Is Tutoring for Reading a “Direct Service” Under IDEA and Section 504?


For parents of children with disabilities, as well as public and charter school districts, it can be challenging to provide direct educational services that meet the requirements under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). In recent years, whether or not tutoring for a child receiving benefits from IDEA and Section 504 should be classified as a "direct service" has come up for debate. 

Being able to read with comprehension is a critical skill that opens doors to all children, even those who are IDEA or Section 504 eligible. While there are some differences between the two laws, many agree that tutoring, especially for reading, should be available under either law to all children.  

Some Background on IDEA and Section 504
IDEA provides a free, public education to children who have been determined to have a “disability,” and ensures that special education and related services are made available. Closely tied to that is Section 504, a portion of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in programs or activities that receive financial assistance from the U.S. Department of Education.
 
Section 504, schools are prohibited from discriminating against any child with a disability and preventing them from participating in or benefiting from services that receive federal financial assistance from the U.S. Department of Education. Although Section 504 is an anti-discrimination law, and as such does not provide direct funding, schools that are not in compliance under Section 504 are in jeopardy of losing federal funding under IDEA.

What Are Children Entitled to Under IDEA and Section 504?
Children who are IDEA and/or Section 504-eligible have been determined to have a "disability," and as such, are entitled to an individualized and appropriate education. Section 504 mandates that schools provide an education to students with disabilities that meet their needs to the same extent as the needs of students without disabilities. Such an education consists of regular or special education programs and related aids and services.
Children covered under IDEA and Section 504 are entitled to an Individualized Education Program (IEP), which must be designed to meet the unique needs of a child with a disability. One of the key requirements of an IEP is that all services be provided to the child in the least restrictive environment possible. Creating this least restrictive environment can be challenging, but with an appropriate IEP team consisting of the child's parents and teacher, a special education teacher and an administrator who can authorize the commitment to fund the services (such as tutoring), this all-important requirement in a child’s IEP plan can be fulfilled. 

Should Tutoring for Reading Be Classified as a “Direct Service”? 
The important question here, whether you’re discussing Section 504 or IDEA, is whether or not reading tutoring for a child is classified as a “direct service”? Direct services, under IDEA, are critical when ensuring that schools use federal funds for eligible children and meet the regulations for receiving such funding. The importance of reading cannot be stressed enough, and therefore, is most surely a direct service. Therefore, schools can provide tutoring as a direct service under IDEA. 

The term “child with a disability” means a child with (i) various specific impairments and learning disabilities; and (ii) who, by reason, thereof needs special education and related services. “Related Services” means developmental, corrective and other supportive services as described in the IEP of the child. As a result, under the definition of a child with a disability, a child needs specially designed instruction and related services, which are developmental, corrective and supportive services (i.e., tutoring).

Why is This Important to School Districts?
The courts have generally left the meaning of providing and receiving an “appropriate education” as to one where there is more than a trivial amount of educational benefit. A child’s ability to read and comprehend is the skill most likely to ensure a fair and appropriate education to each student.  As a parent or as a professional in the school system, what can be more appropriate than providing tutoring services for reading for a student; especially a student with a disability? Therefore, a reading tutor should be available to students who are protected under Section 504. 

School Districts should consider a reading tutor as an investment, as well as a preventive measure to help the qualifying child achieve his or her goals in their IEP. Reading tutors can also reduce the costs of services to a student with an IEP. Though it may seem like an added cost at the onset, providing reading and comprehension tutors to IDEA and Section 504-eligible children is really an investment in both the school, and the child’s, long-term success. 

For questions, comments or additional information, please contact Linell Lukesh in our Special Education Group, at llukesh@regerlaw.com or via phone at 215.495.6516.