Sunday, September 10, 2017

The ABC's of Special Education Law

The ABCs of Special Education Law
Special education means an individualized education program (IEP) for students with disabilities to receive a free and appropriate public education (FAPE) that addresses their unique needs to access, to the extent possible, the general education curriculum alongside, to the maximum extent possible, non-disabled peers.  According to the latest statistics available,[1] 13% of all public (and charter) school students have an IEP and are thereby designated as special education students under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
In 1975, Congress passed the Education of All Handicapped Children Act, Public Law, (P.L.) 94-142, with its main objective to provide a FAPE to each child with a disability.  This followed earlier legislation in the 1960s that grew out of the civil rights movement and sought to correct public schools excluding children and youth with disabilities, including those with severe disabilities who were often sent to institutions where they were left to languish.   
In the 47 years since, federal law has evolved (been re-authorized) and today we have the IDEA which is implemented through federal regulations issued by the U.S. Department of Education, specifically, 34 C.F.R. § 300.1 et. seq.  IDEA is “spending legislation,” meaning states that opt in receive federal monies in the form of grants, but are obligated to comply with the law or risk losing funding.  Every state in turn has its own statutory scheme and implementing regulations, or rules, promulgated by their state education departments that comport with the federal rules.  As “spending legislation,” the Act has teeth; U.S. Department of Education and state departments of education monitor enforcement.  IDEA is applicable to public schools and charter schools, but not private schools.  Parents who choose to send their children to private schools, or use the “vouchers” that are gaining popularity, cut their ties with public schools along with IDEA protections.
IDEA ensures that “eligible” students with disabilities, ages 3 to 21[2], are provided FAPE in the Least Restrictive Environment (LRE).    Special education, is defined as “specifically designed instruction, at no cost to the parent or guardian, to meet the unique needs of a disabled child…”[3]  Related services are supportive services that the student needs to benefit from special education. [4] The non-exhaustive list of related services includes speech & language therapy, psychological and counseling services, physical and occupational therapy, and transportation (to, literally and physically, access the school). 
Perhaps the most ambitious goal of the IDEA is inclusion, commonly known as
“mainstreaming.”  This requires students with disabilities be educated in the LRE, meaning they are to be included with non-disabled / typical peers to the maximum extent possible.     
The IEP is a legally binding written document functioning, essentially, as a blueprint for the child’s education.  It sets out the child’s individual needs and describes the services and supports the child will receive to meet those unique needs, and the LRE - the placement.  In accordance with FAPE, the IEP must be appropriate - the “A” in FAPE.  That is, it must include attainable, realistic goals, not too low and not too high.  Many disputes and ensuing litigation in special education arise over the interpretation of appropriateness for a child, usually in terms of whether the child is making “enough” progress.  In 1982, in a landmark case known as Rowley, the U.S. Supreme Court held that Congress did not intend for schools to maximize a child’s potential, but rather provide “a basic floor of opportunity through a program individually designed to provide educational benefit.”  Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).  The circuit courts disagreed on how much educational benefit an IEP must provide to be appropriate under the IDEA.  The U.S. Supreme Court recently attempted to settle the “how much” question in Endrew F. v. Douglas County School District RE-1, 580 U.S. __ (2017).  There, the Court held that to meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.  The jury is still out on the import of Endrew.  This author interprets the holding as mandating that IEP goals be ambitious, a higher standard than “some educational benefit.”
IDEA is also notable for the rights it confers on parents – procedural safeguards – the mandate being parental inclusion in decisions concerning the child’s eligibility for, and provision of, special education.  Parents are legally part of the eligibility team (called MET, Multidisciplinary Education Team) and IEP Teams.  Other procedural safeguards include the right to:  examine records; request independent evaluations at public expense; dispute resolution.
Not every student with a disability is “eligible” for special education.  To be eligible for special education, a student must have not only one of 13 disabilities, but also, because of the disability, need specialized instruction.  The disabilities, or eligibility categories, are Intellectual Disability (formerly referred to as Mental Retardation); Hearing impairment; Speech or language impairment; Visual impairment; Serious emotional disturbance; Orthopedic impairment; Autism; Traumatic brain injury; Other health impairment (i.e., ADHD, epilepsy, diabetes); Specific learning disability; Deaf-blindness; Multiple disabilities; Developmental delay (for ages 3–9).  (States can recognize additional disabilities.)  If the disability does not interfere with or impact the student accessing / benefitting from education, then the student does not require special education and will not be eligible for an IEP.  For example, a student who has autism but is high-functioning and social might not qualify.  Similarly, a student with ADHD may not need modified instruction, but may instead qualify for a “504 Plan” which provides a student with accommodations only, but not modifications.  Accommodations change the environment but the standards remain the same.  So, for example, a student with Attention Deficit Disorder (ADD) may have as an accommodation the opportunity to take a test in a separate, quiet room free of distraction, and have additional time, but the assignments are the same as those required of typical peers.
In sum, special education addresses a child’s needs due to his or her disability, and the general education curriculum is modified, thereby enabling the student to access education in the LRE, which ranges from the least restrictive environment (a general education classroom with a ”push-in” which means a special education teacher coming in to help with certain academic subjects, to a self-contained classroom of only disabled students, to a separate special education school, to a residential treatment center). 
Finally, special education and related services must be designed to meet their unique needs and prepare them for further education, employment, and independent living.  Thus, it is important to note that “education” is much more than just academics; education includes social, emotional, behavior, etc.   It is not enough for a student to achieve all As and Bs in academics and ace standardized tests if they are passive and withdrawn and do not make friends.  

For more information, contact the law firm of Kirsch-Goodiwn & Kirsch.     

[2] Age 22 in some states.
[3] 34 C.F.R. § 300.39. 
[4]  34 C.F.R. § 300.34.  

No comments:

Post a Comment