General Practice, Solo & Small Firm DivisionMagazine

The Individuals with Disabilities Education Act

BY FLORENCIO "LARRY" RAMIREZ
© American Bar Association. All rights reserved.

Florencio "Larry" Ramirez is a small firm practitioner in Las Cruces, New Mexico. He is the chair of the ABA General Practice, Solo and Small Firm Division.

The Individuals with Disabilities Education Act1 (IDEA) was enacted by Public Law 94-142 to ensure that children with disabilities receive a Free Appropriate Public Education (FAPE), and that their parents or guardians have the opportunity to participate in the development of that education. Its predecessor was the Education of the Handicapped Act.

The stimulus was the failure of states to adequately provide special education to children with disabilities. In studying the need for this legislation, Congress found that there were more than eight million children with disabilities in the United States and that one million children were entirely excluded from state public school systems. Additionally, more than half of the school-age children with disabilities in the United States were not receiving appropriate educational services and more than 75 percent of pre-school children with disabilities were not receiving appropriate educational services.

The IDEA requires all states receiving federal funds for special education to establish goals for providing full educational opportunities to all children with disabilities, and provide procedures for ensuring that children with disabilities and their parents or guardians are guaranteed procedural safeguards in decisions regarding identification of children with disabilities, appropriate evaluation, and appropriate educational placement. In addition, the IDEA requires that the states establish procedures so that children with disabilities are educated to the maximum extent appropriate with children without disabilities (i.e., children with disabilities are integrated or included in the regular education curriculum to the greatest extent possible).2

Special Education

"Special education" means specially designed instruction and related services, at no cost to the parent, that meet the unique needs of a child with a disability, including classroom instruction; instruction in physical education; home instruction; and instruction in hospitals, institutions, and other settings.3 Special education includes vocational education4 and "medical services" for diagnostic purposes.5 "Related services" include transportation; speech pathology and audiology; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; early identification and assessment of disabilities in children; counseling services, including rehabilitation counseling; and medical services for diagnostic and evaluation purposes. The term also includes school health services and social work services and parent counseling and training.6

In Irving Independent School District v. Tatro,7 the Supreme Court held that where medical services beyond diagnosis are necessary for a child with disabilities to attend a regular public school class, the public school is required to provide the necessary medical services.

The regulations define "children with disabilities" as children who are between the ages of three and 218 and who have been evaluated in accordance with the regulations as having mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, or multiple disabilities; and who because of their disabilities need special education and related services.9

There are no specific disability classifications for children who suffer from Attention Deficit Disorder (ADD) or Attention Deficit Hyper-activity Disorder (ADHD). However, if a student is otherwise classified as a child with a disability and also suffers from ADD or ADHD, the student must receive services for ADD or ADHD to meet the student’s unique needs under the IDEA.10

One of the changes implemented by the 1997 amendments to the IDEA is that children from ages three to five who do not meet one of the specific classifications may be eligible for services if they are experiencing "developmental delays" as defined by the state, measured by appropriate diagnostic instruments and procedures, in one of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and who for that reason need special education and related services.11

What is extremely clear from all of the past experience and research is that the earlier children with disabilities can be identified, the greater the chance that significant progress and remediation can be accomplished. This change in the IDEA will identify and include more children with developmental disabilities into programs that can benefit them sooner rather than later. What this means, perhaps, is that children’s developmental delays may be overcome before they become too significant, which in the long run will be a benefit to our society.

A Parent’s Perspective

Thirteen years ago this past March 31, God blessed me and my family with Jeffrey. Three years earlier, we had been blessed with Jaime. Two boys three years apart and as different as two brothers could ever be. Jaime is the honor student and an exceptional athlete (please excuse a proud father), and a really good kid. He has never given his mother or me an ounce of trouble.

Then came Jeff. There was a lot of excitement about the prospect of a new baby and a lot of anticipation. The pregnancy was a difficult one for Nancy and at Christmas the doctor confined Nancy to bed. I was really worried about Nancy and the baby and ultimately my fears were born out. Jeff was born five weeks premature and because he was so early his colon had not fully developed. He was born with a condition called imperforate anus, which meant he had an underdeveloped colon and no anal opening.

The delivery was very difficult for Nancy—she was in labor for more than 13 hours. Because of Jeff’s medical problems he was placed in intensive care and his doctors performed a colostomy within 24 hours of his birth. Nancy was confined to her bed on doctor’s orders and she was frantic to see her new son. Jeff came through the surgery like the champ he is and began convalescing in the neonatal intensive care unit where he spent the first 21 days of his life.

After about a week Nancy left the hospital for home, but without Jeff. Obviously, the doctors felt Jeff’s condition was still too fragile to go home right away. In any event, about two weeks after Jeff’s birth his doctor asked to speak to Nancy and me. Nancy told me later that she knew exactly what the doctor wanted to tell us, but she hoped against hope that she was wrong. You see, Nancy was a special education teacher at the time and had previously worked with severely retarded children. She currently works as a diagnostician for our local school district, trying to identify children with special needs, because "special education" applies not only to mentally retarded or learning disabled children, but to children with needs for advanced educational placement. So, from that standpoint, both of my sons are "special education" students. It’s just that one drives and the other will never drive.

As you may have already surmised, the doctor told us that Jeff was born with Down Syndrome, and that he had performed a chromosomal study to confirm that fact. Down Syndrome is a chromosomal anomaly. Instead of 46 chromosome present in a cell, individuals with Down Syndrome have 47 (for more information, see the Down Syndrome website at www.nas.com/downsyn/index.html).

Down Syndrome is the most commonly occurring genetic defect condition. One in every 800 to 1,000 live births is a child with Down Syndrome. There are several different forms of Down Syndrome. All children born with Down Syndrome are mentally retarded, mostly in the mild to moderate range. However, the retardation may be severe, and other medical problems may be associated, such as heart problems, vision problems, hearing problems, and speech problems. Some forms of Down Syndrome produce children with very short life expectancies of months to a year. However, with the advances in medical science and the acceptance of children with Down Syndrome into our society, many children afflicted with Down Syndrome may enjoy almost a normal life expectancy. There are some reported cases of people with Down Syndrome living into their eighties.

We have been very fortunate in many ways that Jeff has not had more medical problems. He has some vision problems that are corrected with glasses and he has had some difficulty with bowel malfunction on occasion. For the most part, however, he has been a very happy, healthy, and gregarious child and a joy to his entire family. His brother complains (somewhat facetiously) that he doesn’t like to go places with Jeff because everyone knows Jeff and stops to speak to him. I also know (firsthand) that Jeff has a tremendous sense of humor and loves practical jokes.

Down’s children tend to have a variety of medical problems and they generally suffer from low muscle tone, poor vision, and obesity. As sobering as it might be, the first realization that comes to you as a parent is that, unless you are independently wealthy, you will never have enough resources to provide, over her life span, for all of your special child’s needs. Read "Special Needs Trusts: Planning for a Child with Disabilities," by Edward D. Beasley, for more information.

I hope, if nothing else, that this article has increased your awareness of the issues affecting children like Jeffrey, and will be a starting point for your own advocacy on behalf of parents, children, or school districts and other educational agencies.

Identifying the Child with Disabilities

The process begins with identification of a child with disabilities. Every local education agency (LEA) is responsible for ensuring that all children with disabilities within its jurisdiction are identified, located, and evaluated, including children in all public and private agencies and institutions within that jurisdiction.12 In many cases, identification is simply a matter of identifying a child with any of the conditions or classifications contained in the regulations.13

In other cases, identification can be made by a parent, teacher, or other interested person who has a reasonable suspicion that the child may have a disability. The obligation to perform a comprehensive evaluation is not absolute. A parent’s wish for his child to be evaluated, without more observational data, is not sufficient. However, where the LEA has sufficient observational data, the LEA has an obligation to perform a comprehensive assessment.

The evaluation procedures to identify the proper placement of a child are set forth in the regulations. These evaluations cannot be conducted without prior notice and parental consent.14 In addition, the evaluation must include testing on all aspects of the suspected disability.15 The tests and other evaluation materials must be provided in the child’s native language or other mode of communication, unless it is clearly not feasible to do so; must have been validated for the specific purpose for which they are used; and must be administered by trained personnel in conformance with the instructions provided by their producer.16 No test may be used as the sole criterion for determining an appropriate educational program for a child.17

The evaluation is made by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the suspected disability. In addition, if the child is suspected of having a learning disability, the multidisciplinary team must include the child’s regular teacher, or if the child does not have a regular classroom teacher, a classroom teacher qualified to teach a child of her age.18 For children of less than school age, § 540 regulations provides that a teacher qualified by the state educational agency (SEA), and at least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher, must be present.

After concluding the testing and compiling and interpreting the evaluation data, in order to make a placement decision the team must draw upon information from a variety of sources, including achievement and aptitude tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior. The testing and evaluation data and the information drawn from the various sources must be documented. The decision for placement must be made by the multidisciplinary group, which must include parents knowledgeable about the child and persons knowledgeable about the meaning of the evaluation data and the placement options, to ensure that the placement is made in conformity with the regulations.19

If a determination is made that a child has a disability and needs special education, an Individualized Education Program (IEP) must be developed. The IEP documents what services are to be provided to the child. The program must be specifically designed to fit the individual child’s needs. The initial placement must be with written parental consent.

The IEP

Within 30 days of the determination that a child is in need of special education, a meeting to develop an IEP must be conducted.20 Participants at this meeting must include a representative of the school district (other than the child’s teacher) who is qualified to provide or supervise the provision of special education; the child’s teacher; one or both of the child’s parents; the child, if appropriate; other individuals at the discretion of the parent or the school district; and a member of the multidisciplinary team that evaluated the child (or else the district must ensure that the representative of the district, the child’s teacher, or some other person who is present at the meeting is knowledgeable about the evaluation procedures).21

The IEP must include a statement of the child’s present levels of educational performance; a statement of annual goals, including short-term instructional objectives; a statement of the specific special educational and related services to be provided to the child and the extent that the child will be able to participate in regular educational programs; the projected dates for initiation of services and the anticipated duration of services; and appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short-term instructional objectives are being achieved.22

While § 350 provides that each public agency is responsible for providing special education and related services in accordance with an IEP, the IDEA in part B does not require that any agency, teacher, or other person be held accountable if the child does not achieve the growth projected in the annual goals and objectives.

Inclusion and Integration

The IDEA stresses the principles of inclusion and integration, consistent with the requirement that children with disabilities be educated in the least restrictive environment (LRE). The IDEA mandates that to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, should be educated with children who are nondisabled; and that 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 is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.23 The placement of a child with a disability must be determined annually, be based on the child’s IEP, and be as close as possible to a child’s home.24

Gone are the days when you do not see children with disabilities in schools. In my youth, I never recall seeing a Down’s child in school. Those children were institutionalized or kept at home. I believe that this is a tremendously positive change not only for disabled children but also for nondisabled children. Exposure to children with disabilities has, for the most part, made other children more understanding and tolerant of these "different" children.

The IDEA requires that children with disabilities be integrated in nonacademic as well as academic situations. In providing for nonacademic and extracurricular activities, including meals, recess periods, and other services such as counseling, athletics, health services, recreational services, and special interest groups or clubs sponsored by the school, the school district ensures that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.25

Due Process and Confidentiality

Some of the most significant provisions of the IDEA deal with due process rights and confidentiality. The Family Educational Rights and Privacy Act of 197426 (FERPA) relates to the collection, dissemination, and confidentiality of student records and information. FERPA provides that the school district may determine what is personally identifiable information regarding students. Personally identifiable information is not necessarily confidential and may be disclosed under FERPA.

The IDEA requires that parents be given notice of their rights under FERPA to maintain the confidentiality of the children’s records.27 In addition, parents have the right to inspect and review any education records relating to their children that are collected, maintained, or used by the school district. The school district must comply with such a request without unreasonable delay and before any meeting regarding an IEP or any hearing relating to identification, evaluation, or educational placement of the child; or the provision of free, appropriate, public education to the child; and in no event more than 45 days after the request has been made. These rights include the right to have the school district provide copies of the records (in certain situations), and to have a representative of the parents (lawyer) inspect the records.28

With regard to due process, the IDEA is clear that parents should have significant involvement in the educational decisions that are made with regard to their disabled children. I have discussed the need to give parents notice before beginning an evaluation, as well as notice of an IEP meeting. Parents also must give written consent before an evaluation is conducted and before an IEP is put into place.

In addition, notice by the educational agency must be given to parents when the school district refuses to initiate an evaluation or change the identification or educational placement of the child, or to initiate the provision of a free, appropriate public education to the child.29 Parents may refuse to consent to an evaluation or to a placement of their child in special education.

Appeals

Either a parent or a school district may initiate a hearing (appeal) because of a parent’s refusal to consent to an evaluation or a placement of a child into an IEP, or to agree to a change in placement; or because of the school district’s refusal to place a child into a special education program, change a placement, or fail to comply with the IEP. Mediation is an alternative; however, it is not mandated by the regulations. This hearing must be conducted by an impartial hearing officer who is not an employee of the school district that is involved in the education of the child, or by someone who does not have a personal or professional conflict of interest.30

Any party to the hearing has the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities. Either party may present evidence; confront, cross-examine, and compel the attendance of witnesses; and prohibit the introduction of evidence that has not been disclosed to that party at least five days before the hearing. In addition, the parties have the right to obtain written findings and a written decision.

After the decision has been rendered, and after the school district has deleted any personally identifiable information, the school district shall transmit the decision to the state advisory panel established under the regulations.31 The findings and decisions may be made available to the public. Parents have the right to have the child present and open the hearing to the public.32 The initial hearing must be conducted within 45 days of the request for a hearing.

A party aggrieved by the decision of the hearing officer has the right to appeal the decision to the SEA. The regulations do not proscribe an exact time for the taking of an appeal. The regulations require that the SEA conduct a review of the entire record, and ensure that the procedures at the hearing were consistent with the requirements of due process. The SEA may seek additional evidence and afford the parties an opportunity for oral and/or written argument at the discretion of the reviewing officer. The reviewing official must make an independent decision within 30 days of the request for review, and transmit copies of the decision to the parties. After removing all personally identifiable information, the official then transmits the decision to the state advisory agency.33 Finally, after the administrative appeal has been exhausted, the IDEA provides that any party who is still aggrieved may bring a civil action under IDEA § 615(e)(2). In any civil action brought under § 615(e)(2), the court may award the parents reasonable attorney fees under the circumstances specified in IDEA § 615(e)(4).34

Surrogate Parents

Many children with disabilities also suffer from neglectful or abusive parents who are not, by choice or otherwise, involved in educational decisions affecting their children. To provide for these situations, the IDEA provides for the appointment of surrogate parents. The appointment of a surrogate parent may occur when no parent can be identified, when the whereabouts of a parent cannot be discovered, or when the child is a ward of the state. The IDEA protects the independence of the surrogate parent by requiring that the surrogate parent has no conflicts of interest and has knowledge and skills that ensure adequate representation of the child. In addition, the surrogate may not be an employee of the school district. However, the surrogate may be paid by the school district to act as a surrogate.35

Amendments

The 1997 amendments to the IDEA continue and enhance the protection of the original act. In the new IDEA, if a child’s disability has not changed over a three-year period, she will not be subjected to unnecessary reassessment to determine continued eligibility for special education. In addition, the new law recognizes that all children, including those with disabilities, deserve safe and orderly schools. Previously, there were restrictions on the ability of schools to expel students with disabilities for disruptive behavior, where the behavior was a result of the child’s disability. The 1997 amendments now outline the procedures for dealing with disruptive behavior, and if a child brings drugs or weapons, the school has the right to remove her to an alternate educational setting for up to 45 days. During that time, necessary services may not be stopped. The new law also permits schools to ask a hearing officer to remove a child for up to 45 days if the child is considered substantially likely to injure himself or others. Previously, only a court had that authority.

In all states, parents must now be included in groups making eligibility and placement decisions about their children. Previously, in some states, parents only had a right to be included in IEP meetings. The new law also requires that a general education teacher be part of every IEP team. In addition, the amendments emphasize and strengthen the principles of inclusion. The IEP must not only describe the extent to which a child will be integrated but also detail the aids, supports, and accommodations she will receive within the regular curriculum. The IEP team must also consider the use of behavior interventions, strategies, and supports in the case of a child whose behavior impedes his learning or that of others. Finally, teachers and related services personnel must keep parents informed of their child’s progress on a regular basis.36

Legislation Affecting Children with Disabilities

Parents of a child with disabilities worry about medical care and how their child will be able to support themselves. Fortunately, several pieces of legislation may provide some assistance. The Americans with Disabilities Act37 and Rehabilitation Act of 197338 (particularly § 504)39 provide help with accessibility issues. The Developmental Disabilities Assistance and Bill of Rights Act,40 Head Start Act,41 Comprehensive Child Development Act,42 and the Child Care and Development Block Grant Act of 199043 are all pieces of legislation that apply to children with disabilities and may provide resources to assist these children. Also, Medicare, Medicaid, and the Social Security Act provide help with regard to medical and disability benefits issues, but these acts essentially require that your child be a pauper to be entitled to benefits. CL

Notes

1. 20 U.S.C. § 1401 et seq. (1975) and 20 U.S.C. § 871 et seq. (1968).

2. 20 U.S.C. § 1413 (1975).

3. 34 C.F.R. Part 300, Federal Regulations 34 C.F.R. § 17 (a)(1) (1997).

4. 34 C.F.R. § 17(a)(3) (1997).

5. 34 C.F.R. § 16(b)(4) (1997).

6. 34 C.F.R. § 16(a) (1997).

7. 468 U.S. 883 (1984).

8. 34 C.F.R. § 122 (1997).

9. 34 C.F.R. § 7 (1997).

10. See Joint Policy Memorandum, September 16, 1991, 18 IDELR 116 ("Joint Policy Memorandum"); Parker 18 IDELR 963 (OSEP 1992).

11. 34 C.F.R. § 7(a)(2)(i)(ii) (1997).

12. 34 C.F.R. § 220 (1997).

13. See 34 C.F.R. § 7 (1997).

14. 34 C.F.R. § 504 (1997).

15. 34 C.F.R. § 532 (1997).

16. 34 C.F.R. § 523(a) (1997).

17. 34 C.F.R. § 532(d) (1997).

18. 34 C.F.R. § 540 (1997).

19. 34 C.F.R. § 533 (1997).

20. 34 C.F.R. § 343 (1997).

21. 34 C.F.R. § 344 (1979).

22. 34 C.F.R. § 346 (1997).

23. 34 C.F.R. § 550 (1997).

24. 34 C.F.R. § 552 (1997).

25. 34 C.F.R. § 553 (1997); see also 34 C.F.R. § 306 (1997).

26. 20 U.S.C. § 1232g (1974).

27. 34 C.F.R. § 561 (1997).

28. 34 C.F.R. § 562 (1997).

29. 34 C.F.R. § 504 (1997).

30. 34 C.F.R. § 507 (1997).

31. 34 C.F.R. § 508 (1997).

32. Id.

33. 34 C.F.R. § 510 (1997).

34. 34 C.F.R. § 515 (1997).

35. 34 C.F.R. § 514 (1997).

36. Please see Heumann and Hehir, Believing in Children—A great IDEA for the future, Exceptional Parent (September 1997).

37. 42 U.S.C. §§ 12,101 et seq. (1990).

38. 29 U.S.C. § 701 et seq. (1973).

39. 29 U.S.C. § 794 (1973).

40. 42 U.S.C. § 6000 et seq. (1963).

41. 42 U.S.C. §§ 9831-9852 (1981).

42. 42 U.S.C. §§ 9801, 9881-9887 (1981).

43. 42 U.S.C. §§ 9801, 9858, 9858(a)-9858(p) (1990).

     


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