Is 504 “less restrictive” than IDEA?

Today we’re taking a second look at the California case we reviewed on Monday.  You may recall that the court held that creating a 504 plan for a student did not satisfy the district’s Child Find duty.  If the Child Find duty kicks in, there is no substitute for an IDEA evaluation. 

Today I want to address one of the rationales offered by the school for why it wanted to try 504 accommodations first.  In the spring semester the school psych said that he did not refer the student for an IDEA evaluation “in the spirit of trying to be least restrictive as possible.”  

Is 504 “less restrictive” than IDEA?  No.  Serving the student in the Least Restrictive Environment (LRE) is about a placement decision—what instructional arrangement will be the LRE for this student?  We should seek a less restrictive setting for both 504 and IDEA students, but we shouldn’t even be thinking about LRE until we have 1) evaluated; 2) determined eligibility; and 3) developed a plan.  Then, and only then, do we turn our attention to the LRE in which that plan can be implemented.  So the idea that 504 is somehow “less restrictive” than IDEA has no basis in the law.

It may be a good idea to pursue a 504 plan when considering a major life activity that would not require “specially designed instruction.”  For example, wheelchair-bound students need some accommodations, but would not usually need any form of special instruction. 

If the major life activity under consideration affects learning, any decision not to do an IDEA evaluation should be supported by Prior Written Notice that lays out the basis for the decision and the parent’s right to challenge it. The Procedural Safeguards document should be provided as well.

It's N.N. v. Mountain View-Los Altos Union High School District, decided by the federal court for the Northern District of California on August 4, 2022.  We have one more point to make about this case, so tune in tomorrow.


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Tomorrow: and yet, the student was not eligible….