Definitions

complying with

Individuals with Disabilities Education Act

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 the age of 21.

The IDEA is considered to be a civil rights law. However, states are not required to participate. As an incentive and to assist states in complying with its requirements, IDEA makes funds available to states that adopt at least the minimum policies and procedures specified in the IDEA regarding the education of children with disabilities. Since its inception, all states have chosen to participate.

The IDEA was formerly known as the Education for All Handicapped Children Act but has grown considerably since. IDEA became a federal standard by an act of Congressional adoption in 1975 but has been amended many times since. The IDEA was most recently amended in 2004, which was a significant update.

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.

Background

Before the EHA statute was enacted in 1974, U.S. public schools educated 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. Many states are still resistant to educating special needs children appropriately even though they continue to accept federal funding. The federal and state enforcement agencies do not use strong enforcement methods or penalties.

Provisions of IDEA

Eligibility for services

Having a disability does not automatically qualify a student for special education services under the IDEA. IDEA defines a "child with a disability" as a child . . . with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . ., orthopedic impairments, autism, traumatic brain injury, other health impairments, 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.

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 the 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, a special education teacher, someone who can interpret the educational implications of the child’s evaluation, such as a school psychologist, and an administrator who has 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. Alternatively, parents may prepare an IEP if the school's IEP is not fair to the child.

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, 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:

  1. Can an appropriate education in the general education classroom with the use of supplementary aids and services be achieved satisfactorily?
  2. 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, discipline of a child with a disability must take that disability into account. For example, if a child with Asperger syndrome is sensitive to loud noises, and if the child runs out of a room filled with loud noises, any discipline of that child for running out of the room must take into account the sensitivity and whether appropriate accommodations were in place. According to the United States Department of Education, for children with disabilities who have been suspended for 10 days total 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 with a disability because of a violation of a code of student conduct following either the Stay Put law which states that the child shall not be moved from his or her current placement or interim services in 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.

http://specialchildren.about.com/gi/dynamic/offsite.htm?zi=1/XJ/Ya&sdn=specialchildren&cdn=parenting&tm=8&f=10&su=p284.8.150.ip_&tt=14&bt=0&bts=0&zu=http%3A//fape.org/idea/2004/summary.htm

Child Find

Public school districts are responsible for identifying all students with disabilities within their districts, 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)
  • 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.

Early Intervention

Part C of the IDEA requires that infants and toddlers with disabilities receive early intervention services from birth through age 3. These services are provided according to an Individualized Family Service Plan (IFSP. In contrast, Part B of the IDEA requires that children with disabilities, from age 3 to 21, are provided a free approprite public education.

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.

Criticisms of IDEA

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
  • Providing mandated educational and related services is expensive and reduces schools' ability to educate regular education students
  • Unfunded mandate. When passed, federal government was supposed to pay for 40% of the cost of educating students with disabilities. However, Congress has yet to provide all of this 40%. As of 2007, the federal government pays for about 12% of special education costs. Many schools fail to supply spending records or cost analysis, demonstrating that they are legitimately planning or have spent, more than 12% to education special education children.

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.
  • Schools label children as "learning disabled" and place them in special education even if the child does not have a learning disability, because the schools have failed to teach the children basic skills.
  • Minorities are overidentified as having learning disabilities, emotional disturbaces, and mental retardation.
  • Parents do not know how to prepare an IEP to counter inadequate IEPs prepared by schools.

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.)

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 tranining, 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. It authorized fifteen states to implement 3-year IEPs on a trial basis when parents continually agree. More concrete provisions relating to discipline of special education students was also added. (Pub. L. No. 108-446, 118 Stat. 2647).

Supreme Court Decisions

Schaffer v. Weast

On November 14, 2005, the Supreme Court held in Schaffer v. Weast, 126 S.Ct. 528, 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 v. Murphy, 126 S.Ct. 2455, 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, 127 S.Ct. 1994, that parents have independent enforceable rights under the IDEA and may appear pro se on behalf of their children.

References

See also

External links

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