IDEA: What Legally Protects the Rights of Children with Disabilities (page 6)
Public Law (P.L.) 94-142, the Education for All Handicapped Children Act, was passed by Congress in August 1975, grandfathered by the antidiscrimination law Brown v. Board of Education of Topeka Kansas (1954), under which African Americans sought admission to public schools on a nonsegregated basis. Before 1975, there was no national legislation covering the evaluation and education of students with disabilities. Public Law 94-142 was later reinterpreted or reauthorized in 1990 as IDEA; additional provisions were added in 1997 and most recently in the IDEA Improvement Act of 2004 with provisions effective July 1, 2005. IDEA is the main federal law that provides for the education of disabled youth ages 3 to 21 years and was extended downward from birth to 3 years by P.L. 99-457 amendments.
IDEA provides federal financial assistance so that state and local education agencies have additional funding for identified students. IDEA is the funding act for special education. The purpose of federal assistance is to support a free and appropriate public education (FAPE) for students with disabilities. A FAPE includes the rights of appropriate assessment and identification (i.e., protection against discriminatory assessment and the rights of due process of assessment, placement, and programming procedures) and appropriate education (i.e., a program designed to provide “educational benefits” and related services, if necessary, in order for the students to benefit from specially designed instruction).
If the parent disagrees with the school’s evaluation and the hearing officer concurs, there is a provision for independent educational evaluation at district expense. Parents may also initiate due process procedures under IDEA and address the nonprovision of a FAPE. IDEA is enforced by the U.S. Office of Special Education Programs, and compliance is monitored by state departments of education.
IDEA delegates specific responsibilities to local school systems to locate and educate children with disabilities. If the school system has reason to suspect that the child has a disability (e.g., indicated by comments in the report card) but fails to act by referring the child for a comprehensive special education evaluation, they have failed in their obligation to find, evaluate (the “Child-Find Mandate”), and provide a FAPE for a child with a disability. House Resolution 1350 (2004) provided further clarification on this issue. That is, parents must have put into writing to school personnel that their child needs special education services (with an exception of an illiterate parent or a parent with a disability). Clearly, school systems are not responsible for providing a FAPE when parents have refused evaluation for services or the child’s evaluation failed to document a disability.
The plan for delivering special education and related services is called an IEP. A child is to be provided with an IEP if he or she is found to be eligible for special education services. An IEP is a legal document, and general education teachers must have a copy of and comply with it for those students in their classes who are receiving special education services. The IEP represents accountability; it defines the responsibilities of the school. The school is legally bound to provide only those adaptations or accommodations listed in the IEP. The IEP allows students to benefit from their available public educational programs and takes the responsibility for learning and places it within the educational system (specifically on the case conference committee) rather than blaming students with disabilities for their failure to learn.
General educators may not always be aware of the importance of compli-ance. In one legal case in a 1992 civil jury trial (Doe v. Withers, Civil Action No. 92-C-92: http://www.wrightslaw.com/law/caselaw/case_Doe_Withers_Complaint.html), a general education teacher refused to do oral testing with a child for whom oral testing was specified in the IEP. The teacher was sued for failure to comply with the terms of the IEP. The outcome of that case was that this teacher had to pay $15,000, his own legal fees, and the legal fees for the complainants.
The IEP is developed by a multidisciplinary team including the child’s parents, at least one special educator, at least one general educator or, where appropriate, (i.e., not required at a team meeting), a representative of the local educational agency (qualified to supervise or provide specialized designed instruction and knowledgeable about the general curriculum and resources), an individual who can interpret and provide implications for evaluation results at the discretion of the parent or agency, others who have knowledge or expertise regarding the child or related services, and, when appropriate, the student at the elementary, middle, and secondary levels (House Resolution [H.R.] 5, pp. 131–132). Reauthorization H.R. 1350 (signed into law in 2004) modifies the requirements of team participation at team meetings. That is, if the parent so designates in writing, all members of the IEP team are not required to attend all or part of the IEP meetings where their input is unnecessary or has already been gathered and integrated into the written IEP document.
An IEP contains information about the child’s current level of educational functioning, annual goals and objectives, a listing of special services to be provided (e.g., transportation, occupational therapy), projected start and review dates for services, and how the child’s progress will be measured. Where progress is not being made, different materials or methods must be implemented. School systems often use goals that are based on their state standards.
Reauthorization H.R. 1350 (2004) also modifies the frequency of the IEP’s reevaluation from 1 to 3 years and changes the evaluation focus to annual goals rather than objectives. Reevaluation may not occur more than once a year but must occur every 3 years unless otherwise ageed on by the parents and the local educational agency. With this change from yearly to multiyear IEPs, measurable annual goals must coincide with natural transition points for the child and a description of the process for review and revision of the multiyear IEP must be included. For example, a review would be conducted by the IEP team at each of the child’s natural transition points (from preschool to elementary, elementary to middle school, and so on) and an annual review would be done to determine current progress toward annual goals with a provision for amendments to the IEP to help the child meet the annual goals. In turn, H.R. 1350 modifies reporting information to parents on the child’s progress from specific objectives to reporting on progress toward the end-of-year goals (e.g., through the use of quarterly or other periodic reports, concurrent with use of report cards). H.R. 1350 further stipulates that the parent and local educational agency may agree to amend the IEP in writing when changes are indicated rather than convene an IEP meeting. On request, the parent will be provided with a revised copy of the IEP with the amendments incorporated.
Assistance and services are defined by what is required for students with disabilities to achieve parity with nondisabled peers. With reauthorization of IDEA in 2003, states must now report the number of children who are provided with accommodations—comparing their performance with the achievement of nondisabled students. With the reauthorization of IDEA in 2004, states must also have policies and procedures prohibiting schools from requiring a child to obtain prescription medications (specifically “psychotropic medications”) as a condition of attending school or receiving services.
IDEA also requires the student to be educated in the least restrictive educational environment (LRE) with his or her nondisabled peers to the maximum extent possible. The case conference committee determines the LRE placement for the child, including consideration of the educational and social benefits available to this child in the general education classroom with supplemental services in comparison to the benefits available in special settings. Special classes, separate schooling, or the removal of students (restrictive educational environments) occurs only when it can be documented that learning cannot be satisfactorily achieved in the general education environment, even with supplementary aids and services.
The team also considers the degree to which the child’s disruptiveness interferes with the education of students both with and without disabilities. When making that consideration, team members must keep in mind that average students in classrooms with students with disabilities had (a) achievement that was as good as the achievement of students in classes without students with disabilities (Salisbury, 1993), (b) more positive attitudes toward students with disabilities (California Research Institute, 1992), and (c) improved social and problem-solving skills and self-concept for both disabled and nondisabled groups.
Placement decisions are written into the IEP as part of the individualized goals and objectives. The case conference committee can place a child with attention deficit hyperactivity disorder (ADHD) who was eligible for services under the other health impaired (OHI) category of IDEA, within other categorical settings (e.g., a learning disabilities classroom), or within a multicategorical resource setting. Because OHI does not have a teacher licensure or a funding weight attached to it, a student with ADHD could be placed with a teacher certified with any of the exceptionalities. Reauthorization H.R. 1350 (2004) lists requirements for special education teachers stipulating that the teacher must (a) hold at least a bachelor’s degree, (b) have a special education certification in the state or passed the state teacher licensing exam, and (c) not be teaching on an emergency, temporary, or provisional basis.
If the setting selected is outside the general classroom, opportunities must exist for the student to interact with nondisabled peers to the maximum extent possible. Thus, when students with ADHD receive services in special education settings, they often receive general education with their peers in nonacademic subject areas (e.g., art, physical education).
In practice, students with inattentiveness but not hyperactivity are placed more often in learning disabilities classes, whereas students with hyperactivity are placed in classes for students with behavioral disorders (Barkley, DuPaul, & McMurray, 1990). Placement within these programs makes it essential that teachers who have categorical training understand the differences between students with ADHD and students with learning disabilities and/or emotional and behavioral disorders. When parents of children with ADHD decide that the schools are not providing their children with an appropriate education, they can turn to the legal system to obtain appropriate services.
When services were not forthcoming, parents have placed their children into private schools, obtained outside services, and successfully sued to obtain a reimbursement of these costs. To these ends—and more typically to contribute to the planning of an IEP —parents may need to establish and maintain a record.
© ______ 2006, Merrill, an imprint of Pearson Education Inc. Used by permission. All rights reserved. The reproduction, duplication, or distribution of this material by any means including but not limited to email and blogs is strictly prohibited without the explicit permission of the publisher.
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