Special Education Law
Any information in these pages regarding the law are not meant to replace legal advice. It is meant only to serve as an introduction for parents who are searching for effective tools to help their children with special needs. Hopefully you will gain enough knowledge to be able to effectively advocate without resorting to the legal process, as such cases can be very long and drawn out. Resolving problems as quickly as possible at the local level is the ideal way. It is always wise to start with the tools necessary to build sound documentation and communication. Then if parents need to go on to formal complaints or the due process route they are well prepared.
Special education law was originally passed over twenty years ago in order to assure all children receive a free, appropriate education. It was a successful experiment in many ways, but children were often segregated from their nondisabled peers in special settings. While well intentioned, the outcomes proved less than desirable for many of the children. Children learn a great deal from each other in the way of communication skills, social skills, and academic role modeling. The mentality of separating children with disabilities from children without disabilities is the prevailing mentality and can present an overwhelming challenge to you as a parent. You must learn all you can about how inclusion could work for your child, as districts appear to be overwhelmingly under knowledgeable and resentful of this new mandate from IDEA.
Individuals with Disabilities Education Act
When the Individuals with Disabilities Education Act, known as IDEA was reauthorized in 1997, a number of changes were included. Parents are now to participate in any and all meetings where education decisions are made for their child. Districts must show a documented good faith effort to notify parents of meetings and to encourage their participation. Parents are to be presented with Prior Written Notice after the meeting that details all the recommendations and whether they were accepted, rejected, and why. Districts must detail what supports and services were tried in the regular ed setting before a more restrictive setting was considered.
Meetings must be at a time and place convenient for both parent and school. Children are to be educated in the same setting as their nondisabled peers to the maximum extent possible, with all necessary supports and services delivered in that setting. We are beginning to see more team teaching, with special ed teachers collaborating with regular ed teachers. Of course there are always circumstances where a child may not be able to succeed in the regular setting all the time. The law requires a full continuum of placement settings to meet all needs.
Parents of children with ADHD can breath a little easier, for IDEA 1997 finally recognizes and includes Attention Deficit Hyperactivity Disorder as one of the recognized disabilities, including limited alertness that may arise from hyperactivity or an inability to attend for any length of time.
If a child's academic progress is seriously impacted by a disability then there should be a referral for an educational assessment. This assessment should be conducted by a "multidisciplinary team" made up of several individuals with expertise in different areas, one of whom has expertise in the area of disability. There can be no one-test assessment, or all tests conducted by just one person. The law is clear on this point.
The more you learn about special ed law the more effective you will be as a team member and as an advocate for your child. My Links page will take you to some fine sites that have the entire law and regulations. Pete and Pam Wright's site at wrightslaw.com is a very comprehensive, parent friendly site with the law, interpretations, and cases. They also have great advocacy material. I suggest you bookmark it for future reference.
504 Rehabilitation Act
504 of the Rehabilitation Act is a civil rights education law administered by the Office for Civil Rights. This law covers any type of discrimination. It is important for you to know that it also states that anyone who receives federal funds cannot discriminate against a person who has a disability. (While the term disability is preferred to the word handicap, the law was written in the seventies and actually contains the term "handicap".) Requirements of the law that you should know are:
- That handicapped persons, regardless of the nature or severity of their handicap, be provided a free appropriate public education.
- That handicapped students be educated with nonhandicapped students to the maximum extent appropriate to their needs.
- That educational agencies undertake to identify and locate all underserved handicapped children.
- That evaluation procedures be improved in order to avoid the inappropriate education that results from the misclassification of students.
- That procedural safeguard be established to enable parents and guardians to influence decisions regarding the evaluation and placement of their children.
The law also says "These requirements are designed to ensure that no handicapped child is excluded from school on the basis of handicap and, if a recipient demonstrates that placement in a regular educational setting cannot be achieved satisfactorily, that the student is provided with adequate alternative services suited to the student's needs without additional cost to the student's parents or guardian." Therefore, if a district cannot meet the needs of a child within its district and requires an alternative education, the school district is responsible for paying for that education.
Under both laws every child is entitled to a free appropriate education, or FAPE. That means the child's education must be "meaningful", in other words not just a token effort. It does not guarantee what progress the child will make; however, it does mean the district must make a good faith effort to see that the child makes progress. Another interpretation says appropriate means "an education comparable to the education provided to students without disabilities."
"Handicapped person" means any person who has a physical or mental impairment which substantially limits one or more "major life activities", has a record of such an impairment, or is regarded as having such an impairment. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. "Learning" is a keyword here for many children, particularly those with invisible conditions such as learning disabilities or Attention Deficit Hyperactivity Disorder. Accommodations can be requested for a child with a disability that impacts his or her education.
Accommodations might include shortened assignments, note takers, preferential seating, oral or alternative testing, regular use of a computer, use of a calculator, etc. 504 requires the district to provide an individualized program "designed to provide educational benefit". While an IEP does not have to be written for a child with a 504 plan, a school has the option of writing one, so that everyone knows what is required to help this child be successful. It can also afford protection for behaviors that are related to the disability through the thoughtful development of a positive behavior plan and possibly an alternative discipline plan. This law is often enough to enable a child to receive the accommodations and modifications needed for academic success.
However, if a child's disability impacts him/her seriously enough to require special services, such as special education teachers, therapists, or a dramatic divergence from the regular education program, then the child may fall under the protection of the Individuals with Disabilities Education Act, or IDEA. To qualify, a child must be referred for an educational evaluation by a multidisciplinary team, meaning several people with expertise in different areas. While services could be received under 504, it is an unfunded program, so districts are most likely to cover the child under IDEA.
Always remember that knowledge is power.
