IDEA - Individuals with Disabilities Education Act – 20 U.S.C.
§ 1400 et seq.; 34 C.F.R. § 300.
The IDEA is the principal law relied upon by advocates to obtain appropriate
education for children with disabilities. In simple terms IDEA requires public school
districts to seek out and identify children with disabilities and provide them with an
appropriate education in an educational environment, which is as close to the regular
education environment as possible. This law requires that schools develop an annual
educational plan (IEP) through an multidisciplinary team, which includes the parents.
Educational advocates function primarily in the complex processes involved in the
development and implementation of these educational plans.
a. History – Until 1975, when the Education of all Handicapped Children Act
(EHCA) or Public Law 94-14 was passed, children with disabilities had no
federally protected right to an appropriate public school education. Up to that
time, many severely disabled children were excluded from public school or were
provided only minimal education in segregated, often dismal programs.
The original EHCA was followed by successive amendments in 1983 and
1986. Then in 1990 the law was revamped and renamed the Individuals with
Disabilities Education Act (IDEA). The IDEA has been reauthorized and
amended in 1992, 1997 and most recently in November 2004.
Because the IDEA and other related educational laws are continually
changing and evolving, it is very important that advocates make every effort to
update their knowledge of the statutes and their interpretation by the courts.
To help advocates meet their ethical obligations to know the present state
of the law, COPAA provides annual updates at each of its annual conferences.
This year it is very important that advocates take advantage of not only the annual
state of the law update (review of court cases from 2004, but also Matthew
Cohen’s review of the 2004 Reauthorization.
Practice Note: Why an IEP (IDEA) over a § 504 plan?
Often schools are confounded when a parent or advocate insists upon an IEP
under IDEA, rather than accept a § 504 Plan. Consider the important differences between
a § 504 Plan and an IEP.
1. Enforceability: One practical problem with § 504 Plans is that once they are created
schools tend to treat them rather casually. Often teachers are not informed of the
requirements of the plan or simply fail to implement them. Most school districts have
very poor provisions for enforcement or remedies for failure to implement.
2. Reviewability: An IEP must be reviewed every year, while § 504 Plans are usually
created and then ignored, without reconsideration or review.
3. Provision of services: While schools may provide some basic accommodations under
a § 504 Plan, they are rarely willing to provide any services or special classes. §504 is an
unfunded mandate and therefore it provides no money for the provision of services.
These students may need special classes (Learning strategies) and services (Functional
behavior assessment, positive behavior support plan, sensory diet, socialization help,
etc.).
4. Measurement of Progress: § 504 Plans do not require the establishment of present
levels of performance (baseline) nor measurement of progress. Student’s with disabilities
need more than accommodations. They need to be taught to compensate for and manage
their disabilities. Progress toward acquiring these skills, like all education progress,
needs to be measured. IEPs require present levels of performance and measurable goals
and objectives. § 504 requires the provision of access to the general curriculum, but not
necessarily the provision of educational benefit or progress.
5. Fewer Discipline Protections: Although students with § 504 plans do receive a few
legal protections when behavioral issues arise, they are not nearly as well protected as
students with IEPs. Many schools are frankly ignorant of the protections, which must be
afforded 504 students and these student’s rights. Students with IEP have well developed
and generally recognized legal protections.
B. Legal Concepts – IDEA: It is often easiest for advocates to develop their
understanding of special education law through a study of the basic legal principles,
which have evolved from the statutes and the case law. Once the advocate has a grasp of
these principles, it becomes easier to apply the law to the complexities of the educational
process. Some of the basic principles are briefly discussed below.
1. Special Education: While most people understand that a child with an IEP
(Individual Education Plan) is receiving “special education,” there is a lot of
confusion about what we mean by this term. Essentially, special education is
considered “specially designed instruction,” which is provided to a student with
disabilities in order to assist the student successfully access education. 20 U.S.C.
§1401 – Definitions (25). 34 C.F.R. § 300.26 (3)
Special Education usually involves the adaptation or modification of content
and/or the variation in the rate or method of delivery of instruction. Special
education can also involve the teaching of skills, designed to assist the student in
compensating for or overcoming this effects of the student’s particular disability.
Practice Note: Special Education is a service – not a place
This principle is often a matter of confusion to both parents and school staff.
There is an almost automatic reflex to think of special education as involving a special
class or school. This is not only inaccurate, but it violates the legal principal which holds
that to the greatest extent possible, special education services should be delivered in the
same class with non-disabled children.
In reality a child may be eligible under IDEA, without placement in a special
education class, as long as the child requires “specially designed instruction.” 34 C.F.R.
§ 300.26. Some examples might be a positive behavior support plan, sensory diet, social
skills training or social stories, organizational aides, counseling, social work services,
work planner assistance, study skills classes, etc.
2. IDEA Eligibility: Before a student can receive special education services, it is
necessary that the student be found legally eligible for such services. In a global
sense, IDEA eligibility requires that the student be a “child with a disability” and by
reason thereof “needs” special education and related services. 20 U.S.C. § 1401 (3)
Each category of disability has its own legal criteria for determining the disability
and eligibility. The simple existence of a disability will not in and of itself make the
child eligible for IDEA services. The law also requires that the established disability
have an adverse affect on the child’s educational performance. (See Practice Note –
below)
Practice Note: The child must by reason of his disability require special education
This is an area of growing contention between advocates and school districts. For
a long time schools have denied eligibility when a child did not meet the numerical
requirements for a learning disability. Now they have begun refusing eligibility even
where a child might meet the necessary discrepancy between intellectual level and
achievement. Schools argue that the child must “require” special education and will
often deny special education services where a child receives a passing grade. This is
growing problem for children with SLD, ADHD, or emotional disabilities.
It is important for advocates to hold the line on this issue. It is important to argue
that “education” includes more than academic performance. It also includes social,
emotional and behavioral progress. A child may need special education even if the child
is successful academically, where the child has social, emotional or behavioral issues.
Furthermore, academic success is not only a question of advancing from grade to
grade or “doing as well as the others in the class.” Failing grades are not necessary to
qualify. 34 C.F.R. § 300.121 (e) Schools are regularly advancing students, who cannot
read appropriately or perform essential math skills. It is important to insist that student
progress be measured using nationally normed evaluations and not subjective teacher
measures.
Disability categories: It is important that the advocate have a good understanding of
the various legally recognized disability categories. There are presently thirteen
recognized categories of special education eligibility. The specific eligibility criteria
of each category can be somewhat complex and are usually grounded in
psychological, communicational, or physical assessments. The advocate should at
least be able to locate the precise legal criteria for each disability category and should
be capable of understanding the assessment procedures used to determine eligibility.
A few of these primary categories are:
Developmental Delay/Mental Handicaps (Mental Retardation): Some children
are considered disabled due to developmental delays or mental handicaps. In the
language of the regulations this disability refers to “significantly subaverage
general intellectual functioning, existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, which adversely
affects a child’s educational performance. 34 C.F.R. § 300.7 (c) (6). Due to
intellectual deficiencies these students have difficulty learning and retaining skills
and knowledge.
Most schools classify these students’s according to their I.Q.s (the I.Q ranges
may vary), labeling them as:
Educable Mentally Handicapped: (60 to 69) These children are often
physically and otherwise indistinguishable from their typically developing
peers. At another time they might have been labeled “slow,” due to their
greater need for concrete, repetitive, segmented, and sequential learning.
Trainable Mentally Handicapped: (35/40 to 59) Students in the trainable
range are more severely impacted by their intellectual deficits. While they
can clearly learn and are capable of developing basic reading, math, writing,
and other academic skills, the process is generally much more difficult for
them. Learning requires great effort and time. Memory deficits often
complicate the learning process. These children often have co-morbid
language, speech, gross and fine motor and physical disabilities. Many
children with Downs Syndrome fall within this classification.
Severe or Profoundly Handicapped: (Up to 35/40) Children within the
severe or profound range of disability have generally experienced severe
genetic disorders and their low intellectual capacities are most often
accompanied by significant physical handicaps. It is generally very difficult
for these children to learn the most basic living skills. Very often these
children have severe speech impairments or are non-verbal.
Specific Learning Disability (SLD): Some students with normal or even
superior intellectual capacities still have significant difficulties learning. These
students have difficulty processing information being presented in the teaching
process and they are considered to have a specific learning disability.
In general terms a student’s eligibility for services under the specific
learning disability is determined by psycho-educational evaluations of the
student’s intellectual level and achievement. When these evaluations show at
least a 1 to 1.5 standard deviation (depending upon age) between the student’s
I.Q. and achievement (in at least one domain of achievement- reading, listening,
speaking, thinking, writing, spelling, mathematical calculations), then the student
may be considered to have a specific learning disability. A true specific learning
disorder must be caused by a processing deficit, rather than some other cause such
as illness, visual or hearing impairments, or language deficits.
Specific learning disability is probably the category whose eligibility
relies most upon objective evaluations. The criteria for eligibility are covered in
detail in statute and regulations. 20 U.S.C. § 1401 (26); 34 C.F.R. § 300.7 (c)
(10); 34 C.F.R. § 540 through § 543.
Practice Note: Specific Learning Disability is only a label – What is the Disability?
When schools evaluate children for specific learning disabilities, their assessments are
often eligibility assessments. This means that the school is evaluating the child to
determine if the student has a learning disability. Unfortunately school’s usual stop there.
Too often the school can tell the parent that the child does have a disability, but they are
unable to define clearly and precisely how the disability affects the student’s ability to
learn. A learning disability is always the result of the child having difficulty processing
information. This processing problem may be different from child to child. One child
might have difficult processing certain visual information, while another might have
problems processing certain auditory information. Another child might have difficulty
processing or retaining short term or long term memory.
The essential point here is that unless we understand how the disability
specifically affects the student, we cannot know how to best teach the child or to help the
student overcome the disability. It is vitally important that the advocate not accept
incomplete assessment. The school must be able to explain the nature of the student’s
disability and to identify the appropriate methodologies for supporting the student’s
learning.
Autism: Autism was added as a separate disability in the 1997 amendments to
IDEA. Autism is legally defined as “a developmental disability significantly
affecting verbal and nonverbal communication and social interaction, generally
evident before age 3, that adversely affects a child’s education performance.
Other characteristics often associated with autism are engagement in repetititive
activities and stereotyped movements, resistance to environmental change or
change in daily routines, and unusual responses to sensory experiences.” 34
C.F.R. § 300.7 (c)(1)(i);
Autism is a term often used to define a wide spectrum of disorders beyond
the attributes of “classic” autism. Because many students may present the various
autistic traits to varying degrees, it is possible that some students fitting within the
autism spectrum (PDD-NOS) may not meet the precise criteria for the educational
criteria of autism. In such cases the OHI category (See below) for disability
eligibility may be used to qualify the student for services.
Other Health Impaired: Not all disabilities fit so easily into a category.
Congress has provided a catch all category, covering a number of disabilities and
problems, including but not limited to ADD/ADHD, diabetes, epilepsy, acute or
chronic health problems. In specific terms, the “other health impaired” category
includes health or psychological disorders which are characterized by:
“Limited strength, vitality or alertness, including heightened alertness to
environmental stimuli, that results in limited alertness with respect to the
educational environment – that adversely affects a child’s educational
performance.” 34 C.F.R. § 300.7 (c)(9)(i-ii)
For years schools insisted upon attempting to serve children in the “other
health impaired” category with 504 plans. Now it is clear that a child in this
category may have the right to an IEP under IDEA, if the disabling disorder as a
significant impact on the student’s education.
Too often schools will argue that a child in the OHI category does not
qualify for an IEP, where the student makes passing grades. They make this
argument because they incorrectly equate “education,” with “academic”
performance. Very often children in the OHI category are very intelligent and
may demonstrate at least “passing” academic success. At the same time a child
with an OHI disorder may have significant social, emotional or behavioral issues.
Failure to make adequate progress in these areas will qualify a student for
services, even if the child is passing from grade to grade. See also Practice Note:
The child must by reason of his disability require special education – on page
12.
Emotional Disorder: Children with recognized emotional disorders are qualified
for special education services. An student with an emotion disorder should have
one or more of the following conditions (34 C.F.R. § 300.7 (c)(4)):
- Inability to build interpersonal relationships (peers and teachers)
- Inappropriate types of behavior or feelings under normal
circumstances
- Pervasive mood of unhappiness/depression
- Tendency to develop physical symptoms, fears, associated with
school problems
In addition, the conditions must be chronic in that they:
- Exist over a long period,
- To a marked degree, and
- Adversely affects educational performance
The law insists that the inappropriate behavior manifested by the student
now be what the laws describes as social maladjustment or simple bad behavior
alone. Sometimes schools will resist the classification of a child as emotional
disordered on the grounds that the student is simply acting out or misbehaving
and that there is no true emotional disorder involved. For this reason it is
important to firmly establish the psychological basis of the disorder.
Practice Note: Emotional Disorder does not equal Special Class
Often parents hesitate to allow the identification of their child as emotional
disordered, because they fear that their child will be placed in an Emotionally Disordered
class. These classes are viewed as dead end classes for bad kids. In reality many
children with emotional disorders can function successfully in regular classes, with
appropriate accommodations and services.
Practice Note: Student’s with Emotional Disorders need Protection of IEP
If a student has a true emotional disorder it is essential that the child have the
protections of an IEP. Very often only proactive advocacy establishing appropriate IEP
accommodations, a functional behavior assessment and a positive behavior support plan
can protect the student against the punitive structure of school discipline. Formal
recognition of the emotional disability will assure that the student will have protection
against expulsion. It is generally far easier to establish the disability before a student
encounters a serious discipline problem, than to try to obtain recognition of the disability
when the school wants to punish the child.
Speech and Language, A “speech or language impairment means a
communication disorder, such as stuttering, impaired articulation, a language
impairment or a voice impairment, that adversely affects a child’s educational
performance.” 34 C.F.R. § 300.7 (c)(11).
3. Free and Appropriate Public Education. 20 U.S.C. § 1401 (8);
The obligation of school districts to educate children with disabilities is
summarized in the requirement for schools to provide a “free and appropriate public
education.” This is a power packed phrase and is the core principle governing every
issue related to the education of those with disabilities.
The requirement of a “free” education means that the school may not require any
payment for the provision of education. If assistive technology, special books,
transportation, etc. are required in order for the child to receive an appropriate education,
then they need to be provided without charge.
The definition of the word “appropriate” as it related to the education of those
with disabilities could fill volumes. Almost every due process administrative hearing or
court case will turn around whether or not the school district has offered an “appropriate”
education. The IEP is the vehicle or plan for delivering this “appropriate” education and
appropriateness will be decided through the subjective finding as to whether the IEP is
“reasonably calculated to confer educational benefit.”
4. Least Restrictive Environment: The principle of education in the least
restrictive environment harkens back to the origins of special education law. Prior to
1975 many children with disabilities were not offered any public education. Those who
were provided some education were generally segregated into separate institutions,
schools or classes. In this sense the § 504 and IDEA are truly anti-discrimination laws.
In simple terms these laws require that children be educated in an environment as
close to the regular education environment as possible. These laws raised a rebuttable
presumption that disabled children should be educated with their non-disabled peers.
Only when all reasonable efforts, including accommodations, modifications, and
supports, have been unsuccessful in providing an appropriate education in the regular
placement, may the school begin to restrict the students educational environment.
In determining whether a student is capable of receiving an appropriate education
in a regular education or other inclusion class it is not necessary that the student be
successful in the same way as the typically developing peers. It is only necessary that the
student be able to make educational progress according to the student’s own abilities and
nature. It has been held that social benefit may be sufficient grounds for approving
mainstream education for a child with a disability (See also IEP-Placement)
”To the maximum extent appropriate, children with disabilities, including children in
public or private institutions or other care facilities, are educated with children who are
not disabled, and special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only when the nature or
severity of the disability of a child is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactory.” 20 U.S.C. § 1412 A
(5); 34 C.F.R. § 300.130; 34 C.F.R. 300.550 through 556.
5. Stay Put: Congress recognized that at some point in a child’s education a
dispute might arise between the student’s parents and the school district as to the
appropriate educational plan for the child. In an effort to maintain a certain equilibrium
between the parties during the resolution of the dispute, the law has established the
principle of “stay put.” This means in simple terms that the student shall remain in the
current educational placement “during the pendency” of due process administrative
hearing or Court trial. The child can be moved to another placement during the pendency
of the resolution only by mutual agreement of the parties.
“… during the pendency of any proceedings conducted pursuant to this section,
unless the State or local educational agency and the parents otherwise agree, the child
shall remain in the then-current educational placement of such child, …” 20 U.S.C. §
1415 (j)