SPED 608 Special Education Legislation & Litigation Individuals with Disabilities Education Improvement Act (IDEIA)

 IDEA mandates that ALL children with disabilities shall receive a free, appropriate, public, education (FAPE), including special education and related services to meet their unique needs.  It ensures that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.  IDEA insures that the rights of children with disabilities and their parents are protected.  IDEA assesses and insures the effectiveness of efforts to educate such children. Purposes of IDEA

1.Zero Reject 2.Non-discriminatory Testing 3.Individualized & Appropriate Education 4.Least Restrictive Environment (LRE) 5.Due Process 6.Parental Participation Six Major Principles of IDEA:

 The right to be included in a free, appropriate, publicly supported educational system.  Schools must enroll every child, regardless of the nature or severity of disability.  NO child with disabilities may be excluded from a public education. Zero Reject Means:

Eligibility  “A free appropriate public education must be available to all children residing in the state between the ages of 3 and 21, inclusive…” (emphasis added) Reg § (IDEIA, 2004)  Having a disability is not enough of a requirement for special education services. A student's disability must hinder the educational process as well. If a disability does not impact learning, there is no need for special education. Zero Reject (continued)

 Eligibility examples:  A child with diabetes requiring insulin injections requested special education. The court determined that the disability (diabetes) did not impact learning.  A child with hearing impairment requested special education services. The hearing officer requested additional information to determine if the hearing impairment was substantial enough to impact learning. Zero Reject (continued)

 Eligibility examples: (continued)  Timothy W. v. Rochester School District (1989): In this case, a severely disabled student was denied services because he was "unable to benefit from services". The court agreed and the case was appealed. The second court ruling reversed the original decision and stated that the first court had erred--ALL children are entitled, regardless of the severity of their disability or the benefits of services. Zero Reject (continued)

 Eligibility examples: (continued)  Parks v. Pavkovic (1985): This case involved a 6 year old child who was comatose. His only responses were simple reflexes. A state level review panel stated that he was not eligible for special education services because he did not have the cognitive abilities to benefit from an education. They also indicated that the services he would be receiving were not "educational" in nature because he was unresponsive, thus he was not able to be educated. The Office of Special Education and Rehabilitative Services (OSERS) ruled that the district must provide services to this child, even though he was comatose. Zero Reject (continued)

 Note: These are examples from actual cases and cannot/should not be generalized to similar situations. Each situation must be evaluated on an individual basis. Zero Reject (continued)

 The right to be fairly evaluated and diagnosed so that the correct educational placement and program can be achieved  This is the first step in defining an "appropriate education." Non-discriminatory Testing Means:

Three purposes of evaluation:  Describe the child’s functioning, noting strengths & weaknesses  Identify and define any outstanding needs the child exhibits  Determine eligibility and appropriate education Non-discriminatory Testing

Procedural guarantees for parents are:  A written notice of evaluation that includes the following: procedural safeguards, specific tests being administered, a description of general tests, and the purpose of the testing  Parental consent required  What if parents refuse consent???? The LEA cannot request dispute resolution to override a parent’s refusal to consent for special education and related services. In these circumstances, the LEA is not responsible to provide FAPE, convene an IEP meeting or develop an IEP. Non-discriminatory Testing

The Evaluation  The actual evaluation must be completed in a timely manner. If not, it is grounds for a complaint to the Office of Civil Rights. Significant delays in evaluation have the same effect as denying a child the right to a FAPE! Think about it...a hold up in the evaluation delays the educational process!  There is a 60 business day timeline from the receipt of parental consent for evaluation of eligibility to the determination of eligibility and the educational needs of the student Non-discriminatory Testing

The Evaluation (continued)  Evaluations ”…are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer.”  Tests must be validated for a specific purpose.  They must also be administered by trained personnel.  They must assess specific areas of educational need (not just an IQ score). Non-discriminatory Testing

The Evaluation (continued)  The test results should accurately reflect the child’s aptitude or achievement level, rather than their impaired skills.  No single predictor can be used as the sole criterion for determining appropriate educational programming (e.g., multiple assessment measurements must be used). Non-discriminatory Testing

The Evaluation  The student must be evaluated by multi- disciplinary team, and assessed in all areas related to suspected disability  Reevaluation may not occur more than once a year unless agreed to by the parent and LEA; it must occur at least once every 3 years unless the parent and LEA agree it is unnecessary Non-discriminatory Testing

The Evaluation (continued)  Failure to comply with any of these is a violation of IDEIA & Section 504 Non-discriminatory Testing

 the right to a meaningful educational experience  What is an appropriate education????? Individualized Appropriate Education Is:

Aspects of "appropriate" are provided in statutes & regulations  designed in conformity with an IEP  education equally suitable as that offered to those without disabilities  based on proper evaluation  attention to the education setting  devised with proper procedural safeguards Individualized Appropriate Education

Board of Education of the Hendrick Hudson Central School District v. Rowley (1982)  In this case, Amy Rowley, a deaf girl (who could lip read), was placed in a regular kindergarten class for a trial period. She was successful with this placement. She was later equipped with a hearing aid and continued to be successful in this placement. Her parents agreed with the IEP, but wanted Amy to have a sign language interpreter in all of her academic classes. The interpreter felt that such services were not necessary, as Amy was successful with her hearing aid in the classroom. Amy's parents argued that without the sign language interpreter, she was not receiving an appropriate education. Individualized Appropriate Education

BOE of the Hendrick Hudson CSD v. Rowley (1982)  This case attempted to define "appropriate". A lower court had proposed that Amy should be afforded the opportunity to achieve her full potential. This case was appealed to the Supreme Court, and they determined that an "appropriate" education does not mean "maximizing potential".  "If personalized instruction [was] being provided with sufficient supportive services to permit the child to benefit from the instruction" the child was receiving the level of services required to be appropriate. Individualized Appropriate Education

BOE of the Hendrick Hudson CSD v. Rowley (1982)  An IEP formulated in accordance with IDEA should be reasonably calculated to enable the child to obtain some educational benefit—regardless of how minimal the benefit Individualized Appropriate Education

BOE of the Hendrick Hudson CSD v. Rowley (1982)  Adequacy includes:  services/instruction at public expense  meeting the state’s educational standards  approximate grade levels in regular educational system  agreement with child’s IEP  placement in the LRE  The court also stated that it does not "second guess" an IEP, but…students with disabilities must be placed in an educational program that will have some educational benefit Individualized Appropriate Education

State Standards in determining the appropriateness of an education  An appropriate education also includes that special education & related services must meet the standards of the State Educational Agency (SEA)  The State must also meet minimal requirements of IDEA Individualized Appropriate Education

Applications of Appropriateness  Determining appropriateness must be made on an individual basis  Other considerations of appropriateness:  LRE  Services available  Cost: this is only relevant when choosing between several options, all of which must offer an appropriate education; neither high nor low cost renders something appropriate or inappropriate Individualized Appropriate Education

 Students with disabilities are to be educated with students without disabilities to the maximum extent possible.  The "least restrictive appropriate placement" is a term that is evolving, as we cannot discuss LRE without discussing the appropriateness of an environment.  Students with disabilities are to be educated with children who are non-disabled to the maximum extent possible Least Restrictive Environment

 Segregation should occur only when the nature/severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily  This may not be possible for some students, which is why IDEA provides for the education of such students in separate classes, schools, etc. (i.e., the "continuum of services) Least Restrictive Environment

 LRE is an individualized decision—a child should not be placed into an educational program on the basis of label, preconceived notions, or existing programs.  THE LRE IS NOT ALWAYS THE GENERAL EDUCATION CLASSROOM; in Geis v. Board of Education, a hearing impaired student was placed in a regular classroom...this setting was found to be too restrictive for the student. Least Restrictive Environment

Process of Determining LRE:  Develop an appropriate program outlined by the IEP.  Determine the settings in which program can be implemented.  Choose an option that maximizes interaction with non- disabled peers. Least Restrictive Environment

 Parents have the right to protest and have their child remain in the current educational setting until that protest is heard and decided upon.  Due Process assures parental participation and provides involved parties a mediation to resolve disputes; the purpose is to resolve disputes between the school and the parents. Due Process Means:

 Before any due process hearings occur, parents and school districts go through the process of “mediation.”  A trained member for the SEA serves as a facilitator between both groups.  Decisions are binding. Due Process

 Mediation  Impartial hearing at the school district level  Impartial hearing at the state level  Court system Due Process Steps

 Schools must collaborate with parents of students with disabilities in the design and implementation of educational services.  Schools must also insure that one/both parent(s) are present at meetings, or offered the opportunity to participate.  Parents should receive yearly notification of meetings that includes the purpose, time & location of the meeting, in addition to who will be attending.  Meetings should be scheduled at a mutually agreed time/place. Parental Participation

 If parent(s) cannot attend, insure other methods of participation.  Schools should maintain detailed records of attempts to arrange meeting.  Schools should also take whatever action is necessary to insure that parent(s) understand proceedings.  Provide copy of the IEP to parents.  The child may participate when appropriate. Parental Participation