Questions about the IDEA

The Individuals with Disabilities Education Act (IDEA) has been amended! This is the law that guides how schools deliver special education and related services to students with disabilities.

You will be reading about the IDEA in this publication. This note is to alert you that, while much of the law remains essentially the same, some aspects have changed as a result of the amendments just passed in June, 1997. Bear this in mind as you read about the IDEA in this publication.
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This document looks specifically at the mandates and requirements of the Individuals with Disabilities Education Act (IDEA), the federal law that supports special education and related services programming for children and youth with disabilities.


Table of Contents

 

Part I:
Background Information
Part II:
Purposes and Promises of the IDEA
Part III:
Accessing Services
Part IV:
The IEP
Part V:
Procedural Safeguards
Part VI: 
Additional Resources
Attachment A: 
IDEA’s Definitions of Disabilities 
Attachment B: 
Excerpts from Appendix C of IDEA’s  Regulations 

______________________PART I:
Background Information on the IDEA

Brief History of the IDEA

The federal law that supports special education and related service programming for children and youth with disabilities is called the Individuals with Disabilities Education Act (IDEA), [formerly the Education for the Handicapped Act (EHA)]. Public Law 94-142 (the Education of All Handicapped Children Act), which was originally enacted in 1975 to establish grants to States for the education of children with disabilities, has been amended several times. Under Part B of the IDEA, all eligible school-aged children and youth with disabilities are entitled to receive a free appropriate public education (FAPE).

In 1986, the EHA was amended by P.L. 99-457 to provide special funding incentives for States that would make a free appropriate public education available for all eligible preschool-aged children with disabilities ages three through five. Provisions were also included to help States develop early intervention programs for infants and toddlers with disabilities; this part of the legislation has become known as the Part H Program.

The EHA was amended again in 1990 by P.L. 101-476, which, among other things, changed the name of the legislation to the Individuals with Disabilities Education Act, or IDEA. The IDEA has been amended once, by P.L. 102-119.

The IDEA is an important federal law, because it requires that a free appropriate public education, which includes special education and related services, be available to children and youth with disabilities in mandated age ranges. This  provides a general overview of the IDEA and its regulations as they relate to school-aged children, and is intended to help you understand the law
and how it mandates services for your school-aged child with a disability. Information about services available to infants and toddlers through the Part H program and for preschool children with disabilities is presented in a separate document entitled A Parent’s Guide: Accessing Programs for Infants, Toddlers, and Preschoolers With Disabilities.

The information is drawn specifically from the IDEA, as passed by Congress in 1990 and codified into law under 20 United States Code (USC), Chapter 33. Final regulations for this Act were published in the Federal Register on September 29, 1992, with a correction appearing in the Federal Register on October 27, 1992. These final regulations replace those developed for the EHA and are currently guiding school systems in how they design and implement their special education and related services programs.

The entire IDEA and Its Regulations can be downloaded from the U.S. Department of Education  site.

Obtaining a Copy of Your State’s Special Education Law

It is also important to become familiar with your State special education law. The IDEA is a Federal law and, as such, provides minimum requirements that states must meet in order to receive federal funds to assist in providing special education and related services. Your state law and regulations may go beyond the Federal requirements, and it is important to know their specifics. You may want to contact your State Department of Education, Office of Special Education, and ask for a parent handbook on special education.

Finding Specific Sections of the Regulations

As you read the explanations about the law below, you will find references to specific sections of the Federal regulations, such as Section 300.1. You can use these references to locate the precise sections in the Federal regulations that address the issue being discussed. For example, in the discussion of the IDEA’s purpose, you are given the reference Section 300.1. This reference tells you that, if you wanted to read the exact words the regulations use to define the IDEA’s purpose, you would look under Section 300.1 of the Code of Federal Regulations (CFR) for Title 34 (sometimes referred to as 34 CFR). In most cases through this News Digest, we have worded answers so that they use the Federal language almost verbatim.
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PART II:
Purposes and Promises of the IDEA:
Who is Eligible for Services and What Types of Services are Provided?

What is the purpose of the IDEA?

The major purposes of the IDEA are:

— to ensure that all children with disabilities have available to them a “free appropriate public   education” that includes special education and related services designed to meet their unique needs;

— to ensure that the rights of children and youth with disabilities and their parents are protected;

— to assist states and localities in providing for the education of all children and youth with disabilities; and

— to assess and ensure the effectiveness of efforts to educate children with disabilities. (Section 300.1)

What is a free appropriate public education?

Under the law, a free appropriate public education (FAPE) means special education and related services that:

— are provided to children and youth with disabilities at public expense, under public supervision and direction, and without charge;

— meet the standards of the State Education Agency (SEA), including the requirements of the IDEA;

— include preschool, elementary, or secondary school education in the State involved; and

— are provided in conformity with requirements for the individualized education program. (Section 300.8)

The requirements for an individualized education program (IEP) are found in Section 300.340 – Section 300.350 and are discussed in greater detail in Part IV of this document.

Who is eligible for services under the IDEA?

The regulations for IDEA define “children with disabilities” as including children (a) who have been evaluated in accordance with IDEA’s evaluation requirements (Section 300.530 – Section 300.534) (discussed later in this document); (b) who have been determined, through this evaluation, to have one or more of the disabilities listed below; and (c) who, because of their disability, need special education and related services. The disabilities listed by IDEA are:

— 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;
— specific learning disabilities;
— deaf-blindness; or
— multiple disabilities. (Section 300.7)

Attachment A of this News Digest provides the complete description of each of these disabilities, as contained in the regulations for IDEA.

For children aged 3-5, “children with disabilities” may include, at the State’s discretion, those children who are experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas:

— cognitive development;
— physical development;
— communication development;
— social or emotional development; or
— adaptive development; and
— who need, for that reason, special education and related services. (Section 300.7)

From birth through age 2, children may be eligible for services through The Infants and Toddlers with Disabilities Program (Part H) of the IDEA. This News Digest does not discuss the Part H program. For information about how to access services for infants and toddlers, contact NICHCY and request a copy of A Parent’s Guide: Accessing Programs for Infants, Toddlers, and Preschoolers With Disabilities.

What is special education?

Special education is defined as instruction that is specially designed, at no cost to you, to meet your child’s or youth’s unique needs. Special education can include classroom instruction, home instruction, instruction in hospitals and institutions, or other settings. It can also include instruction in physical education and vocational education. (Section 300.17)

Special education also includes speech pathology or any other related services, if the service consists of instruction that is specially designed, at no cost to you, the parents, to meet your child’s unique needs and is considered by the State as special education rather than a related service. (Section 300.17)

Where is special education instruction provided?

As listed above, special education instruction can be provided in a number of settings, such as: instruction in regular classrooms, special classrooms, special schools, home instruction, and instruction in hospitals and institutions (Section 300.17). Schools must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities [Section 300.551(b)(1)]. Unless a child’s individualized education program (IEP) requires some other arrangement, the child must be educated in the school he or she would attend if he or she did not have a disability [Section 300.552(c)].

Special education instruction must also be provided to students with disabilities in what is known as the Least Restrictive Environment, or LRE. Both the IDEA and its regulations have provisions that ensure that children with disabilities are educated with nondisabled children, to the maximum extent appropriate. The IDEA’s LRE requirements apply to students in public or private institutions or other care facilities as well [Section 300.550(b)(1)]. Each state must further ensure that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when 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 [Section 300.550(b)(2)].

What are related services?

Related services are defined in the regulations as transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education. Related services may include:

— audiology;
— psychological services;
— physical therapy;
— occupational therapy;
— medical services for diagnostic or evaluation purposes only;
— school health services;
— recreation, including therapeutic recreation;
— counseling services, including rehabilitation counseling;
— early identification and assessment of disabilities in children;
— social work services in schools;
— transportation;
— speech pathology; and
— parent counseling and training. (Section 300.16)

The list of related services identified in the IDEA regulations is not intended to be exhaustive and could include other developmental, corrective, or support services if they are required to assist a child with a disability to benefit from special education.

You should inform yourself fully about the related services that are listed (and described in some detail) in the law.
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PART III:
Accessing Services

What is the first step in obtaining special education and related services?

Before a child can receive special education and related services for the first time, an initial evaluation of the child, also known as a preplacement evaluation, must be conducted (Section 300.531). This evaluation must meet the requirements stated in Section 300.532 of the IDEA’s regulations. Parental permission — that is, written consent — must be obtained before this evaluation can be conducted [Section 300.504(b)(1)(i)].

How do I receive an evaluation of my child?

There are at least two ways in which your child may be selected to receive an evaluation:

(1) You may request that your child be evaluated. You can call or write to the Director of Special Education or the Principal of your child’s school. If the school district suspects that your child has a disability, your child must be evaluated. If the school refuses to evaluate your child because it does not suspect that your child has a disability, you must be given a written notice of the refusal and a full explanation that explains the reasons for the refusal [Section 300.504(a)(2) and Section 300.505(a)(2)]. This notice must also give you a full explanation of the procedural safeguards available to parents under the Individuals with Disabilities Education Act, including your right to challenge the school district’s refusal by requesting an impartial due process hearing [Section 300.505(a)(1)].

(2) The school may initiate a request to evaluate your child. Based on a teacher’s recommendation, or observations or results from tests given to all children in a particular grade, a school may recommend a child for further screening or assessment to determine if he or she needs special education and related services. If your child is thought to need further testing, the school must tell you. You, as a parent, must give written permission before the school can evaluate your child for the first time [Section 300.504(b)(1)].

It is important for you to know that the law requires that parents be notified in writing before the school district evaluates their child for the first time. All written communication from the school must be in a form that parents can understand (e.g., in their native language if they do not read English, or in the mode of communication normally used by the individual, such as Braille or large print). It must state the action that is proposed or refused; the reasons for the proposal or refusal; the evaluation procedures, tests, or records used to support the proposal or refusal; and an explanation of the parents’ rights if they should disagree with the suggested actions or refusal to act, as well as any other options the agency considered and the reasons why those options were rejected (Section 300.505). Parents must give their consent in writing before an initial evaluation can be conducted. It is important to know that school districts must have procedures by which they can override a parental refusal of consent, which they may use if they believe a child should be evaluated. These are discussed later in this News Digest.

What does the evaluation process involve?

The regulations are very specific about how school districts must conduct evaluations of children and youth thought to have a disability. For one, evaluations must be conducted by a group of persons, called a multidisciplinary team. This team must include at least one teacher or other specialist who is knowledgeable about the area of the child’s suspected disability [Section 300.532(e)]. Thus, the multidisciplinary team conducting the assessment may involve, at the State’s discretion, professionals such as the following: school psychologist, speech and language pathologist, occupational or physical therapist, adaptive physical education therapist, medical specialists, educational diagnosticians, classroom teachers, or others.

The law also requires that no single procedure be used as the sole criterion for determining an appropriate educational program for a child [Section 300.532(d)]. Further, the child must be assessed in all areas related to the suspected disability. This includes, where appropriate, evaluating a child’s:

— health;
— vision;
— hearing;
— social and emotional status;
— general intelligence;
— academic performance;
— communicative status; and
— motor abilities. [Section 300.532(f)]

School districts must also be sure that the tests they select and use are not racially or culturally discriminatory (biased) against the child [Section 300.530(b)]. This provision of the law is meant to protect children of different racial or cultural backgrounds from misdiagnosis. For example, children’s cultural backgrounds may affect their behavior or test responses in ways that teachers or other personnel do not understand. Similarly, if a child speaks another language or has limited English proficiency, he or she may not understand directions or words on tests and may be unable to respond correctly. As a result, a child may mistakenly appear to be a slow learner or to have a hearing or communication problem. In order to prevent such mistakes, the law states that tests and other evaluation materials given to a child during the evaluation process must be provided and administered in the child’s native language or through another mode of communication, unless it is clearly not feasible to do so [Section 300.532(a)(1)].

In keeping with the requirements mentioned above, then, the multidisciplinary team must collect information about your child from a variety of sources, which could include you, the parent. In addition to testing, the evaluation process may include:

— observations by professionals who have worked with your child;

— your child’s medical history, when it is relevant to his or her performance in school; and

— information and observations from you about your child’s school experience, abilities, needs, and behavior outside of school, and his or her feelings about school.

What happens if I don’t agree with the evaluation results?

If parents of a child with a disability disagree with the results of the evaluation performed for or by the school, they have the right to obtain an Independent Educational Evaluation (IEE) (Section 300.503). This means that you can request that a qualified professional examiner or qualified evaluation clinic conduct another evaluation of your child. The examiner may not be employed by or involved in any way with the school. School districts generally maintain a list of qualified examiners and clinics who meet the State’s standards, because they are required to tell parents, upon request, where an IEE may be obtained [Section 300.503(a)(2)]. If the public agency maintains such a list, parents are not limited to the examiners on the list, if they can demonstrate that unique circumstances justify selection of another evaluator.

Who pays for the independent evaluation? The answer is that some IEEs are at public expense and others are paid for by the parents. For example, if you are the parent of a child with a disability and you disagree with the school’s evaluation, you may request an IEE at public expense. The school district may grant this request and pay for the IEE, or it may initiate a hearing to show that its own evaluation was appropriate. If the final decision of the hearing officer is that the school’s evaluation was appropriate, then you still have the right to an IEE but not at public expense [Section 300.503(b)]. As part of a hearing, a hearing officer may also request an IEE; if so, that IEE must be at public expense. Of course, you have the right to arrange to have your child independently evaluated at any time at your own expense. (Note: When the same tests are repeated within a short time period, the validity of the results can be seriously weakened.) Whenever an IEE is publicly funded, that IEE must meet the same criteria that the school district uses when it initiates an evaluation.

Regardless of who pays for the IEE, the school district is obligated to consider the results of this evaluation when making any decisions about the educational program of the child in question [Section 300.503(c)(1)]. Results of the IEE may also be presented as evidence at a hearing regarding the child [Section 300.503(c)(2)]. For more information about hearings, see Part V of this document.

How are the evaluation results used?

Information gathered from formal tests and from observations by you and school personnel will first be examined to determine your child’s need (and, thus, eligibility) for special education and related services. Many school systems hold a meeting where they consider this one issue. They are not required to invite the parent to this meeting — often called an eligibility meeting. However, if you do attend, your child’s assessment results should be explained. The specialists who assessed your child will explain what they did, why they used the tests they administered, the results of your child’s tests, and what your child’s scores mean when compared to other children of the same age and in the same grade. Regardless of whether you attend the meeting, you must be notified as to its outcome.

If the evaluation results indicate that your child meets the definitions of one or more of the disabilities listed under IDEA (see Attachment A) and needs special education and related services, the results will form the basis for development of your child’s Individualized Education Program (IEP).

Will my child be evaluated again in the future?

In most cases, yes. The first time your child is evaluated is called a preplacement evaluation (Section 300.531). Evaluations must also be conducted at least every 3 years (called a triennial evaluation) after your child has been placed in special education [Section 300.534(b)]. Re-evaluations can also occur more frequently if conditions make it necessary, or if you or your child’s teacher request(s) a re-evaluation [Section 300.534(b)].
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PART IV:
The Individualized Education Program

Question: What is an Individualized Education Program (IEP)?

An IEP is a written statement of the educational program that is designed to meet a child’s unique needs. Two purposes of the IEP are:
— to establish learning goals for the child; and
— to state the services that the school district will provide.

The law requires that every child receiving special education services have an IEP (Section 300.342). The IEP must include statements about:

— the child’s current levels of educational performance. This may include information concerning his or her: academic achievement, social adaptation, prevocational and vocational skills, sensory and motor skills, self-help skills, and speech and language skills;

— the specific special education and related services to be provided and the extent to which the child will be able to participate in regular educational programs (see discussion of LRE in Part II);

— annual goals, including short-term instructional objectives (individual steps which make up the annual goals);

— when services are expected to begin and how long they are expected to last;

— how the school district will determine (at least on an annual basis) whether the short-term instructional objectives are being achieved. (Section 300.346)

Appendix C of the regulations for IDEA contains additional guidance on the IEP process. Serving as a “Notice of Interpretation” and using a question and answer format, Appendix C can assist the team developing a child’s IEP. Excerpts of this Notice of Interpretation — relating to how teams should describe a student’s present levels of educational performance, and develop and state annual goals and short-term objectives for that student — are presented in Attachment B of this document.

Your child’s need for assistive technology devices or services, or both, may also be included in the IEP. Assistive technology devices are defined as any item, piece of equipment, or product system that is used to increase, maintain, or improve the functional capabilities of individuals with disabilities (Section 300.5). Assistive technology devices can be acquired commercially off the shelf, modified, or customized. Since the explosion of technology in our country, assistive technology devices have become more widely available and have been shown to dramatically improve the functional capabilities of individuals with disabilities in terms of mobility, communication, employment, and learning. Many of the devices have been instrumental in allowing students with disabilities to be educated in regular classrooms, working and learning alongside of their nondisabled peers. Some examples of these devices are: electronic communication aids, devices that enlarge printed words on a computer screen, devices that facilitate communication for individuals with hearing impairments, prosthetic devices, braille writers, and keyboards adapted for fist or foot use.

Assistive technology services are any services that directly assist an individual with a disability to select, acquire, or use an assistive technology device. This includes evaluating the needs of the child, including a functional evaluation in the child’s customary environment. The term also includes such services as:

— purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices;

— selecting, designing, fitting, customizing, adapting, applying, retaining, repairing, or replacing assistive technology devices;

— coordinating and using other therapies, interventions, or services with assistive technology devices (such as those associated with existing educational and rehabilitation plans and programs);

— providing training and technical assistance to the individual with disabilities and his or her family, if appropriate;

— providing training and technical assistance to professionals, employers, or others who provide services to, employ, or are substantially involved in the major life functions of children with disabilities. (Section 300.6)

Regulations for the IDEA state that schools must make assistive technology devices and/or services available to a child with a disability, if required as part of that child’s special education, related services, or supplementary aids and services (Section 300.308). A recent policy letter from the Office of Special Education Programs (OSEP) states that “consideration of a child’s need for assistive technology must occur on a case-by-case basis in connection with the development of a child’s Individualized Education Program (IEP)” (Goodman, 16 Education of the Handicapped Law Report 1317, OSEP 1990). Thus, when the IEP of a student is being developed, reviewed, or revised, the school district must assess, if appropriate, the student’s need for an assistive technology device or service, determine those devices or services that will facilitate the student’s special education (particularly those that will facilitate his or her education in the regular educational environment), list them in the IEP, and then provide them to the student.

The IDEA makes an important change to the EHA for the IEPs of students with disabilities beginning at age 16, or, if determined appropriate, for students younger than age 16. Under the IDEA, the IEPs of these students must also state what “transition services” each student needs to prepare for the transition from school to a postschool world. Before the student leaves the school setting, the IEP must also include statements of the school’s responsibilities, as well as those of any other participating agency (e.g., Vocational Rehabilitation), if appropriate for providing or paying for needed transition services. (Section 300.346)

Transition services are defined by the IDEA as “a coordinated set of activities for a student, designed within an outcome-oriented process, that promote movement from school to post-school activities, including:

— postsecondary education;
— vocational training;
— integratd employment (including supported employment);
— continuing and adult education;
— adult services;
— independent living; or
— community participation. (Section 300.18)

The coordinated set of activities described above must:

(1) Be based on the individual student’s needs, taking into account the student’s preferences and interests; and

(2) Include —
— (i) Instruction;
— (ii) Community experiences;
— (iii) The development of employment and other post-school adult living objectives; and
(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation. (Section 300.18)

Transition services can be provided as special education if they are specially designed instruction or as related services if they are required to assist a student with a disability to benefit from special education.

Because of the importance of transition services to youth with disabilities, you may wish to contact NICHCY and ask for a free copy of NICHCY’s Transition Summary called Transition Services in the IEP. This document looks at transition services in detail.

Who develops the IEP?

The IEP is developed by a team whose members meet, review the assessment information available about the child, and design an educational program to address the child’s educational needs. This meeting, called an IEP meeting, must be held within 30 calendar days after the school district determines, through a multidisciplinary evaluation, that a child has a specified physical or mental impairment and needs special education and related services [Section 300.343(c)]. A child’s IEP review must occur at least annually thereafter.

According to the regulations (Section 300.344), the following people must be invited to attend the IEP meeting:

— One or both of the child’s parents (subject to requirements in Section 300.345);

— The child’s teacher(s). If the child has more than one teacher, State policy or law may specify which teacher should participate;

— A representative of the school other than the child’s teacher (this person must be qualified to provide special education or supervise its provision);

— Other individuals, at the discretion of the school or the parents; and

— The child, when appropriate.

Depending on the purpose of the meeting, other participants may be involved. For example, when a child has been evaluated for the first time, the school must also ensure that a member of the evaluation team participates in the IEP meeting, or that someone knowledgeable about the evaluation procedures and results (e.g., a representative of the school or the child’s teacher) is present. [Section 300.344(b)] If one of the purposes of the meeting is the consideration of transition services for the student, then the school must also invite the student and a representative of any other agency that will be responsible for providing or paying for the transition services [Section 300.344(c)]. “For all students who are 16 years or older, one of the purposes of the annual meeting will always be the planning of transition services, since transition services are a required component of the IEP for these students” (Section 300.344, Note 2).

So we, as parents, are involved in developing our child’s IEP?

Yes. The law is very clear that parents have the right to participate in the meeting where their child’s IEP is developed. Therefore, your school district must ensure that you have the opportunity to participate in your child’s IEP meeting and to contribute to the development of his or her IEP. This means that:

— The school district must notify you of the meeting early enough to ensure that you will have an opportunity to attend. [Section 300.345(a)(1)]

— The notice given you by the school district must indicate the purpose, time, and location of the meeting. If one of the purposes is to consider transition services, the notice must indicate this. [Section 300.345(b)(1) and Section 300.345(b)(2)]

— The notice must also identify who will participate in the meeting. If transition services are to be discussed, the notice must indicate that the school will invite your child and identify any other agency that will be invited to send a representative. [Section 300.345(b)(1) and Section 300.345(b)(2)]

— The school must attempt to schedule the meeting at a time and place agreeable to you and the school. [Section 300.345(a)(2)]

— The school must take whatever action is necessary to ensure that you understand the proceedings at the meeting, including arranging for an interpreter for you, if you are deaf or if your native language is other than English. [Section 300.345(e)]

The regulations state that the school may hold the IEP meeting without the parents if they are unable to attend. However, the school must have a record of its attempts to arrange a mutually-agreed-upon time and place. This can be accomplished by keeping detailed records of telephone calls made or attempted and the results of those calls, copies of all letters sent to the parents and any responses received, and a record of any visits made to the parents’ home or work and the results of those contacts. [Section 300.345(d)] The regulations also state that if neither parent can attend the IEP meeting, the school must use other methods to ensure their participation, including individual or conference telephone calls [Section 300.345(c)].

What occurs during an IEP meeting?

As has been said, the purpose of the IEP meeting is to develop a child’s IEP. The meeting can serve as an excellent communication vehicle between parents and the school. It enables the parents and the school to decide what the child’s needs are, what services will be provided, and what outcomes can be anticipated, and to specify these in the IEP.

Many school districts conduct the IEP meeting separately from the meeting where the child’s eligibility for services was determined. Other school systems combine the eligibility meeting and the IEP meeting, moving directly into developing the IEP once a child has been determined eligible for services. Whichever approach the school district uses, once your child’s eligibility for services has been determined, the focus of discussion will be on developing his or her IEP. You and the other members of the team will discuss:

— what educational goals and objectives are appropriate for your child;

— what type of special education your child needs;

— which related services are necessary to ensure your child benefits from his or her special education;

— what assistive technology devices or services (if any) your child needs to benefit from special education;

— what transition services are necessary to prepare your child for life after completing high school (this applies if your child is age 16 or older, or younger in some circumstances); and

— what placement alternatives exist (see discussion of LRE in Part II), and which are most appropriate.

— Volunteer to be a classroom or program parent. In this way, you can observe how things work in your child’s program or school and how your child interacts with others.

— Let the school or program know that you may be called if you are needed.

— Remember that both you and the school or program in which your child is enrolled want the best for your child. Working together can make this happen.
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PART V:
Procedural Safeguards —
What to Do When You Don’t Agree

The IDEA includes an entire section entitled “Procedural Safeguards.” These safeguards are designed to protect the rights of parents and their child with a disability, as well as to give families and schools a mechanism for resolving disputes.

Procedural safeguards under the IDEA (many of which have been discussed previously in this News Digest) include the right of parents to inspect and review their child’s educational records; the right to obtain an independent educational evaluation (IEE); the right to written prior notice on matters regarding the identification, evaluation, or educational placement of their child, or the provision of FAPE to their child; the right to request a due process hearing on these matters; which hearing must be conducted by a impartial hearing officer; the right to appeal the initial hearing decision to the State Education Agency (SEA) if the SEA did not conduct the hearing; the right of the child to remain in his or her present educational placement, unless the parent and the agency agree otherwise, while administrative or judicial proceedings are pending; the right to bring a civil action in an appropriate State or Federal court to appeal a final hearing decision; the right of the parent to request reasonable attorney’s fees from a court for actions or proceedings brought under the IDEA under the circumstances described in Section 615(e)(4) of the IDEA; and the right of parents to give or refuse consent before their child is initially evaluated or placed in a special education program for the first time.

We will look at some of these areas in this section, including: the confidentiality of education records; access to education records and the parents’ right to request that records be amended; and what parents can do if they do not agree with an educational decision made by the school system regarding their child.

Are my child’s records confidential?

There are provisions under the IDEA (and other Federal laws as well) that protect the confidentiality of a child’s education records. These safeguards address three issues: (a) the use of personally identifiable information; (b) who may have access to a child’s records; and (c) the parents’ right to request that their child’s records be amended.

Personally identifiable information means information that includes: (a) the name of the child, parent, or other family member; (b) the address of the child; (c) a personal identification number (such as the child’s social security number or student number); or (d) a list of personal characteristics or other information that would allow the child to be identified with reasonable certainty (Section 300.500). With a number of exceptions, you must give your consent before any personally identifiable information can be disclosed by the school district (Section 300.571). These exceptions are specified by your State or other participating agency’s policy in keeping with the regulations of Section 99.31 of the regulations for the The Family Educational Rights and Privacy Act (FERPA), P.L. 93-380. (Regulations for the entire FERPA can be found in 34 CFR Section 99.1 through Section 99.67. IDEA’s regulations on confidentiality — Section 300.560 through Section 300.576 — contain several references to FERPA.) You have the right to know your State’s policy or other participating agency’s policy in regards to the collection, storage, release, and destruction of personally identifiable information (Section 300.561). You can obtain this information through your district’s special education director or through the State’s Office of Special Education.

Access to a child’s education records is frequently a concern of parents. The IDEA guarantees you the right to inspect and review any records relating to your child that the school district collects, maintains, or uses regarding the identification, evaluation, and educational placement of your child and the provision of FAPE to your child (Section 300.502 and Section 300.562). Should you ask to review your child’s records, the school district must respond to the request without unnecessary delay and before your child’s IEP meeting or a due process hearing involving your child, and in no case later than 45 days after the request. You also have the right to reasonable requests for explanations and interpretations of the records. You may ask the school district or other participating agency to provide you with a copy of your child’s records, and you have a right to a copy if you do not live within commuting distance of your school district or participating agency. The school may charge you a reasonable fee for making copies, as long as this fee does not effectively prevent you from inspecting and reviewing the records. Schools may not charge you for searching for or retrieving the records [Section 300.566(b)]. Furthermore, you have the right to obtain from the school district or other participating agency a list of the types of education records that are collected, maintained, or used by the agency, and where these records are kept (Section 300.565).

In keeping with the requirements of the FERPA, only certain individuals besides you, as parents, may have access to your child’s records. These individuals may include, for example, teachers or officials of the school or state who have a legitimate educational interest in the records. The school or other participating agency is required by law to maintain a record of all parties who obtain access to a child’s educational records (with the exception of parents and authorized employees). This record should include the name of the person who accessed the records, the date, and the purpose for which the person was authorized to use the records (Section 300.563).

The right to request that records be amended is also given to parents under the law. If you believe the information in your child’s records is inaccurate or misleading or that information in the records violates your child’s right to privacy, you may request that the school district amend this information [Section 300.567(a)]. The district must then decide, within a reasonable amount of time, whether to comply with your request [Section 300.567(b)]. If the district or other participating agency decides to refuse your request, it must inform you of this decision, as well as advise you of your right to a hearing [Section 300.567(c)].

If you decide to challenge the school district’s or other participating agency’s refusal through a hearing, you have the right to present evidence showing why you feel the information in your child’s records should be amended (Section 99.23). The hearing must be conducted by an individual who does not have a direct interest in its outcome, and the educational agency or institution must make its decision in writing within a reasonable amount of time after the hearing (Section 300.570 of IDEA refers readers to Section 99.23 of FERPA). Should the decision be in your favor, the district or other participating agency must amend your child’s records and inform you in writing that it has done so [Section 300.569(a)]. If, however, the decision supports the school district’s refusal to amend the records, then you have the right to add a statement to your child’s records [Section 300.569(b)]. This statement would, in effect, comment upon the information in dispute and set forth reasons why you disagree with the school district. The district must then place your statement in the records, keep it there as long as the records are maintained, and share it with any party to whom the records are disclosed [Section 300.569(c)].

What can the school district do if parents don’t consent to their child’s initial evaluation or initial placement into special education?

There are two ways that parental consent can be withheld. One is that the parents simply do not respond to any of the school’s communications, thereby withholding consent through silence. The other is explicit denial of consent, meaning that parents refuse orally or in writing to allow their child to be evaluated for or placed into a special education program.

In both cases, the school district does have steps it can take that may or may not result in an overriding of parents’ refusal of consent. If the district feels strongly that the child should be evaluated to determine if a disability exists, or if the district feels strongly that the child should be placed into special education, the district can pursue the matter through the procedures specified in Federal or State law. Where State law requires parental consent, the school must follow procedures developed by the state, such as obtaining a court order authorizing the school to conduct the evaluation or place the child into a special education program [Section 300.504(b)(2) and Note 2]. If, however, the state has no legal requirement for parental consent outside of Federal regulations, then the school may use the IDEA due process procedures to obtain a decision that allows the initial evaluation or special education placement of a child to take place without parental consent [Section 300.504(b)(3)].

In any event, the school must notify the parents of its intended actions [Section 300.504(a)(1) and Notes 1 and 2]. Parents have rights at such a due process hearing, as well as the right to appeal decisions made at a due process hearing [Section 300.504(b)(3)]. (See discussion further below of due process hearings and the rights of parents at these hearings.)

What can I do if, at some point in time, I don’t agree with decisions the school makes concerning my child?

There are several, different procedures that you might want to use when you are not in agreement with the decisions recommended by the school with regard to your child’s identification, evaluation, educational placement, or the provision of FAPE. Five commonly used procedures are listed below. You may want to use one or more of these approaches; some may be more appropriate than others at different times and for different reasons. Parents may also find it useful to involve an advocate in some of these approaches. An advocate can help parents to understand their rights and responsibilities fully, as well as those of the school district, and can assist in discussions concerning whatever differences exist between parents and the school system. (To find out more about advocates in your area, contact a local disability group or parent group.)

(1) Discussion or conference with school staff. Staff may include teachers, counselors, principal, the director of special education, and even the superintendent.

(2) An IEP review. You may request an IEP review at any time you feel that the services your child is already receiving are inappropriate or insufficient, or if he or she is not making progress. If your child has received an independent educational evaluation, the IEP review conference would be an appropriate time to consider the results of that evaluation.

(3) Negotiation or mediation. Mediation is a dispute settlement process in which a third person tries to negotiate a solution or compromise to the dispute. The mediator will listen to the arguments and encourage all sides to make concessions or compromises. Some school systems are using an ombudsman (a person with negotiation skills) who acts as an independent third party. While Federal law does not require mediation as a dispute settlement process, it recognizes that it may serve a useful function. While states may elect to adopt a mediation process, a state cannot require that the parents use this process. Mediation may not be used to delay or deny a parent’s right to due process.

(4) Due process hearing. You may request a due process hearing if you do not agree with your child’s identification, evaluation, or educational placement, or any aspect related to the provision of FAPE to your child (Section 300.506). An impartial third party, called a hearing officer, must listen to the evidence that you and the school district present and will issue a decision that contains the relevant facts and the legal basis for the decision. More information about due process hearings is given below, under the next question.

(5) Complaint resolution procedures. Any individual or organization may file a complaint alleging that the State or other participating agency has violated a requirement of the IDEA. Complaints must be written and signed and must contain a statement alleging the requirements of the IDEA that the State or other participating agency has violated and the facts upon which the statement is based. Because the complaint resolution process tends to be less intimidating than a due process hearing, many parents may select this approach (rather than due process) to resolve disputes. The State educational agency is obligated to resolve such a complaint within 60 calendar days from the date of receipt, unless exceptional circumstances exist. The requirements governing complaints involving IDEA are found in Section 300.660 through Section 300.662.

An individual wishing to file a complaint must do so by writing directly to his or her State educational agency (SEA). Once the complaint is received, the SEA has the option of either investigating the complaint on its own or directing that the school district or other participating agency involved in the complaint conduct its own investigation. In either instance, the SEA must review all relevant information and make an independent determination as to whether a requirement of the IDEA has been violated. The SEA must conduct an on-site investigation, if it determines such an investigation to be necessary. The complainant also must be given the opportunity to provide information, either orally or in writing, regarding the complaint. Once the complaint resolution procedure is completed, the SEA must issue a written decision that addresses each of the allegations in the complaint and contains the reasons for the SEA’s decision.

A party to the complaint who disagrees with the State’s final decision has the right to appeal that decision by requesting review from the U.S. Secretary of Education. Secretarial review of complaints involving Part B is the responsibility of the Assistant Secretary for the Office of Special Education and Rehabilitative Services (OSERS). To find out more about your State’s complaint procedures, contact the Director of Special Education at your SEA and request a copy of these procedures. Additional clarification is also available about how the due process procedure and the state complaint process operate as distinct and separate remedies; specific guidance is provided in this regard in the December 4, 1991 letter of clarification from the United States Department of Education (Davila, 1991).

What is a due process hearing?

Parents have the right to request a due process hearing if they disagree with their child’s identification, evaluation, or educational placement, or any aspect related to the provision of a free appropriate public education (Section 300.506). A due process hearing involves an impartial third party — called a hearing officer — who hears the evidence and issues a decision based upon that evidence and the requirements of the IDEA. This person cannot be an employee of the school district involved in educating or caring for the child, nor can this person have any personal or professional interest that might conflict with his or her objectivity in the hearing [Section 300.507(a)(1)-(2)]. It is important to note that just because the school district pays this person to serve as a hearing officer, he or she is not considered to be an employee of the school [Section 300.507(b)].

The due process hearing must be conducted by the SEA or the school district directly responsible for the child’s education, as specified by the State. The school district must also tell parents of any free or low-cost legal (or other relevant) service available in the area, if parents request such information [Section 300.506(c)]. The due process hearing must be completed and a copy of the decision mailed to parents and school officials within 45 days of the parents’ request (Section 300.512); however, the hearing officer may grant a specific extension of time at the request of either party involved in the due process procedure.

The right to request a due process hearing, however, is not reserved solely for parents. The public educational agency also has the right to initiate a hearing if parents refuse to give consent to the initial evaluation or placement of their child into a special education program [Section 300.504(b)(3)].

All persons involved in the due process hearing — including the parents — have the right to:

— be accompanied and advised by an attorney or by individuals with special knowledge or training with respect to the problems of children with disabilities;

— present their case, including documentary evidence and witnesses;

— confront, cross-examine, and compel the attendance of witnesses;

— prohibit evidence from being introduced at the hearing that has not been disclosed to them at least five days before the hearing; and

— obtain a written or electronic verbatim record of the hearing. (Section 300.508)

Parents have the right to open the hearing to the public and to have their child attend [Section 300.508(b)].

At the hearing, the arguments and evidence of both the parents and the school district are presented before the impartial hearing officer, who then gives a decision. The decision is considered final, unless one of the parties involved in the hearing appeals the decision to the SEA (Section 300.510). (Appeal to the SEA is available only if the SEA did not conduct the hearing.) If the hearing decision is appealed, the SEA then conducts an impartial review of the hearing, examining the entire hearing record and seeking additional information, if necessary. If the reviewing official wishes to, he or she can allow both parties to submit oral and/or written arguments. The matter must be resolved and a copy of the final decision must be mailed to both parties within 30 days of the request for a review (Section 300.512).

A parent or a public educational agency who disagrees with an initial hearing decision for which no appeal is available also has the right to bring a civil suit (Section 300.511). It is important to realize, however, that civil actions can become quite costly and are certainly frustrating and time-consuming. When possible, it is far more productive to resolve disputes through trying some of the suggestions given above, such as conferences and mediation. Getting additional information and support are also important in resolving disputes. You may want to seek advice from the Parent Information and Training Project or the Protection and Advocacy Agency in your State.
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PART VI:
Additional Resources

As was mentioned at the beginning , two of the best resources a parent can have in regard to the educational rights of their child with a disability are copies of the law itself and the Federal regulations written for the law. Refer to Part I of this document for information about where and how to obtain these resources. Information about how your State implements the law is also useful; State policies are generally available by contacting your school district or State’s Director of Special Education Programs.

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References

Family Educational Rights and Privacy Act (P.L. 93-380), Code of Federal Regulations, Title 34, Parts 99.1 – 99.67, 1988.

Goodman, 16 Education of the Handicapped Law Report (EHLR) 1317, OSEP 1990. (Available from LRP Publications, 747 Dresher Road, Suite 500, P.O. Box 980, Horsham, PA 19044-0980. Telephone:             (215) 784-0860      .)

Individuals with Disabilities Education Act (P.L. 101-476), 20 U.S.C. Chapter 33, Sections 1400-1485, 1990.

U.S. Department of Education. (1992, September 29). Assistance to states for the education of children with disabilities program and preschool grants for children with disabilities: Final rule. Federal Register, 57(189), 44794-44840.

U.S. Department of Education. (1992, October 27). Assistance to states for the education of children with disabilities program and preschool grants for children with disabilities; correction; final rule. Federal Register, 57(208), 48694-48704.
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Attachment A
IDEA’s Definitions of Disabilities

The IDEA lists 13 separate categories of disabilities under which children may be eligible for special education and related services. This Attachment presents the IDEA’s definitions verbatim, as found in Section 300.7(b)(1)-(13).

(1) Autism
“Autism” means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has a serious emotional disturbance, as defined in paragraph (b)(9) of this section.

(2) Deaf-blindness
“Deaf-blindness” means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational problems that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

(3) Deafness
“Deafness” means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplication, that adversely affects a child’s educational performance.

(4) Hearing impairment
“Hearing impairment” means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.

(5) Mental retardation
“Mental retardation” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period that adversely affects a child’s educational performance.

(6) Multiple disabilities
“Multiple disabilities” means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational problems that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.

(7) Orthopedic impairment
“Orthopedic impairment” means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absense of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

(8) Other health impairment
“Other health impairment” means having limited strength, vitality or alertness, due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes that adversely affects a child’s educational performance.

(9) Serious emotional disturbance
“Serious emotional disturbance” is defined as follows:
(i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance —
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors;
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have a serious emotional disturbance.

(10) Specific learning disability
“Specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not apply to children who have learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, or emotional disturbance, or of environmental, cultural, or economic disadvantage.

(11) Speech or language impairment
“Speech or language impairment” means a communication disorder such as stuttering, impaired articulation, a language impairment, or a voice impairment that adversely affects a child’s educational performance.

(12) Traumatic brain injury
“Traumatic brain injury” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma.

(13) Visual impairment, including blindness
“Visual impairment including blindness” means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.

Note: If a child manifests characteristics of the disability category “autism” after age 3, that child still could be diagnosed as having “autism” if the criteria in paragraph (b)(1) of this section are satisfied.
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Attachment B
Excerpts from Appendix C of the Regulations for the IDEA —
Discussion of Selected Components of the IEP

Appendix C of the regulations for IDEA contains specific guidance for the team developing a student’s IEP. Using a question and answer format, Appendix C adds more detailed information about the IEP process than is available in the main body of the regulations. Parts of this “Notice of Interpretation” are excerpted below.

Present Levels of Educational Performance

— “The statement of present levels of educational performance will be different for each child with a disability.” (Question 36)

— In describing a child’s present levels of educational performance, “the statement should accurately describe the effect of the child’s disability on the child’s performance in any area of education that is affected, including (1) academic areas (reading, math, communication, etc.), and (2) non-academic areas (daily life activities, mobility, etc.).” (Question 36)

— Moreover, the statement “should be written in objective, measurable terms, to the extent possible. Data from the child’s evaluation would be a good source of such information…Whatever test results are used should reflect the impact of the disability on the child’s performance. Thus, raw scores would not usually be sufficient.” (Question 36)

— Furthermore, “there should be a direct relationship between the present levels of educational performance and the other components of the IEP. Thus, if the statement describes a problem with the child’s reading level and points to a deficiency in a specific reading skill, this problem should be addressed under both (1) goals and objectives, and (2) specific special education and related services to be provided to the child.” (Question 36)

Annual Goals

— The annual goals in the IEP “are statements that describe what a child with a disability can reasonably be expected to accomplish within a twelve month period in the child’s special education program.” (Question 38)

Short-term Instructional Objectives

— “Short term instructional objectives (also called IEP objectives) are measurable, intermediate steps between the present levels of educational performance of a child with a disability and the annual goals that are established for the child. The objectives are developed based on a logical breakdown of the major components of the annual goals, and can serve as milestones for measuring progress toward meeting the goals.” (Question 39)

— The short-term objectives are similiar to those used in daily classroom instructional plans, in that both are used (a) to describe what a child is expected to accomplish in a particular area in a specified time period, and (b) to determine the extent to which the child is progressing towards those accomplishments. (Question 39)

— However, the IEP objectives are different from those used in classroom plans, “primarily in the amount of detail they provide. IEP objectives provide general benchmarks for determining progress toward meeting the annual goals. These objectives should be projected to be accomplished over an extended period of time (e.g., an entire school quarter or semester). On the other hand, the objectives in classroom instructional plans deal with more specific outcomes that are to be accomplished on a daily, weekly, or monthly basis. Classroom instructional plans generally include details not required in an IEP, such as the specific methods, activities, and materials (e.g., use of flash cards) that will be used in accomplishing the objectives.” (Question 39)

— “There should be a direct relationship between the IEP goals and objectives for a given child with a disability and the goals and objectives that are in the special education instruction plans for the child. However, the IEP is not intended to be detailed enough to be used as an instructional plan. The IEP, through its goals and objectives, (1) sets the general direction to be taken by those who will implement the IEP, and (2) serves as the basis for developing a detailed instruction plan for the child.” (Question 41)

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