary that demonstrate that the State has in effect policies and
procedures to ensure that it meets the conditions in §§300.121-156 of
the Part B regulations (§300.110(a)). Given that Rule III.I.10 of Utah's
State Board of Education Rules of June 2000 is a change to the policies
and procedures Utah currently has on file with the Secretary, the
Monitoring and State Improvement Planning Division (MSIP) of OSEP is
currently reviewing the change in Utah's rule for consistency with Part
B.

In response to your questions, it is important to contrast the
requirements of Section 504 and the IDEA that apply to elementary and
secondary students with disabilities. Section 504 prohibits
discrimination based on disability in programs or activities receiving
federal financial assistance. For elementary and secondary school
students, the Section 504 regulations require that a free appropriate
public education (FAPE), as defined in the regulations, be provided to
students with disabilities in the recipient's jurisdiction. The Section
504 regulations at 34 CFR §104.33(b)(2) specifically set out that the
implementation of an IEP developed in accordance with the IDEA is one
means of meeting the requirement for FAPE contained in the Section 504
regulations. Therefore, many school districts develop and implement IEPs
in accordance with the IDEA, to meet both the Section 504 and IDEA
requirements for elementary and secondary students with disabilities who
are covered under both statutes.

The IDEA and its regulations also require that States and school
districts make FAPE available to eligible elementary and secondary
students with disabilities and set out specific requirements for the
development and content of students' IEPs. The IDEA regulations do not
permit a Section 504 plan to substitute for an IEP. While this does not
mean that an IEP cannot contain information or services that were
previously a part of the student's Section 504 plan, a Section 504 plan
that does not meet the specific IEP requirements of the IDEA may not be
used to substitute for an IEP.

If this office can be of further assistance do not hesitate to contact
Sheila Freedman at (202) 205-9055 or Dale King at (202) 260-1156.

> Sincerely,
>
> /s/ Patricia J. Guard for
>
> Stephanie Smith Lee
>
> Director
>
> Office of Special Education Programs

cc: Karl Wilson, USOE Director of At Risk and Special Education Services

Brenda Broadbent, USOE State and Federal Compliance Officer