Special Education Law (IDEA)

Special Education Law (IDEA

2006

This country has long recognized the necessity of an education in to function productively in society . As suggested by one of the founding fathers , Thomas Jefferson "some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system (Education for Freedom ) More recently , the Supreme Court recognized the importance of education in Brown v . Board of Education "It is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity

of an education (Boyle , 2004 ) The Court reiterated its belief in Plyler v Doe "By depriving the children of any disfavoured group of an education , we foreclose the means by which that group might raise the level of esteem in which it is held by the majority . Illiteracy is an enduring disability (Touro Law Center

Today this need to educate remains just as pressing . Our country is plagued by economic and social costs because of its failure to provide this "basic tool " Without an education , adults are unable to provide for themselves financially , much less for their families . As a result many turn to crime . Theft , drugs , and violence become the solution , and society is left the victim of the very problem it helped to create

The promotion of a free and appropriate education for all , violence-free schools , and parental and community involvement have become top priorities for our nation 's educational agenda . This is reflected in current legislation and federal initiatives intended to improve results for student success . The incremental changes over time in legislation and pedagogy related to viewing children systemically have been important to policy and practice not only in the field of education but across all health and human sciences

Congress enacted the first version of the Individuals with Disabilities Education Act (IDEA ) with the RHA already in force to further define the obligations of schools to disabled children and to help meet part of the cost of educating them . IDEA is a grant program providing money to states that choose to participate--all states now do--to help support the education of disabled children , ages three to twenty-one . To be eligible for federal funds under the IDEA , a state must develop a plan for providing all disabled children a "free , appropriate public education which emphasizes special education and related services designed to meet their unique needs " The plan must include a system for allocating funding to local school districts and comply with the program requirements as spelled out in the law and implementing regulations . In turn , each local school district must submit an application to the state indicating how it will comply with IDEA requirements (Blakemore and Lim Yee , 2001

Historically , Public Law 94-142 , the Education for all Handicapped Act of 1975 , protected the rights of every child to individualized education in to remove the barriers that make learning difficult . The law did not specify barriers such as child maltreatment , witnessing violence in the home or community , and school violence however , these problems can serve as much as a barrier to learning as any type of perceptual problem (Rudo , Powell Dunlap , 1998

If the followers and supporters of special education have a zeal and commitment that seems almost too high for some , there is a good reason Before 1973 , any principal or superintendent in the nation could exclude any child from attending any public school by simply pronouncing them uneducable ' Appeals were not useful in most cases , so over 1 million children had no schooling , or in a few cases were educated in private facilities , at extraordinary cost to the parents . It was as easy to deny public schooling for having a disability as for being black in the 1960s

Two landmark court decisions changed everything . Brown v . Board of Education in Topeka outlawed racial segregation in schools . Mills v Board of Education in 1973 entitled every disabled youth to a free appropriate public education in the least restrictive environment regardless of disability ' under the Equal Protection Clause . Just as racial desegregation laws had to be clearly and aggressively enforced because of more than a century of segregation , so too the 1975 Education for all Handicapped Children Act had to be written with equal clarity as PL 94-142 , now (with revisions ) called the Individuals with Disabilities Education Act , or IDEA . It clearly spelled out (1 ) who was eligible for special education services (2 ) parental rights (3 ) the necessity of IEPs , or Individual Education Plans , for each special education student (4 ) least restrictive environment ' and (5 ) the need to provide related (ducational ) services such as transportation

Although states had been gearing up for special education programs for a decade before the Mills decision , something like 94-142 was necessary before concerted activity could proceed . Over the twenty years since passage of 94-142 , the numbers of students served and teachers certified in special education has expanded at a rate greater than any national student increases definitions of categories of disability have changed arguments about mainstreaming ' and inclusion ' have occurred funding has soared to a current 32 billion from all sources local state , and federal responsibilities have been clarified and the programs have become a part of virtually all public school districts

Currently , Public Law 105-17 , the Individuals with Disabilities Act Amendments of 1997 (IDEA , acknowledges the importance of addressing behavioural as well as learning problems within the special education population . This reauthorization of PL 94-142 requires educators to conduct functional behavioural assessments and implement behaviour intervention plans that include positive behavioural interventions and supports . These mandates are aimed at providing students with disabilities , particularly those who are at risk for or who engage in aggressive and violent behaviour , with the necessary skills to handle their anger and aggression in acceptable ways (Hartwig Ruesch , 2000 Additionally , IDEA places enormous emphasis on increasing the involvement and participation of parents of children with disabilities in to enhance their children 's learning . Although not specific to children with disabilities , increased parental involvement in education is also an aim of the U .S . Department of Education 's Goals 2000

The basic mandate of the IDEA is that all disabled children must receive a free appropriate public education (FAPE . FAPE means "special education and related services that are provided at public expense under public supervision and direction without charge and are provided in conformity with the child 's individual education plan (IEP " The FAPE requirement extends to disabled children who have chosen to attend public schools , religious or other private schools , charter schools , or home schools and even to disabled children who have been suspended or expelled from school . IDEA is primarily a children 's rights law Disabled children must receive a free appropriate education whether or not their parents want them to . IDEA also gives parents the right to participate in the making of decisions regarding their disabled children and to examine all records concerning their disabled children (Special Education Lawyers

IDEA defines "child with disability " as one who meets two conditions (1 ) with mental retardation , hearing impairments (including deafness speech or language impairments , visual impairments (including blindness , serious emotional disturbance (2 ) who , by reason thereof needs special education and related services " IDEA also permits school districts to service students ages three to nine who are experiencing physical , cognitive , communicative , social , emotional , or adaptive developmental delays and who by reason thereof need special education and related services . The statute provides an extended definition of specific learning disability , and the implementing regulations provide additional definitions of mental retardation , other health impaired , autism , and traumatic brain injury

IDEA requires state and local education agencies to locate , identify and evaluate disabled students , even those who have never enrolled in public school . The evaluation should be completed early enough so that an IEP can be in place by the beginning of the school year . If a possibly or apparently disabled child is applying for initial admission to a public school , the child--with parental consent--will usually be placed in the regular public school program until the evaluation is complete . Before a child is evaluated , written notice explaining the proposed evaluation and the reasons for it must be given to the child 's parent . The notice must be in the parent 's native language or , if the parent does not have a written language , it must be communicated orally Parents must also be given a copy of their procedural safeguards , such as their right to request a hearing if they disagree with the results of the evaluation . Parents also have a right to examine "all records relating to " the child

The school district must solicit parental consent for the evaluation . If the parents refuse consent , the parents may agree to enter into mediation with the district or the district may request an impartial hearing in to proceed with the evaluation . Either the district or the parents may request review of the hearing officer 's decision by the state 's education agency and ultimately by a court . Similar procedures apply if parents initiate a request for an evaluation but the school district refuses . The district must provide the parents with written notice of the basis of their decision not to evaluate . Parents may then request mediation or a hearing followed by state-agency and judicial review

The evaluation must be in the child 's native language , free of racial bias , conducted by a multidisciplinary team , and designed to assess a wide range of skills including sensory , manual , and verbal . Only validated tests tailored to assess specific areas of educational need may be used . No general IQ test nor any "single procedure is to be the sole criterion for determining an appropriate educational program " An additional set of requirements establishes the criteria for determining the existence of a specific learning disability

Overall , the evaluation must be designed to assess the child 's strengths as well as weaknesses . At the conclusion of the evaluation "a team of qualified professionals and the parent of the child " are to determine if the child is disabled . The team may not decide that the child is disabled "if the determinant factor . is lack of instruction in reading or math or limited English proficiency " Reevaluation of any child found to be disabled must take place at least every three years or more frequently if requested by the child 's parents . Parents also have a right to obtain an independent educational evaluation . The school district must reimburse the parents for the independent evaluation if an impartial hearing finds the school 's evaluation was incorrect . Despite all the procedures and safeguards , schools and parents may disagree as to whether a child should be classified as disabled under the IDEA criteria

The parents of eligible students with disabilities can exercise extensive rights on behalf of their children . Among them are the following (1 ) The right to receive notice of actions proposed or rejected by the education agency (2 ) The right to withhold consent to initial evaluation for eligibility and initial placement in a special education program (3 ) The right to an Independent Educational Evaluation , often at public expense (4 ) The right to participate in the development of their child 's IEP (5 ) The right to access their child 's records and (6 ) to prevent unauthorized access by others (7 ) The right to an administrative decision by an impartial hearing officer if a conflict arises with respect to the student 's identification evaluation , program , or placement as a special education student (8 Ultimately , the parent has the right to go to court to uphold the provisions of the statute

Once it has been determined that a child qualifies for services under IDEA , an IEP must be developed . The process used to develop the IEP must consist of one or more meetings attended by the child 's teacher , another public school representative qualified to supervise the provision of special education , the child 's parents , and , where appropriate , the child . The district must take all necessary steps to ensure that the parents are able to attend the IEP meetings and understand the evaluation results , the proposed IEP , and anything else discussed at the meetings . If the child has been evaluated for the first time , a member of the evaluation team or someone else familiar with procedures and results of the evaluation must also be present . If a public school has placed or proposes to place a child in a private school or facility , a representative of the private facility must also attend . In developing the IEP , the team must consider any special circumstances that may be affecting the child 's educational performance such as behavioural problems or limited English proficiency . The IEP must be reviewed by the same process at least once a year and early enough so that the new IEP can be in force at the beginning of the next school year . The review should specifically address any lack of expected progress . If parents are dissatisfied with the outcome of the IEP process , they may seek review from an impartial hearing officer , designated state agency , and ultimately from a court

An IEP is a written statement that includes the child 's present level of educational performance annual goals and short-term instructional objectives the special education and related services to be provided any assistive technology to be provided the extent to which the student will participate in the school 's general program with nondisabled students the dates for initiation and duration of services criteria procedures , and schedules for evaluating whether the objectives are being achieved and a plan for informing the parents of the child 's progress . IDEA regulations define special education as "specially designed instruction " to meet the unique needs of a disabled child including adapting "content , methodology or delivery of instruction

Special education must include the same range of courses offered to nondisabled students including art , music , homemaking , vocational education , and physical education as well as extracurricular activities and nonacademic activities and services , such as lunch and recess as appropriate . Related services may include transportation , special equipment such as hearing aids and computers , and a variety of other forms of assistance necessary to make it possible for the child to benefit from special education . The IEP may also include behavioral interventions if necessary , and beginning no later than age fourteen transition services . Behavioral interventions are programs designed to deal with conduct that impedes the child 's learning or that of others Transition services are programs designed to ease movement from school to postschool activities including work , higher education , and vocational training

However , many believe that complying with IDEA may be particularly difficult for charter schools because separating from larger school districts results in a major loss of resources (Szabo Gerber , 1998 Moreover , special education funding is complex and multilayered . As a result , some charter school administrators have little understanding of the sources of funding available to them , let alone how to access such funding

Because children who may have a disability are protected by IDEA charter school administrators and staff need to be aware of the proper procedures for assessing and placing students . They also need to be aware of how to implement an active IEP , because they are required to make accommodations and provide services for students with disabilities It appears that some charter schools are in fact having difficulty serving students with disabilities . Zollers and Ramanathan (1998 ) found that many charter schools are not serving children with disabilities Specifically , Zollers and Ramanathan cite numerous attempts of Massachusetts for-profit charter schools to actually counsel their special education students out ' of their schools . This article sheds light on the potential extremes that charter developers may take to ensure success in accountability for their schools . Not-for-profits are not immune to such phenomena

In spite of the intention of the originators of the charter school movement to avoid educational regulations , the responsibility to provide education to students with disabilities has become among the more complex challenges facing charter schools . Charter schools are obligated to comply with all state and federal laws and regulations pertaining to the education of students with disabilities . In particular , the rights as delineated in IDEA and Section 504 of the Rehabilitation Act may not be waived . As result , the requirements of these statutes can create special challenges for charter school personnel . In 1975 , Public Law 94-142 mandated that all children with disabilities would receive a free , appropriate public education in the least restrictive environment (Special Education Lawyers . In 1990 , the Individuals with Disabilities Education Act (IDEA ) amended PL 94-142 to include such important legislation as

1 . All children and youth with disabilities , regardless of the severity of their disability , will receive a free , appropriate public education (FAPE ) at the expense of the public

2 . An Individualized Education Program (IEP ) or an Individualized Family Services Plan (IFSP ) will be developed for every child or youth found eligible for special education or early

3 . To the maximum extent appropriate , all children and youth with disabilities will be educated in the regular education environment

4 . Parents have the right to participate in every decision related to the identification , evaluation , and placement of their child or youth with a disability

5 . Parents must give consent for any initial evaluation , assessment , or placement that may occur , as well as any changes in placement

6 . Parents have the right to challenge or appeal any decision related to the identification , evaluation , and placement of their child (Banks 1997

In 1997 , Congress revised the 1990 version of IDEA . This legislation addresses special education programs in charter schools . It specifically states that the local education agency must serve children with disabilities attending those schools in the same way it serves children with disabilities in other schools , and it must provide funds to those schools in the same way it provides funds to its other schools

In addition , Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability by any agency receiving federal funds . This legislation includes school districts and charter schools , because as public agencies , they are mandated to provide an education for children in a nondiscriminatory fashion (Blakemore and Lim Yee , 2001

Yet , even with all these requirements and guidelines , the issue of what constitutes an appropriate education for a particular disabled child is often difficult to resolve . Not surprisingly , given the realities of educational budgets , the imprecision of instructional methodologies , and the strong emotions involved , the program requested by parents sometimes does not coincide with the one offered by the school . In these instances , IDEA and the implementing regulations do not always provide a clear solution . Courts may be called upon to resolve the issue of whether a particular program or service is required under the IDEA or of whether a child 's overall program of special education satisfies the law

References

Banks , Michelle L (1997 . CFIDS : Educational Rights , Responsibilities and Options . NLDline . Retrieved March 17 , 2006 from http /www .nldline .com /504_information_from_cdif .htm

Boyle , Phillip (2004 . ASBJ Special Reports 2004 - 0404 . NSBA Retrieved March 16 , 2006 from www .asbj .com /BrownvBoard /brown8 .html

Blakemore , C . and Lim Yee , N (Spring 2001 . Annual Report : PAI to open San Diego office . PAI Newsletter , 75

Education for Freedom . Case Backgrounds : Case 3 Plaintiff Role Card Retrieved March 16 , 2006 from www .freedomforum .org /packages /first /Curricula

Hartwig , E .

Ruesch , G . M (2000 . Disciplining students in special education . The Journal of Special Education , 33 , 240-247

Rudo , Z . H , Powell , D . S Dunlap , G (1998 . The effects of violence in the home on children 's emotional , behavioural , and social functioning : A review of the literature . Journal of Emotional and Behavioral Diss , 6 (2 , 94-113

Special Education Lawyers . Individuals with Disabilities Education Act FAPE . Retrieved March 17 , 2006 from www .specialeducationlawyers .info /fape .htm

Szabo , J Gerber , M (1998 . Special education and the charter school movement . Special Education Leadership Review , 135-148

Touro Law Center . U .S . Supreme Court . Plyer v . Doe , 457 U .S . 202 (1982 Retrieved March 16 , 2006 from www .tourolaw .edu /patch /Plyler

Zollers , N Ramanathan , A (1998 . For-profit charter schools and students with disabilities : The sordid side of the business of schooling . Phi Delta Kappan , 81 (14 , 284-289

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