The Individuals with Disabilities Education Act (IDEA) is a United States federal law that governs how states and public agencies provide early intervention, special education, and related services to children with disabilities. It addresses the educational needs of children with disabilities from birth to age 18 or 21 in cases that involve 14 specified categories of disability.
The IDEA is "spending clause" legislation, meaning that it only applies to those States and their local educational agencies that accept federal funding under the IDEA. While States declining such funding are not subject to the IDEA, all States have accepted funding under this statute and are subject to it.
The IDEA and its predecessor statute, the Education for All Handicapped Children Act, arose from federal case law holding the deprivation of free public education to disabled children constitutes a deprivation of due process. It has grown in scope and form over the years. IDEA has been reauthorized and amended a number of times, most recently in December 2004, which contained several significant amendments. Its terms are further defined by regulations of the United States Department of Education, which are found in Parts 300 and 301 of Title 34 of the Code of Federal Regulations.
In defining the purpose of special education, IDEA 2004 clarifies Congress’ intended outcome for each child with a disability: students must be provided a Free Appropriate Public Education (FAPE) that prepares them for further education, employment and independent living.
Under IDEA 2004:
Special education and related services should be designed to meet the unique learning needs of eligible children with disabilities, preschool through age 21.
Students with disabilities should be prepared for further education, employment and independent living.
Background
Before the Education for All Handicapped Children Act was enacted in 1975, U.S. public schools accommodated only 1 out of 5 children with disabilities. Until that time, many states had laws that explicitly excluded children with certain types of disabilities from attending public school, including children who were blind, deaf, and children labeled "emotionally disturbed" or "mentally retarded." At the time the EHA was enacted, more than 1 million children in the U.S. had no access to the public school system. Many of these children lived at state institutions where they received limited or no educational or rehabilitation services. Another 3.5 million children attended school but were “warehoused” in segregated facilities and received little or no effective instruction.
As of 2006, more than 6 million children in the U.S. receive special education services through IDEA.
Historical context
In 1954, the established educational format in the United States of segregating black and white students into separate schools was deemed unconstitutional by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). This caused a great deal of unrest in the political sphere and marks a gateway moment in the Civil Rights Movement. Education was an important aspect of the Civil Rights Movement.
The years that led up to the formation of Education for All Handicapped Children Act of 1975 were marked by strife in the United States. The assassination of John F. Kennedy in 1963, the Vietnam war was ongoing from 1955 until 1975. On top of those events, the Civil Rights Movement was in full force in the United States. From schools being integrated to the Montgomery Bus Boycott, from Greensboro sit-ins to marches on Washington, equal rights for all was a prevalent ideal. President Kennedy showed interest in mental retardation studies and President Johnson used Federal funds to increase research on “at-risk” youth. Early intervention programs for children living in low socioeconomic situations, such as the Head Start Program, began showing up around the country. Education was soon at the forefront of many political agendas.
In 1971 four moms from Washington State (Janet Taggart, Katie Dolan, Cecile Lindquist and Evelyn Chapman) wrote and passed into law, the first special education civil rights legislation in the US, called Education for All (HB 90) giving students with disabilities equal access to a public school education. The framework of Washington State HB 90 was used to create the Federal IDEA Law.
Another educational sector to argue for access to equal educational opportunities for all students was the Pennsylvania Association for Retarded Children (PARC), which sued Pennsylvania in 1972 for not providing equal access to educational opportunities to children with disabilities. Soon after this, the Rehabilitation Act of 1973 established that Federal programs could not discriminate on the basis of disabilities. However, the Rehabilitation Act of 1973 forced parents to take any cases to the court system. The Education for All Handicapped Children Act created the option for parents to use an administrative hearing instead, which could decrease the litigation costs associated with filing a claim. Parents retain the right to appeal to a federal or state court. The EHA also created a specific affirmative right to a free appropriate public education in the least restrictive environment for children with disabilities.
27 years later, in 1990, the EHA was replaced by the Individuals with Disabilities Education Act in order to place more focus on the individual, as opposed to a condition that individual may have. The IDEA also had many improvements on the EHA, such as promoting research and technology development, details on transition programs for students post-high school and programs that educate children in their neighborhood schools, as opposed to separate schools.
Provisions of IDEA
Eligibility for services
Having a disability does not automatically qualify a student for special education services under the IDEA. The disability must result in the student needing additional or different services to participate in school.
IDEA defines a "child with a disability" as a "child... with an intellectual disability, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance..., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; AND, who... [because of the condition] needs special education and related services."
Children with disabilities who qualify for special education are also automatically protected by Section 504 of the Rehabilitation Act of 1973 and under the Americans with Disabilities Act (ADA). However, all modifications that can be provided under Section 504 or the ADA can be provided under the IDEA if included in the student's IEP.
Students with disabilities who do not qualify for special education services under the IDEA may qualify for accommodations or modifications under Section 504 and under the ADA. Their rights are protected by due process procedure requirements.
The zero reject rule was affirmed in Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.1985) and Timothy W. v. Rochester School District 875 F.2d 954 (1st Cir. 1989). The courts have ruled that even if the student is completely incapable of benefiting from educational services and all efforts are futile—even if the child is unconscious or in a coma—the school is still required to provide educational services to the child.
Individualized Education Program
The act requires that public schools create an Individualized Education Program (IEP) for each student who is found to be eligible under both the federal and state eligibility/disability standards. The IEP is the cornerstone of a student's educational program. It specifies the services to be provided and how often, describes the student's present levels of performance and how the student's disabilities affect academic performance, and specifies accommodations and modifications to be provided for the student.
An IEP must be designed to meet the unique educational needs of that one child in the Least Restrictive Environment appropriate to the needs of that child. That is, the least restrictive environment in which the child learns. When a child qualifies for services, an IEP team is convened to design an education plan. In addition to the child’s parents, the IEP team must include at least one of the child’s regular education teachers (if applicable), a special education teacher, someone who can interpret the educational implications of the child’s evaluation, such as a school psychologist, any related service personnel deemed appropriate or necessary, and an administrator or CSE (Committee of Special Education) representative who has adequate knowledge of the availability of services in the district and the authority to commit those services on behalf of the child. Parents are considered to be equal members of the IEP team along with the school staff. And of course, parents have fundamental rights as parents. Based on the full educational evaluation results, this team collaborates to write an IEP for the individual child, one that will provide a free, appropriate public education. The required content of an IEP is described in Individualized Education Program.
Related services
The definition of related services in the IDEA includes, but is not limited to: transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, music therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and *mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
Free Appropriate Public Education
Guaranteed by the Individuals with Disabilities Education Act (IDEA), FAPE is defined as an educational program that is individualized to a specific child, designed to meet that child's unique needs, and from which the child receives educational benefit. To provide FAPE, schools must provide students with an “… education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”
Some of the criteria specified in various sections of the IDEA statute includes requirements that schools provide each disabled student an education that:
~ Is designed to meet the unique needs of that one student
~ Provides “ …access to the general curriculum to meet the challenging expectations established for all children” (that is, it meets the approximate grade-level standards of the state educational agency)
~ Is provided in accordance with the Individualized Education Plan (IEP) as defined in 1414(d)(3). Results in educational benefit to the child.
Least Restrictive Environment
The U.S. Dept. Education, 2005a regulations implementing IDEA states: "...to the maximum extent appropriate, children with disabilities including children in public or private institutions or care facilities, are educated with children who are nondisabled; and special classes, separate schooling or other removal of children with disabilities from regular educational environment occurs only if 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."
Simply put, the LRE is the environment most like that of typical children in which the child with a disability can succeed academically (as measured by the specific goals in the student's IEP). This refers to the two questions decided upon in Daniel R. R. v. State Board of Education, 874 F.2D 1036 (5th Cir. 1989).
This court, relying on Roncker, also developed a two-part test for determining if the LRE requirement is met. The test poses two questions:
~ Can an appropriate education in the general education classroom with the use of supplementary aids and services be achieved satisfactorily?
~ If a student is placed in a more restrictive setting, is the student "integrated" to the "maximum extent appropriate"? (Standard in AL, DE, GA, FL, LA, MS, NJ, PA, TX).
Discipline of a child with a disability
Pursuant to IDEA, when disciplining a child with a disability, one must take that disability into consideration to determine the appropriateness of the disciplinary actions. For example, if a child with Autism is sensitive to loud noises, and she runs out of a room filled with loud noises due to sensory overload, appropriate disciplinary measure for that behavior (running out of the room) must take into account the child's disability; such as avoiding punishments that involve loud noises. Moreover, an assessment should be made as to whether appropriate accommodations were in place to meet the needs of the child.
According to the United States Department of Education, in cases of children with disabilities who have been suspended for 10 or more days for each school year (including partial days), the local education agency (LEA) must hold a manifestation determination hearing within 10 school days of any decision to change the placement of a child resulting from a violation of code of student conduct. The Stay Put law states that a child shall not be moved from his or her current placement or interim services into an alternative placement if the infraction was deemed to cause danger to other students. The LEA, the parent, and relevant members of the individualized education program (IEP) team (as determined by the parent and LEA) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was:
~ Caused by, or had a direct and substantial relationship to, the child's disability; or
~ The direct result of the LEA's failure to implement the IEP.
If the LEA, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the child’s disability, the IEP team shall:
~ Conduct a functional behavioral assessment and implement a behavioral intervention plan for such child, provided that the LEA had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in Section 615(k)(1)(C) or (G);
~ In the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
~ Except as provided in Section 615(k)(1)(G), return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavior intervention plan.
If it is determined that a student's behavior is a manifestation of his or her disability, then he or she may not be suspended or expelled. However, under IDEA 2004,if a student "brings a weapon to school or a school function; or knowingly possess, uses, or sells illegal drugs or controlled substances at school or a school function"; or causes "serious bodily injury upon another person," he or she my be placed in an interim alternate educational setting (IAES) for up to 45 school days. This allows the student to continue receiving educational services while the IEP team has time to determine the appropriate placement and the appropriate course of action including reviewing the FBA and the BIP.
Prohibition on mandatory medication
Due to allegations that school officials coerced parents into administering psychotropic medication such as Ritalin to their child, an amendment to the IDEA was added called prohibition on mandatory medication. Schools may not require parents to obtain a controlled substance as a condition of:
~ attending school
~ receiving an evaluation or reevaluation
~ receiving special education services
Child Find
For infants/toddlers with disabilities and/or developmental delay, the state's designated lead agency for Part C early intervention is responsible for educating the public about early intervention services and how to refer. In most states, any individual (including the parent) may make a referral if a delay is suspected. Primary referral sources, generally, neonatal care hospital staff, pediatric professionals, day care workers, etc. are required under IDEA to refer an infant or toddler suspected of having a disability or developmental delay as soon as possible but no later than seven days after identification. Public service agencies involved with families in crisis also refer children for intervention who have been involved in a substantiated case of child abuse or neglect as defined in section 320 of the Family Violence Prevention and Services Act, 42 U.S.C. 10401, et seq. Despite regulations intended to address the needs of infants and toddlers with disabilities or delays, less than half of all eligible children are referred for services.
When a toddler who is receiving early intervention services under Part C of IDEA approaches his/her third birthday, the early intervention program sends the LEA - the local educational agency (in most states, regional educational cooperatives) as well as the SEA - the state educational agency (the department of education) a list of the children receiving early intervention services who are potentially eligible for early childhood special education services under Part B of IDEA. LEA and SEA notifications are required under IDEA CFR 303.209(b).
Public schools work in collaboration with the early intervention lead agency to coordinate "child find" through inter-agency agreements required under IDEA. Public school districts are responsible for providing supportive educational services for all students with disabilities who qualify for special education services and who reside in their district, regardless of whether they are attending public schools, since private institutions may not be funded for providing accommodations under IDEA.
Procedural safeguards
IDEA includes a set of procedural safeguards designed to protect the rights of children with disabilities and their families, and to ensure that children with disabilities receive a FAPE. The procedural safeguards include the opportunity for parents to review their child's full educational records; full parent participation in identification and IEP team meetings; parent involvement in placement decisions; Prior Written Notice; the right of parents to request independent educational evaluations at public expense; Notice of Procedural Safeguards; Resolution Process; and objective mediation funded by the state education agency and impartial Due Process Hearings. IDEA guarantees the following rights to parents:
~ Right to be informed in writing of the Procedural Safeguards (There is a booklet)
This booklet is to be provided in the following instances * On the first complaint or request for an evaluation
~ Upon the request of a parent or guardian
~ If a complaint is filed with the department of education
~ Upon your child having their school changed as a result of disciplinary action against your child
The professional safeguard booklet titled, Whose Idea Is This? A Parent’s Guide to the Individuals with Disabilities Education Improvement Act of 2004 outlines the expectations and responsibilities of the parents as well as the expectations and legal responsibilities of the teachers, administration and school district.
~ Right to review all educational records.
~ To be equal partners on the IEP team, along with the school staff. To participate in all aspects of planning their child’s education.
~ To file complaints with the state education agency
~ Request mediation, or a due process hearing
~ At this time, parents may present an alternative IEP and their witnesses (experts and others), to support their case.
~ These hearings are Alternative Dispute Resolution (ADR) hearings and can be appealed. This is not a trial.
The entire goal of this process is to make the evaluation and, if needed, implementation of an IEP a joint venture between the students guardians and the school, with the goal of providing the education services needed to aid instruction in a general classroom setting, or other setting if needed. The booklet outlines a seven step process to determine a student’s educational needs and the services that they require:
~ Request for assistance: Parents may contact the schools to discuss potential learning concerns that they may have and the school contacts home if they believe the child is struggling due to a disability.
~ Request for evaluation: Here a parent may request, in writing, for a formal evaluation of the student with the school to determine if the student has any educational disabilities.
~ Evaluation: Students are typically evaluated on the following items, although additional areas can be examined upon parent or school request: Health, vision, hearing, social and emotional development, general intelligence, academic performance, communication abilities and motor abilities.
~ Development of an IEP: In accordance with the findings of the evaluation and in joint collaboration between parents and school a plan of action to aid the student is created. At this time a parent must also provide consent to the plan and guidelines that are created as part of the IEP
~ Annual Review: As part of IDEA it is mandated that a child’s IEP is reviewed at least once a year. This is a chance for parents and school personal to comment on the effectiveness of the plan and to decide on an appropriate future course of action.
~ Re-evaluation: Allows for a student to have their educational needs reassessed by school personal if a parent does not agree with the findings of the initial evaluation
~ Independent educational evaluation: This is a parent action that informs the school that they disagree with the school's evaluation of their child. From here it may be required that an independent, non-school affiliated team, evaluates the child in order to determine the child’s educational needs.
Early intervention
The Education for all Handicapped children Act of 1975 started the course of action for early intervention programs. In this act, public schools that received federal funding were required to provide equal access to education for children with disabilities.
On September 6, 2011, the US Department of Education updated the IDEA to include specific interventions for children of ages 2 and under that have disabilities. This section of the IDEA is entitled Part C and serves children with developmental delays or children that have conditions that may lead to developmental delays in the future. Part C is a $436 million initiative that will be administered at the state level.
On September 28, 2011, the Department of Education published an article in the Federal Register detailing the updates that have been made to Part C of the IDEA. The regulations are effective on October 28, 2011. Major changes in the regulations are detailed below:
~ The definition of multidisciplinary has been revised to respect aspects of an updated individualized family service plan (IFSP) team.
~ Native language is the language normally used by the parents of the child for any child that is deemed limited English proficient
~ State’s applications to must include how the State plans to follow the payor of last resort requirements in Section 303.511
~ Distinguishes between pre-referral, referral, and post-referral IFSP activities such as screening, evaluations, assessments, IFSP development, etc.
~ Specifies that early identification information in provided in the native languages of various population groups in the State
~ State must report to the public the performance of each Early Intervention System program in relation to the State’s Annual Performance Report
More specific details on Early Intervention requirements are found below.
Part C of IDEA
An Individualized Family Service Plan (IFSP) is a strengths-based plan of care for the infant/toddler with a developmental delay or disability. The plan is based on a child and family assessment of strengths and needs as well as the results of multidisciplinary evaluations administered by qualified professionals meeting their state's certification guidelines. The IFSP is similar to an IEP in that it addresses specific services, who will provide them and when/where, how often, etc. and the plan is monitored and updated frequently. Unlike an IEP, however, the IFSP addresses not only the needs of the child but also the needs of the family to meet their family goals and specified outcomes as related to assisting in their child's development. All infants and toddlers receiving early intervention services under Part C of IDEA are required to have an IFSP in order to receive services. Part C of IDEA is the program that awards grants to every state in the United States to provide early intervention services to children from birth to age 3 who have disabilities and to their families. Part C of IDEA also allows states to define "developmental delay" (either as a standard deviation or a percent delay in chronological months) for eligibility. States provide early intervention services to the children who have medically diagnosed disabilities as well as children who exhibit developmental delays. In order to receive funding, participating states must provide early intervention to every eligible child and the respective family, regardless of pay source. Lastly, services from Part C are not necessarily free - early intervention programs, as the payor of last resort, make use of public and private insurance, community resources, and some states implement a "sliding scale" of fees for services not covered by public or private insurance.
Goals for an IFSP
The goal of an IFSP is to assist the family in meeting their child's developmental needs in order to the infant or toddler (birth to age three) to increase functional abilities, gain independence and mobility, and be an active participant in his/her family and community. Another goal of early intervention in general is to improve a child's functional abilities, particularly in the domains of communication, cognitive ability, and social/emotional well-being in preparation for preschool and later kindergarten so that extensive special education services will not be necessary for the child's academic success. Once an infant/toddler is determined eligible (each state sets its own eligibility requirements), the family identifies whom they would like to participate as part of the IFSP team. The Individuals with Disabilities Education Act (IDEA) Part C requires that the IFSP team consist of the family and at least two early intervention professionals from different disciplines (one being the service coordinator) - consistent with CFR §303.343(a)(1)(iv). However, the family may choose to include other members on the team such as the child's pediatrician, an early intervention service provider who may be working with the child, a parent advocate or trusted friend/family member.
The IFSP team works with the family to create a "service plan" to address the deficits of the infant or toddler and to assist the family in meeting their goals for their child's (and family's) development. The team uses information that the family provides as well as the results of at least two evaluations, all available medical records, and the informed clinical opinion of the professionals serving on the IFSP team. An initial IFSP is then created with the family. An IFSP will outline the following:
~ The child's current levels of physical, cognitive, communication, social or emotional, and adaptive development.
~ The family's resources, priorities, and concerns to help in their child's development.
~ The desired end result for the child and for the family (goals/outcomes), as well as the steps needed to achieve said end result (objectives). The plan will be monitored and evaluated quarterly to gauge progress. If the family chooses to revise the goals or the plan, they include updates as revised additions to the plan.
~ The early intervention services for the child and the family. This includes how often and the method of how the child and the family will receive the services.
~ The different environments that the services will be provided in and justification for services not provided in the "natural environment" as defined by IDEA (the location that a child without a disability would spend most of his/her time). For example, the family might have requested to receive services for the child at a day care center or in their home.
~ The date the services will begin and their anticipated duration.
~ The identification of the service coordinator, from the profession most immediately relevant to the infant's or toddler's family's needs, who will be responsible for the coordination and implementation of the plan with the other agencies and persons.
~ For toddlers approaching the third birthday, the IFSP will include a transition plan outlining the steps, activities, and services needed to support the transition of the toddler with a disability to preschool or other appropriate services.
In summary, a key to an effective IFSP is to include outcomes that “address the entire family’s well-being and not only outcomes designed to benefit the child’s development.” For this reason, the IFSP will inherently have goals that are designed for the family as well as for the child. The service coordinator helps the early intervention team of service providers write objectives that meet the family’s priorities and concerns.
Role of the Service Coordinator
All infants/toddlers (and their families) eligible for early intervention services under Part C of IDEA are guaranteed the right to service coordination at no cost to the family (at public expense). An initial service coordinator is assigned to a family upon referral, however, the family has the right of choice and may change service coordinators at any time. Under IDEA, the service coordinator serves as a single point of contact. "Service coordination services include assisting parents of infants and toddlers with disabilities in obtaining access to needed early intervention services and other services identified in the IFSP" [IDEA CFR §303.34(b)(1)]. The service coordinator works with the family and also leads the early intervention team of professionals working with the infant/toddler and family, conducting follow ups and monitoring service provision. The service coordinator will work with the infant/toddler and his/her family until the child turns three and "ages out" of early intervention (except in the few states that have elected to provide early intervention services from birth to five). As early as nine months prior to the toddler's third birthday, the service coordinator works with the family to prepare for transition to another appropriate environment for the child. The transition plan and a transition conference will be completed at least ninety days before the toddler's third birthday. For toddlers receiving early intervention services who are not eligible for early childhood special education services under Part B, the service coordinator will help the family identify other appropriate early childhood learning environments/opportunities/programs in their community (IDEA CFR §303.344(h)).
Federal law (CFR §303.34) lists the ten functions of service coordinators in their work with infants and toddlers who have special needs and their families. These include:
~ Assisting families in obtaining needed services (as well as making referrals, scheduling appointments, etc.)
~ Coordinating early intervention services (social, medical, educational)
~ Coordinating evaluations and assessments and making sure results are explained with family members and that family members receive a copy
~ Facilitating and participating in the development, review, and evaluation of Individualized Family Service Plans (IFSPs)
~ Assisting families in identifying available EIS providers (including making the referral)
~ Monitoring the delivery of services indicated on the IFSP (timely receipt of services)
~ Following up to determine that appropriate services are being provided
~ Informing/educating families of their rights and procedural safeguards
~ Coordinating funding sources for services
~ Facilitating the development of a transition plan to preschool services under Part B or other appropriate services
Differences between IFSP and IEP
When writing the IFSP for a child, the IFSP can (but not always) outline services that are not one of the seventeen mandated early intervention services under Part C of the IDEA. For example, a parent may need counseling services to overcome debilitating depression in order to better care for the infant or toddler, and these services will be written into the family's plan. The IEP (Individualized Education Plan) cannot include services to meet "family goals" but must focus solely on what the child needs to achieve academic success in an educational setting (whether the class or activity is academic or extra-curricular in nature).
The Individualized Family Service Plan is different compared to an Individual Education Plan in other key ways:
~ Eligibility for early intervention (birth to three) under Part C of IDEA is set by each state individually and is often different than eligibility for special education (3-21) under Part B of IDEA.
~ The IFSP will have goals and outcomes for the family and for the infant's/toddler's development.
~ Goals on the IFSP may be in non-academic areas of development such as mobility, self-care, and social/emotional well-being. The IEP has goals and outcomes for the child only and related entirely to his/her ability to adapt to and progress in an educational setting.
~ The IFSP includes services to help a family in natural environment settings (not just in daycare/preschool) but at home, in the community, etc. Services and activities on the IFSP could be tailored to "nap time," "infant swimming lessons at the YMCA," "church outings," etc. The IEP provides services solely on what happens in a pre-school or K-5 school environment or school-sponsored field trip/activity
~ The IFSP team involves a service coordinator who assists the family in developing and implementing the IFSP. The IEP team also involves the family, but the school district generally does not provide a professional who represents them and provides case-management/service coordination. The family will have to communicate with the special education department's designee.
Department of Education Regulations
In addition to the Federal law, the U.S. Department of Education publishes regulations that clarifies what the law means. States may add more provisions to further regulate how schools provide services, but they cannot reverse any provision specifically included in the federal statute.
Alignment with No Child Left Behind
The reauthorization of IDEA in 2004 revised the statute to align with the requirements of the No Child Left Behind Act (NCLB). NCLB allows financial incentives to states who improve their special education services and services for all students. States who do not improve must refund these incentives to the federal government, allow parents choice of schools for their children, and abide by other provisions. Some states are still reluctant to educate special education students and seek remedies through the courts. However, IDEA and NCLB are still the laws of the land to date.
In looking to align NCLB and the 2004 reauthorization of IDEA there are a few key areas of alignment: requirement highly qualified teachers, establishment of goals for students with special needs and assessment levels for these students The alignment of NCLB and IDEA requires that all special education teachers be highly qualified. While the standards for being highly qualified may different between state or school district the minimum requirements are that a teacher holds a bachelor’s degree from a four year college, is certified and licensed to teach by the state and has taken the necessary tests to indicate competency in ones subject area, although special education teachers are often exempt from such testing. These requirements for highly qualified teachers do not always exist for private schools, elementary or secondary. Next, goals and assessments must be provided that align with students educational needs. A state is allowed to develop alternate or modified assessments for students in special education programs but benchmarks and progress must still be met on these tests that indicate adequate yearly progress (AYP). In addition, these goals and assessments must be aligned similarly to students enrolled in general education. Finally, in order to make AYP schools may additionally require that schools met state standards of student retention, in terms of dropout rates and graduate rates for their special education students.
Criticisms
Criticisms from taxpayers
~ There are no exceptions to IDEA: no child is so severely disabled as to not qualify for educational services under IDEA. Even children who are in a permanent vegetative state or suffering from similarly severe brain damage still qualify for a Free Appropriate Public Education. This means that schools can be required to provide "educational" services to children who have no capacity for voluntary movement, no ability to communicate, and no indication that they recognize their own names or their parents' faces.
~ Under the "related services" clause, schools are specifically required to pay for many kinds of medical treatments, including speech therapy, audiology, physical therapy, and nursing, if the medical treatment is expected to help the student's education. There is no requirement that private health insurance be used when available. (A subsequent statutory exception relieved schools of the duty to pay for certain kinds of surgery, such as cochlear implants.)
Criticisms from schools
~ Excessive procedures and paperwork requires teacher time that would be better spent teaching
~ School staff often state beliefs that IDEA protects children and parents but not districts, schools and teachers
~ Parents request services for their children for which their children do not qualify based on local, state and federal guidelines.
Teachers and administrators then often deal with anger from parents who do not understand or do not agree with the regulations by which the school must abide.
~ Providing mandated educational and related services is expensive and reduces schools' ability to educate regular education students
~ Unfunded mandate. When originally passed in 1975, Congress established a maximum funding level for the program of 40 percent of the average per pupil expenditure of American students. This was a rough proxy for the estimated additional cost of educating a student with disabilities. Some have construed this as a promise that the federal government would fund that amount of spending. To date, despite massive increases in Part B funding, Congress has never provided more than 30 percent.
Criticisms from students and parents
~ Parents criticize schools for not following laws in designing and implementing education plans. Enforcement is scarce and ineffective.
~ Impartial Due Process hearing officers are not impartial
~ Districts spend thousands of dollars fighting against parents who want services for their children rather than providing the services, which are often much less expensive than the attorney's fees.
~ Schools and districts may retaliate against families who advocate for their children, sometimes retaliating against the children themselves. Such retaliation may include reporting the special needs child and family to the local state Child Protective Services, sometimes in an attempt to blame the "home environment" as being abusive or neglectful in order to shift blame away from the school for the child's failure to progress or regression at school. The school may claim that there was "evidence" of abuse and neglect, including dirty clothing, holes in clothing, poorly nutritious lunches given to child by parents, child's nosebleeds or a child's self-injurious behavior seen at school. Sometimes schools will report on a special needs child but not his/her non-disabled sibling. These actions often appear to be for retaliation and harassment purposes rather than based in fact.
~ Parents do not know how to prepare an IEP to counter inadequate IEPs prepared by schools.
~ Some students do not obtain effective transition skills and information necessary for when they exit special education, and out into the real world. They are essentially dumped without necessarily any idea of the available community resources, infrastructure, and/or policies.
~ Minorities, particularly African-Americans, are over-identified as having learning disabilities, emotional disturbances, and mental retardation.
African-Americans over-identified with learning disabilities
There is a disproportionate amount of African-Americans in special education juxtapose the general American in school system. Socioeconomic status, geography, and culture play a role in this dis-proportionality among other factors.
There is a strong correlation between socio-economic status and special education diagnosis. Those living in poverty are less exposed to certain societal experiences, and a higher percentage of those living in poverty are African-Americans. Because children living in poverty are less exposed to certain experiences, they are at greater risk for not performing well on exams such as IQ tests. This then makes these students more likely to be referred for special education, and once a referral has been made the placement or admittance into special education services soon follows at high numbers.
There is also a widely held belief that some exams that are administered to determine if a student has a disability are culturally biased and gender biased. There is a body of research that supports this view, although there is also support that not all norm-referenced tests are in fact biased. There can also be a lack of cultural competency between the learning styles of African-American students and their educators & school systems.
Addressing disproportionality
Every state is required under IDEIA to provide data to ensure that disproportionality is not occurring. The issue is that there is no guideline on how that data should be analyzed. The Office of Special Education Programs (OSEP) met in 2003 and 2004 to use risk-ratio and determine its challenges, while also addressing them. Insight on how data is being collected and analyzed can shed light on where and how the dis-proportionality is occurring and how to curtail them if they are.
IDEA 2004 also put in place indicators to prevent the over-diagnosis of students with disabilities The Wisconsin Department of Public Instruction created a Checklist to Address Disproportionality (CADSE) in order to increase awareness of over-diagnosis and put systems in place that prevent the continued cycles of over-identification. An important component of this checklist is cultural competency. Efforts continue to be made on a local, state, and national level to prevent over-identification in special education.
Legal rights
There are resources available to safeguard and protect students and families with disabilities. Parents must be asked if they want their child evaluated for special needs testing. If a parent feels that their child has been misdiagnosed or has been discriminated against for a particular reason including race or language, they have the right to filed with the Office of Civil Rights. There are legal service providers in each state that can be accessed through the National Association of Protection and Advocacy Systems. There are also resources to help parents in understanding their rights through the National Information Center for Children and Youth with Disabilities.
Legislative history
1975 — The Education for All Handicapped Children Act (EAHCA) became law. It was renamed the Individuals with Disabilities Education Act (IDEA) in 1990.
1990— IDEA first came into being on October 30, 1990 when the "Education of All Handicapped Children Act" (itself having been introduced in 1975) was renamed "Individuals with Disabilities Education Act." (Pub. L. No. 101-476, 104 Stat. 1142). IDEA received minor amendments in October 1991 (Pub. L. No. 102-119, 105 Stat. 587).
1997— IDEA received significant amendments. The definition of disabled children expanded to include developmentally delayed children between three and nine years of age. It also required parents to attempt to resolve disputes with schools and Local Educational Agencies (LEAs) through mediation, and provided a process for doing so. The amendments authorized additional grants for technology, disabled infants and toddlers, parent training, and professional development. (Pub. L. No. 105-17, 111 Stat. 37).
2004— On December 3, 2004, IDEA was amended by the Individuals With Disabilities Education Improvement Act of 2004, now known as IDEIA. Several provisions aligned IDEA with the No Child Left Behind Act of 2001, signed by President George W. Bush. It authorized fifteen states to implement 3-year IEPs on a trial basis when parents continually agree. Drawing on the report of the President's Commission on Excellence in Special Education, the law revised the requirements for evaluating children with learning disabilities. More concrete provisions relating to discipline of special education students was also added. (Pub. L. No. 108-446, 118 Stat. 2647).
2009— Following a campaign promise for "funding the Individuals with Disabilities Education Act", President Barack Obama signed the American Recovery and Reinvestment Act of 2009 (ARRA) on February 17, 2009, including $12.2 billion in additional funds.
Judicial interpretations
U.S. Supreme Court decisions
Schaffer v. Weast
On November 14, 2005, the U.S. Supreme Court held in Schaffer v. Weast, 546 U.S. 49, that moving parties in a placement challenge hold the burden of persuasion. While this is an accord with the usual legal thinking, the moving party is almost always the parents of a child.
Arlington v. Murphy
On June 26, 2006 the Supreme Court held in Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, that prevailing parents may not recover expert witness fees as part of the costs under 20 U.S.C.§ 1415(i)(3)(B).
Winkelman v. Parma City School District
On May 21, 2007 the Supreme Court held in Winkelman v. Parma City School District, 550 U.S. 516, that parents have independent enforceable rights under the IDEA and may appear pro se on behalf of their children.
Forest Grove School District v. T.A.
The case of Forest Grove School District v. T.A., 129 S.Ct. 2484, argued before the Supreme Court on April 28, 2009, addressed the issue of whether the parents of a student who has never received special education services from a public school district are potentially eligible for reimbursement of private school tuition for that student under the IDEA. On June 22, 2009 the Supreme Court held that parents of disabled children can seek reimbursement for private education expenses regardless whether their child had previously received special-education services from a public school. By a vote of six to three, the Court held that the Individuals with Disabilities Education Act (IDEA) authorizes reimbursement whenever a public school fails to make a free appropriate public education (FAPE) available to a disabled child.
Cedar Rapids Community School Dist. v. Garret F.
RULE: Continuing nursing services is "related service" that district must provide under IDEA
~ Ventilator-dependent student needs nurse/attendant with him all day and parents want school to pay for this nurse/attendant.
School says no, thinking this isn't a legal obligation (to provide 1:1 nursing).
~ TEST applied (from Tatro)
~ Related service? Yes: help kids benefit from school
~ Medical service exemption? No, school nurse services not covered by exemption (pretty much only services covered by a doctor can be excluded). This is a service which must be paid for by the school. Cost of service is not a factor in determining whether it is required by IDEA. There is no undue burden exemption.
The IDEA is "spending clause" legislation, meaning that it only applies to those States and their local educational agencies that accept federal funding under the IDEA. While States declining such funding are not subject to the IDEA, all States have accepted funding under this statute and are subject to it.
The IDEA and its predecessor statute, the Education for All Handicapped Children Act, arose from federal case law holding the deprivation of free public education to disabled children constitutes a deprivation of due process. It has grown in scope and form over the years. IDEA has been reauthorized and amended a number of times, most recently in December 2004, which contained several significant amendments. Its terms are further defined by regulations of the United States Department of Education, which are found in Parts 300 and 301 of Title 34 of the Code of Federal Regulations.
In defining the purpose of special education, IDEA 2004 clarifies Congress’ intended outcome for each child with a disability: students must be provided a Free Appropriate Public Education (FAPE) that prepares them for further education, employment and independent living.
Under IDEA 2004:
Special education and related services should be designed to meet the unique learning needs of eligible children with disabilities, preschool through age 21.
Students with disabilities should be prepared for further education, employment and independent living.
Background
Before the Education for All Handicapped Children Act was enacted in 1975, U.S. public schools accommodated only 1 out of 5 children with disabilities. Until that time, many states had laws that explicitly excluded children with certain types of disabilities from attending public school, including children who were blind, deaf, and children labeled "emotionally disturbed" or "mentally retarded." At the time the EHA was enacted, more than 1 million children in the U.S. had no access to the public school system. Many of these children lived at state institutions where they received limited or no educational or rehabilitation services. Another 3.5 million children attended school but were “warehoused” in segregated facilities and received little or no effective instruction.
As of 2006, more than 6 million children in the U.S. receive special education services through IDEA.
Historical context
In 1954, the established educational format in the United States of segregating black and white students into separate schools was deemed unconstitutional by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). This caused a great deal of unrest in the political sphere and marks a gateway moment in the Civil Rights Movement. Education was an important aspect of the Civil Rights Movement.
The years that led up to the formation of Education for All Handicapped Children Act of 1975 were marked by strife in the United States. The assassination of John F. Kennedy in 1963, the Vietnam war was ongoing from 1955 until 1975. On top of those events, the Civil Rights Movement was in full force in the United States. From schools being integrated to the Montgomery Bus Boycott, from Greensboro sit-ins to marches on Washington, equal rights for all was a prevalent ideal. President Kennedy showed interest in mental retardation studies and President Johnson used Federal funds to increase research on “at-risk” youth. Early intervention programs for children living in low socioeconomic situations, such as the Head Start Program, began showing up around the country. Education was soon at the forefront of many political agendas.
In 1971 four moms from Washington State (Janet Taggart, Katie Dolan, Cecile Lindquist and Evelyn Chapman) wrote and passed into law, the first special education civil rights legislation in the US, called Education for All (HB 90) giving students with disabilities equal access to a public school education. The framework of Washington State HB 90 was used to create the Federal IDEA Law.
Another educational sector to argue for access to equal educational opportunities for all students was the Pennsylvania Association for Retarded Children (PARC), which sued Pennsylvania in 1972 for not providing equal access to educational opportunities to children with disabilities. Soon after this, the Rehabilitation Act of 1973 established that Federal programs could not discriminate on the basis of disabilities. However, the Rehabilitation Act of 1973 forced parents to take any cases to the court system. The Education for All Handicapped Children Act created the option for parents to use an administrative hearing instead, which could decrease the litigation costs associated with filing a claim. Parents retain the right to appeal to a federal or state court. The EHA also created a specific affirmative right to a free appropriate public education in the least restrictive environment for children with disabilities.
27 years later, in 1990, the EHA was replaced by the Individuals with Disabilities Education Act in order to place more focus on the individual, as opposed to a condition that individual may have. The IDEA also had many improvements on the EHA, such as promoting research and technology development, details on transition programs for students post-high school and programs that educate children in their neighborhood schools, as opposed to separate schools.
Provisions of IDEA
Eligibility for services
Having a disability does not automatically qualify a student for special education services under the IDEA. The disability must result in the student needing additional or different services to participate in school.
IDEA defines a "child with a disability" as a "child... with an intellectual disability, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance..., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; AND, who... [because of the condition] needs special education and related services."
Children with disabilities who qualify for special education are also automatically protected by Section 504 of the Rehabilitation Act of 1973 and under the Americans with Disabilities Act (ADA). However, all modifications that can be provided under Section 504 or the ADA can be provided under the IDEA if included in the student's IEP.
Students with disabilities who do not qualify for special education services under the IDEA may qualify for accommodations or modifications under Section 504 and under the ADA. Their rights are protected by due process procedure requirements.
The zero reject rule was affirmed in Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.1985) and Timothy W. v. Rochester School District 875 F.2d 954 (1st Cir. 1989). The courts have ruled that even if the student is completely incapable of benefiting from educational services and all efforts are futile—even if the child is unconscious or in a coma—the school is still required to provide educational services to the child.
Individualized Education Program
The act requires that public schools create an Individualized Education Program (IEP) for each student who is found to be eligible under both the federal and state eligibility/disability standards. The IEP is the cornerstone of a student's educational program. It specifies the services to be provided and how often, describes the student's present levels of performance and how the student's disabilities affect academic performance, and specifies accommodations and modifications to be provided for the student.
An IEP must be designed to meet the unique educational needs of that one child in the Least Restrictive Environment appropriate to the needs of that child. That is, the least restrictive environment in which the child learns. When a child qualifies for services, an IEP team is convened to design an education plan. In addition to the child’s parents, the IEP team must include at least one of the child’s regular education teachers (if applicable), a special education teacher, someone who can interpret the educational implications of the child’s evaluation, such as a school psychologist, any related service personnel deemed appropriate or necessary, and an administrator or CSE (Committee of Special Education) representative who has adequate knowledge of the availability of services in the district and the authority to commit those services on behalf of the child. Parents are considered to be equal members of the IEP team along with the school staff. And of course, parents have fundamental rights as parents. Based on the full educational evaluation results, this team collaborates to write an IEP for the individual child, one that will provide a free, appropriate public education. The required content of an IEP is described in Individualized Education Program.
Related services
The definition of related services in the IDEA includes, but is not limited to: transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, music therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and *mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
Free Appropriate Public Education
Guaranteed by the Individuals with Disabilities Education Act (IDEA), FAPE is defined as an educational program that is individualized to a specific child, designed to meet that child's unique needs, and from which the child receives educational benefit. To provide FAPE, schools must provide students with an “… education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”
Some of the criteria specified in various sections of the IDEA statute includes requirements that schools provide each disabled student an education that:
~ Is designed to meet the unique needs of that one student
~ Provides “ …access to the general curriculum to meet the challenging expectations established for all children” (that is, it meets the approximate grade-level standards of the state educational agency)
~ Is provided in accordance with the Individualized Education Plan (IEP) as defined in 1414(d)(3). Results in educational benefit to the child.
Least Restrictive Environment
The U.S. Dept. Education, 2005a regulations implementing IDEA states: "...to the maximum extent appropriate, children with disabilities including children in public or private institutions or care facilities, are educated with children who are nondisabled; and special classes, separate schooling or other removal of children with disabilities from regular educational environment occurs only if 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."
Simply put, the LRE is the environment most like that of typical children in which the child with a disability can succeed academically (as measured by the specific goals in the student's IEP). This refers to the two questions decided upon in Daniel R. R. v. State Board of Education, 874 F.2D 1036 (5th Cir. 1989).
This court, relying on Roncker, also developed a two-part test for determining if the LRE requirement is met. The test poses two questions:
~ Can an appropriate education in the general education classroom with the use of supplementary aids and services be achieved satisfactorily?
~ If a student is placed in a more restrictive setting, is the student "integrated" to the "maximum extent appropriate"? (Standard in AL, DE, GA, FL, LA, MS, NJ, PA, TX).
Discipline of a child with a disability
Pursuant to IDEA, when disciplining a child with a disability, one must take that disability into consideration to determine the appropriateness of the disciplinary actions. For example, if a child with Autism is sensitive to loud noises, and she runs out of a room filled with loud noises due to sensory overload, appropriate disciplinary measure for that behavior (running out of the room) must take into account the child's disability; such as avoiding punishments that involve loud noises. Moreover, an assessment should be made as to whether appropriate accommodations were in place to meet the needs of the child.
According to the United States Department of Education, in cases of children with disabilities who have been suspended for 10 or more days for each school year (including partial days), the local education agency (LEA) must hold a manifestation determination hearing within 10 school days of any decision to change the placement of a child resulting from a violation of code of student conduct. The Stay Put law states that a child shall not be moved from his or her current placement or interim services into an alternative placement if the infraction was deemed to cause danger to other students. The LEA, the parent, and relevant members of the individualized education program (IEP) team (as determined by the parent and LEA) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was:
~ Caused by, or had a direct and substantial relationship to, the child's disability; or
~ The direct result of the LEA's failure to implement the IEP.
If the LEA, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the child’s disability, the IEP team shall:
~ Conduct a functional behavioral assessment and implement a behavioral intervention plan for such child, provided that the LEA had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in Section 615(k)(1)(C) or (G);
~ In the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
~ Except as provided in Section 615(k)(1)(G), return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavior intervention plan.
If it is determined that a student's behavior is a manifestation of his or her disability, then he or she may not be suspended or expelled. However, under IDEA 2004,if a student "brings a weapon to school or a school function; or knowingly possess, uses, or sells illegal drugs or controlled substances at school or a school function"; or causes "serious bodily injury upon another person," he or she my be placed in an interim alternate educational setting (IAES) for up to 45 school days. This allows the student to continue receiving educational services while the IEP team has time to determine the appropriate placement and the appropriate course of action including reviewing the FBA and the BIP.
Prohibition on mandatory medication
Due to allegations that school officials coerced parents into administering psychotropic medication such as Ritalin to their child, an amendment to the IDEA was added called prohibition on mandatory medication. Schools may not require parents to obtain a controlled substance as a condition of:
~ attending school
~ receiving an evaluation or reevaluation
~ receiving special education services
Child Find
For infants/toddlers with disabilities and/or developmental delay, the state's designated lead agency for Part C early intervention is responsible for educating the public about early intervention services and how to refer. In most states, any individual (including the parent) may make a referral if a delay is suspected. Primary referral sources, generally, neonatal care hospital staff, pediatric professionals, day care workers, etc. are required under IDEA to refer an infant or toddler suspected of having a disability or developmental delay as soon as possible but no later than seven days after identification. Public service agencies involved with families in crisis also refer children for intervention who have been involved in a substantiated case of child abuse or neglect as defined in section 320 of the Family Violence Prevention and Services Act, 42 U.S.C. 10401, et seq. Despite regulations intended to address the needs of infants and toddlers with disabilities or delays, less than half of all eligible children are referred for services.
When a toddler who is receiving early intervention services under Part C of IDEA approaches his/her third birthday, the early intervention program sends the LEA - the local educational agency (in most states, regional educational cooperatives) as well as the SEA - the state educational agency (the department of education) a list of the children receiving early intervention services who are potentially eligible for early childhood special education services under Part B of IDEA. LEA and SEA notifications are required under IDEA CFR 303.209(b).
Public schools work in collaboration with the early intervention lead agency to coordinate "child find" through inter-agency agreements required under IDEA. Public school districts are responsible for providing supportive educational services for all students with disabilities who qualify for special education services and who reside in their district, regardless of whether they are attending public schools, since private institutions may not be funded for providing accommodations under IDEA.
Procedural safeguards
IDEA includes a set of procedural safeguards designed to protect the rights of children with disabilities and their families, and to ensure that children with disabilities receive a FAPE. The procedural safeguards include the opportunity for parents to review their child's full educational records; full parent participation in identification and IEP team meetings; parent involvement in placement decisions; Prior Written Notice; the right of parents to request independent educational evaluations at public expense; Notice of Procedural Safeguards; Resolution Process; and objective mediation funded by the state education agency and impartial Due Process Hearings. IDEA guarantees the following rights to parents:
~ Right to be informed in writing of the Procedural Safeguards (There is a booklet)
This booklet is to be provided in the following instances * On the first complaint or request for an evaluation
~ Upon the request of a parent or guardian
~ If a complaint is filed with the department of education
~ Upon your child having their school changed as a result of disciplinary action against your child
The professional safeguard booklet titled, Whose Idea Is This? A Parent’s Guide to the Individuals with Disabilities Education Improvement Act of 2004 outlines the expectations and responsibilities of the parents as well as the expectations and legal responsibilities of the teachers, administration and school district.
~ Right to review all educational records.
~ To be equal partners on the IEP team, along with the school staff. To participate in all aspects of planning their child’s education.
~ To file complaints with the state education agency
~ Request mediation, or a due process hearing
~ At this time, parents may present an alternative IEP and their witnesses (experts and others), to support their case.
~ These hearings are Alternative Dispute Resolution (ADR) hearings and can be appealed. This is not a trial.
The entire goal of this process is to make the evaluation and, if needed, implementation of an IEP a joint venture between the students guardians and the school, with the goal of providing the education services needed to aid instruction in a general classroom setting, or other setting if needed. The booklet outlines a seven step process to determine a student’s educational needs and the services that they require:
~ Request for assistance: Parents may contact the schools to discuss potential learning concerns that they may have and the school contacts home if they believe the child is struggling due to a disability.
~ Request for evaluation: Here a parent may request, in writing, for a formal evaluation of the student with the school to determine if the student has any educational disabilities.
~ Evaluation: Students are typically evaluated on the following items, although additional areas can be examined upon parent or school request: Health, vision, hearing, social and emotional development, general intelligence, academic performance, communication abilities and motor abilities.
~ Development of an IEP: In accordance with the findings of the evaluation and in joint collaboration between parents and school a plan of action to aid the student is created. At this time a parent must also provide consent to the plan and guidelines that are created as part of the IEP
~ Annual Review: As part of IDEA it is mandated that a child’s IEP is reviewed at least once a year. This is a chance for parents and school personal to comment on the effectiveness of the plan and to decide on an appropriate future course of action.
~ Re-evaluation: Allows for a student to have their educational needs reassessed by school personal if a parent does not agree with the findings of the initial evaluation
~ Independent educational evaluation: This is a parent action that informs the school that they disagree with the school's evaluation of their child. From here it may be required that an independent, non-school affiliated team, evaluates the child in order to determine the child’s educational needs.
Early intervention
The Education for all Handicapped children Act of 1975 started the course of action for early intervention programs. In this act, public schools that received federal funding were required to provide equal access to education for children with disabilities.
On September 6, 2011, the US Department of Education updated the IDEA to include specific interventions for children of ages 2 and under that have disabilities. This section of the IDEA is entitled Part C and serves children with developmental delays or children that have conditions that may lead to developmental delays in the future. Part C is a $436 million initiative that will be administered at the state level.
On September 28, 2011, the Department of Education published an article in the Federal Register detailing the updates that have been made to Part C of the IDEA. The regulations are effective on October 28, 2011. Major changes in the regulations are detailed below:
~ The definition of multidisciplinary has been revised to respect aspects of an updated individualized family service plan (IFSP) team.
~ Native language is the language normally used by the parents of the child for any child that is deemed limited English proficient
~ State’s applications to must include how the State plans to follow the payor of last resort requirements in Section 303.511
~ Distinguishes between pre-referral, referral, and post-referral IFSP activities such as screening, evaluations, assessments, IFSP development, etc.
~ Specifies that early identification information in provided in the native languages of various population groups in the State
~ State must report to the public the performance of each Early Intervention System program in relation to the State’s Annual Performance Report
More specific details on Early Intervention requirements are found below.
Part C of IDEA
An Individualized Family Service Plan (IFSP) is a strengths-based plan of care for the infant/toddler with a developmental delay or disability. The plan is based on a child and family assessment of strengths and needs as well as the results of multidisciplinary evaluations administered by qualified professionals meeting their state's certification guidelines. The IFSP is similar to an IEP in that it addresses specific services, who will provide them and when/where, how often, etc. and the plan is monitored and updated frequently. Unlike an IEP, however, the IFSP addresses not only the needs of the child but also the needs of the family to meet their family goals and specified outcomes as related to assisting in their child's development. All infants and toddlers receiving early intervention services under Part C of IDEA are required to have an IFSP in order to receive services. Part C of IDEA is the program that awards grants to every state in the United States to provide early intervention services to children from birth to age 3 who have disabilities and to their families. Part C of IDEA also allows states to define "developmental delay" (either as a standard deviation or a percent delay in chronological months) for eligibility. States provide early intervention services to the children who have medically diagnosed disabilities as well as children who exhibit developmental delays. In order to receive funding, participating states must provide early intervention to every eligible child and the respective family, regardless of pay source. Lastly, services from Part C are not necessarily free - early intervention programs, as the payor of last resort, make use of public and private insurance, community resources, and some states implement a "sliding scale" of fees for services not covered by public or private insurance.
Goals for an IFSP
The goal of an IFSP is to assist the family in meeting their child's developmental needs in order to the infant or toddler (birth to age three) to increase functional abilities, gain independence and mobility, and be an active participant in his/her family and community. Another goal of early intervention in general is to improve a child's functional abilities, particularly in the domains of communication, cognitive ability, and social/emotional well-being in preparation for preschool and later kindergarten so that extensive special education services will not be necessary for the child's academic success. Once an infant/toddler is determined eligible (each state sets its own eligibility requirements), the family identifies whom they would like to participate as part of the IFSP team. The Individuals with Disabilities Education Act (IDEA) Part C requires that the IFSP team consist of the family and at least two early intervention professionals from different disciplines (one being the service coordinator) - consistent with CFR §303.343(a)(1)(iv). However, the family may choose to include other members on the team such as the child's pediatrician, an early intervention service provider who may be working with the child, a parent advocate or trusted friend/family member.
The IFSP team works with the family to create a "service plan" to address the deficits of the infant or toddler and to assist the family in meeting their goals for their child's (and family's) development. The team uses information that the family provides as well as the results of at least two evaluations, all available medical records, and the informed clinical opinion of the professionals serving on the IFSP team. An initial IFSP is then created with the family. An IFSP will outline the following:
~ The child's current levels of physical, cognitive, communication, social or emotional, and adaptive development.
~ The family's resources, priorities, and concerns to help in their child's development.
~ The desired end result for the child and for the family (goals/outcomes), as well as the steps needed to achieve said end result (objectives). The plan will be monitored and evaluated quarterly to gauge progress. If the family chooses to revise the goals or the plan, they include updates as revised additions to the plan.
~ The early intervention services for the child and the family. This includes how often and the method of how the child and the family will receive the services.
~ The different environments that the services will be provided in and justification for services not provided in the "natural environment" as defined by IDEA (the location that a child without a disability would spend most of his/her time). For example, the family might have requested to receive services for the child at a day care center or in their home.
~ The date the services will begin and their anticipated duration.
~ The identification of the service coordinator, from the profession most immediately relevant to the infant's or toddler's family's needs, who will be responsible for the coordination and implementation of the plan with the other agencies and persons.
~ For toddlers approaching the third birthday, the IFSP will include a transition plan outlining the steps, activities, and services needed to support the transition of the toddler with a disability to preschool or other appropriate services.
In summary, a key to an effective IFSP is to include outcomes that “address the entire family’s well-being and not only outcomes designed to benefit the child’s development.” For this reason, the IFSP will inherently have goals that are designed for the family as well as for the child. The service coordinator helps the early intervention team of service providers write objectives that meet the family’s priorities and concerns.
Role of the Service Coordinator
All infants/toddlers (and their families) eligible for early intervention services under Part C of IDEA are guaranteed the right to service coordination at no cost to the family (at public expense). An initial service coordinator is assigned to a family upon referral, however, the family has the right of choice and may change service coordinators at any time. Under IDEA, the service coordinator serves as a single point of contact. "Service coordination services include assisting parents of infants and toddlers with disabilities in obtaining access to needed early intervention services and other services identified in the IFSP" [IDEA CFR §303.34(b)(1)]. The service coordinator works with the family and also leads the early intervention team of professionals working with the infant/toddler and family, conducting follow ups and monitoring service provision. The service coordinator will work with the infant/toddler and his/her family until the child turns three and "ages out" of early intervention (except in the few states that have elected to provide early intervention services from birth to five). As early as nine months prior to the toddler's third birthday, the service coordinator works with the family to prepare for transition to another appropriate environment for the child. The transition plan and a transition conference will be completed at least ninety days before the toddler's third birthday. For toddlers receiving early intervention services who are not eligible for early childhood special education services under Part B, the service coordinator will help the family identify other appropriate early childhood learning environments/opportunities/programs in their community (IDEA CFR §303.344(h)).
Federal law (CFR §303.34) lists the ten functions of service coordinators in their work with infants and toddlers who have special needs and their families. These include:
~ Assisting families in obtaining needed services (as well as making referrals, scheduling appointments, etc.)
~ Coordinating early intervention services (social, medical, educational)
~ Coordinating evaluations and assessments and making sure results are explained with family members and that family members receive a copy
~ Facilitating and participating in the development, review, and evaluation of Individualized Family Service Plans (IFSPs)
~ Assisting families in identifying available EIS providers (including making the referral)
~ Monitoring the delivery of services indicated on the IFSP (timely receipt of services)
~ Following up to determine that appropriate services are being provided
~ Informing/educating families of their rights and procedural safeguards
~ Coordinating funding sources for services
~ Facilitating the development of a transition plan to preschool services under Part B or other appropriate services
Differences between IFSP and IEP
When writing the IFSP for a child, the IFSP can (but not always) outline services that are not one of the seventeen mandated early intervention services under Part C of the IDEA. For example, a parent may need counseling services to overcome debilitating depression in order to better care for the infant or toddler, and these services will be written into the family's plan. The IEP (Individualized Education Plan) cannot include services to meet "family goals" but must focus solely on what the child needs to achieve academic success in an educational setting (whether the class or activity is academic or extra-curricular in nature).
The Individualized Family Service Plan is different compared to an Individual Education Plan in other key ways:
~ Eligibility for early intervention (birth to three) under Part C of IDEA is set by each state individually and is often different than eligibility for special education (3-21) under Part B of IDEA.
~ The IFSP will have goals and outcomes for the family and for the infant's/toddler's development.
~ Goals on the IFSP may be in non-academic areas of development such as mobility, self-care, and social/emotional well-being. The IEP has goals and outcomes for the child only and related entirely to his/her ability to adapt to and progress in an educational setting.
~ The IFSP includes services to help a family in natural environment settings (not just in daycare/preschool) but at home, in the community, etc. Services and activities on the IFSP could be tailored to "nap time," "infant swimming lessons at the YMCA," "church outings," etc. The IEP provides services solely on what happens in a pre-school or K-5 school environment or school-sponsored field trip/activity
~ The IFSP team involves a service coordinator who assists the family in developing and implementing the IFSP. The IEP team also involves the family, but the school district generally does not provide a professional who represents them and provides case-management/service coordination. The family will have to communicate with the special education department's designee.
Department of Education Regulations
In addition to the Federal law, the U.S. Department of Education publishes regulations that clarifies what the law means. States may add more provisions to further regulate how schools provide services, but they cannot reverse any provision specifically included in the federal statute.
Alignment with No Child Left Behind
The reauthorization of IDEA in 2004 revised the statute to align with the requirements of the No Child Left Behind Act (NCLB). NCLB allows financial incentives to states who improve their special education services and services for all students. States who do not improve must refund these incentives to the federal government, allow parents choice of schools for their children, and abide by other provisions. Some states are still reluctant to educate special education students and seek remedies through the courts. However, IDEA and NCLB are still the laws of the land to date.
In looking to align NCLB and the 2004 reauthorization of IDEA there are a few key areas of alignment: requirement highly qualified teachers, establishment of goals for students with special needs and assessment levels for these students The alignment of NCLB and IDEA requires that all special education teachers be highly qualified. While the standards for being highly qualified may different between state or school district the minimum requirements are that a teacher holds a bachelor’s degree from a four year college, is certified and licensed to teach by the state and has taken the necessary tests to indicate competency in ones subject area, although special education teachers are often exempt from such testing. These requirements for highly qualified teachers do not always exist for private schools, elementary or secondary. Next, goals and assessments must be provided that align with students educational needs. A state is allowed to develop alternate or modified assessments for students in special education programs but benchmarks and progress must still be met on these tests that indicate adequate yearly progress (AYP). In addition, these goals and assessments must be aligned similarly to students enrolled in general education. Finally, in order to make AYP schools may additionally require that schools met state standards of student retention, in terms of dropout rates and graduate rates for their special education students.
Criticisms
Criticisms from taxpayers
~ There are no exceptions to IDEA: no child is so severely disabled as to not qualify for educational services under IDEA. Even children who are in a permanent vegetative state or suffering from similarly severe brain damage still qualify for a Free Appropriate Public Education. This means that schools can be required to provide "educational" services to children who have no capacity for voluntary movement, no ability to communicate, and no indication that they recognize their own names or their parents' faces.
~ Under the "related services" clause, schools are specifically required to pay for many kinds of medical treatments, including speech therapy, audiology, physical therapy, and nursing, if the medical treatment is expected to help the student's education. There is no requirement that private health insurance be used when available. (A subsequent statutory exception relieved schools of the duty to pay for certain kinds of surgery, such as cochlear implants.)
Criticisms from schools
~ Excessive procedures and paperwork requires teacher time that would be better spent teaching
~ School staff often state beliefs that IDEA protects children and parents but not districts, schools and teachers
~ Parents request services for their children for which their children do not qualify based on local, state and federal guidelines.
Teachers and administrators then often deal with anger from parents who do not understand or do not agree with the regulations by which the school must abide.
~ Providing mandated educational and related services is expensive and reduces schools' ability to educate regular education students
~ Unfunded mandate. When originally passed in 1975, Congress established a maximum funding level for the program of 40 percent of the average per pupil expenditure of American students. This was a rough proxy for the estimated additional cost of educating a student with disabilities. Some have construed this as a promise that the federal government would fund that amount of spending. To date, despite massive increases in Part B funding, Congress has never provided more than 30 percent.
Criticisms from students and parents
~ Parents criticize schools for not following laws in designing and implementing education plans. Enforcement is scarce and ineffective.
~ Impartial Due Process hearing officers are not impartial
~ Districts spend thousands of dollars fighting against parents who want services for their children rather than providing the services, which are often much less expensive than the attorney's fees.
~ Schools and districts may retaliate against families who advocate for their children, sometimes retaliating against the children themselves. Such retaliation may include reporting the special needs child and family to the local state Child Protective Services, sometimes in an attempt to blame the "home environment" as being abusive or neglectful in order to shift blame away from the school for the child's failure to progress or regression at school. The school may claim that there was "evidence" of abuse and neglect, including dirty clothing, holes in clothing, poorly nutritious lunches given to child by parents, child's nosebleeds or a child's self-injurious behavior seen at school. Sometimes schools will report on a special needs child but not his/her non-disabled sibling. These actions often appear to be for retaliation and harassment purposes rather than based in fact.
~ Parents do not know how to prepare an IEP to counter inadequate IEPs prepared by schools.
~ Some students do not obtain effective transition skills and information necessary for when they exit special education, and out into the real world. They are essentially dumped without necessarily any idea of the available community resources, infrastructure, and/or policies.
~ Minorities, particularly African-Americans, are over-identified as having learning disabilities, emotional disturbances, and mental retardation.
African-Americans over-identified with learning disabilities
There is a disproportionate amount of African-Americans in special education juxtapose the general American in school system. Socioeconomic status, geography, and culture play a role in this dis-proportionality among other factors.
There is a strong correlation between socio-economic status and special education diagnosis. Those living in poverty are less exposed to certain societal experiences, and a higher percentage of those living in poverty are African-Americans. Because children living in poverty are less exposed to certain experiences, they are at greater risk for not performing well on exams such as IQ tests. This then makes these students more likely to be referred for special education, and once a referral has been made the placement or admittance into special education services soon follows at high numbers.
There is also a widely held belief that some exams that are administered to determine if a student has a disability are culturally biased and gender biased. There is a body of research that supports this view, although there is also support that not all norm-referenced tests are in fact biased. There can also be a lack of cultural competency between the learning styles of African-American students and their educators & school systems.
Addressing disproportionality
Every state is required under IDEIA to provide data to ensure that disproportionality is not occurring. The issue is that there is no guideline on how that data should be analyzed. The Office of Special Education Programs (OSEP) met in 2003 and 2004 to use risk-ratio and determine its challenges, while also addressing them. Insight on how data is being collected and analyzed can shed light on where and how the dis-proportionality is occurring and how to curtail them if they are.
IDEA 2004 also put in place indicators to prevent the over-diagnosis of students with disabilities The Wisconsin Department of Public Instruction created a Checklist to Address Disproportionality (CADSE) in order to increase awareness of over-diagnosis and put systems in place that prevent the continued cycles of over-identification. An important component of this checklist is cultural competency. Efforts continue to be made on a local, state, and national level to prevent over-identification in special education.
Legal rights
There are resources available to safeguard and protect students and families with disabilities. Parents must be asked if they want their child evaluated for special needs testing. If a parent feels that their child has been misdiagnosed or has been discriminated against for a particular reason including race or language, they have the right to filed with the Office of Civil Rights. There are legal service providers in each state that can be accessed through the National Association of Protection and Advocacy Systems. There are also resources to help parents in understanding their rights through the National Information Center for Children and Youth with Disabilities.
Legislative history
1975 — The Education for All Handicapped Children Act (EAHCA) became law. It was renamed the Individuals with Disabilities Education Act (IDEA) in 1990.
1990— IDEA first came into being on October 30, 1990 when the "Education of All Handicapped Children Act" (itself having been introduced in 1975) was renamed "Individuals with Disabilities Education Act." (Pub. L. No. 101-476, 104 Stat. 1142). IDEA received minor amendments in October 1991 (Pub. L. No. 102-119, 105 Stat. 587).
1997— IDEA received significant amendments. The definition of disabled children expanded to include developmentally delayed children between three and nine years of age. It also required parents to attempt to resolve disputes with schools and Local Educational Agencies (LEAs) through mediation, and provided a process for doing so. The amendments authorized additional grants for technology, disabled infants and toddlers, parent training, and professional development. (Pub. L. No. 105-17, 111 Stat. 37).
2004— On December 3, 2004, IDEA was amended by the Individuals With Disabilities Education Improvement Act of 2004, now known as IDEIA. Several provisions aligned IDEA with the No Child Left Behind Act of 2001, signed by President George W. Bush. It authorized fifteen states to implement 3-year IEPs on a trial basis when parents continually agree. Drawing on the report of the President's Commission on Excellence in Special Education, the law revised the requirements for evaluating children with learning disabilities. More concrete provisions relating to discipline of special education students was also added. (Pub. L. No. 108-446, 118 Stat. 2647).
2009— Following a campaign promise for "funding the Individuals with Disabilities Education Act", President Barack Obama signed the American Recovery and Reinvestment Act of 2009 (ARRA) on February 17, 2009, including $12.2 billion in additional funds.
Judicial interpretations
U.S. Supreme Court decisions
Schaffer v. Weast
On November 14, 2005, the U.S. Supreme Court held in Schaffer v. Weast, 546 U.S. 49, that moving parties in a placement challenge hold the burden of persuasion. While this is an accord with the usual legal thinking, the moving party is almost always the parents of a child.
Arlington v. Murphy
On June 26, 2006 the Supreme Court held in Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, that prevailing parents may not recover expert witness fees as part of the costs under 20 U.S.C.§ 1415(i)(3)(B).
Winkelman v. Parma City School District
On May 21, 2007 the Supreme Court held in Winkelman v. Parma City School District, 550 U.S. 516, that parents have independent enforceable rights under the IDEA and may appear pro se on behalf of their children.
Forest Grove School District v. T.A.
The case of Forest Grove School District v. T.A., 129 S.Ct. 2484, argued before the Supreme Court on April 28, 2009, addressed the issue of whether the parents of a student who has never received special education services from a public school district are potentially eligible for reimbursement of private school tuition for that student under the IDEA. On June 22, 2009 the Supreme Court held that parents of disabled children can seek reimbursement for private education expenses regardless whether their child had previously received special-education services from a public school. By a vote of six to three, the Court held that the Individuals with Disabilities Education Act (IDEA) authorizes reimbursement whenever a public school fails to make a free appropriate public education (FAPE) available to a disabled child.
Cedar Rapids Community School Dist. v. Garret F.
RULE: Continuing nursing services is "related service" that district must provide under IDEA
~ Ventilator-dependent student needs nurse/attendant with him all day and parents want school to pay for this nurse/attendant.
School says no, thinking this isn't a legal obligation (to provide 1:1 nursing).
~ TEST applied (from Tatro)
~ Related service? Yes: help kids benefit from school
~ Medical service exemption? No, school nurse services not covered by exemption (pretty much only services covered by a doctor can be excluded). This is a service which must be paid for by the school. Cost of service is not a factor in determining whether it is required by IDEA. There is no undue burden exemption.
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