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Chapter 4

Ethical-Legal Issues in the Education of Pupils with Disabilities Under IDEA

Jacob, Decker, & Hartshorne

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Right-to-Education

• Prior to 1975, many public school districts had admissions policies that required children to meet certain standards before they were eligible to attend school (e.g., toilet trained, mental age of 5 years, ambulatory).

• Institutionalization was the recommended treatment for children with severe disabilities prior to the 1960s.

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Right-to-Education Court Cases

• Following successful court challenges to racial discrimination, parents of children with disabilities began filing lawsuits against public schools. Two key cases were Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (1971, 1972) and Mills v. Board of Education (1972).

• These cases alleged that the 14th Amendment equal protection clause prohibited states from denying children with disabilities access to the public schools.

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Response of U.S Congress: Two Types of Federal Legislation

Civil Rights Legislation Section 504 of The Rehabilitation Act of

1973 Americans with Disabilities Act of 1990 (ADA) [amended in 2008]

Federal Education Law The Education of All Handicapped Children

Act of 1975 (P.L. 94-142), renamed the Individuals with Disabilities Education Act (IDEA) in 1990.

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IDEA 2004

Individuals with Disabilities Improvement Act was signed into law by President G.W.H. Bush in 2004 (Pub. L. No 108-466).

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IDEA

• Part B: Funds for special education and related services to children with disabilities ages 3 to 21 years

• Part C: Funds for early intervention services for infants and toddlers

• IDEA is not a fully-funded mandate; it funds only a modest proportion of extra expenses schools incur providing special education to students with disabilities.

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Overview of IDEA Part B

• State Plans and Single Agency Responsibility

• The Zero Reject Principle• Children Eligible for Services• Early Intervening Services• Evaluation Procedures• Individualized Education

Program

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Overview of IDEA Part B

• Least Restrictive Environment• The Meaning of Appropriate

Education• Scope of Required Related

Services• Procedural Safeguards• Right to Private Action

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State Plans and Single Agency Responsibility

State Plans

Each state must have on file with the U.S. Department of Education (DOE) a plan that offers a free and appropriate education to all pupils with disabilities within the state, including children with disabilities who have been suspended or expelled from school. Age range is 3-21, but states may choose to not include ages 3-5 and 18-21.

State Agency Responsibility

The State Educational Agency (SEA) is responsible for offering a free and appropriate education (FAPE) to each child with a disability. One exception is youth 18-21 years old who are incarcerated in adult prisons and who did not have an individualized education plan (IEP) prior to incarceration.

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State Plans and Single Agency Responsibility

Private School Placement by the IEP Team

Publicly placed private school students are entitled to the same benefits and services as those attending public schools.

Unilateral Placement by Parents

Consistent with the number and location of parentally-enrolled children with disabilities attending private schools, the SEA/LEA must provide special education and related services in accordance with a service plan. Amounts expended for the provision of services by the LEA must be equal to a proportionate amount of available federal funds excluding funds expended for child find activities.

School systems are given broad discretion with regard to which private children with disabilities will receive services and what services will be provided.

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The Zero Reject Principle

Child FindIDEA requires the SEA to describe policies and procedures to assure that all children with disabilities ages birth through 21 years are “identified, located, and evaluated” as part of its State Plan.

Severity of the Disability The Zero Reject Principle also encompasses

the idea that the SEA must provide full educational opportunity to all children with disabilities regardless of the severity of their disability.

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2004 Exception to Zero Reject Principle

• Based on a review of case law and special education regulations in the late 1970s, Martin concluded that, “the parent cannot be allowed to block needed services any more than the school can be allowed to offer inadequate services” (1979, p. 103).

• In contrast, IDEA 2004 prohibits schools from using procedural safeguards to over-rule a parent’s failure to consent to the initial provision of services and allows parents to withdraw their child from special education at any time. Parents have the ultimate choice as to whether their child will receive special education services.

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Eligible Children – 2 Prong Test

• Under IDEA-Part B, “children with disabilities” means children evaluated in accordance with the procedures in the law as having:

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 need special education and related services because of those impairments.

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Eligibility

• Text focuses on federal definitions; practitioners also must know state rules.

• Controversial classifications:–Mental Retardation– Specific Learning Disability– Emotional Disturbance – Other Health Impairment (especially

attention disorders)

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Early Intervening Services

• For students in all grades, with a focus on K-3.

• For pupils who need additional academic and behavior support to succeed in the general education, but who have not been identified as needing special education.

• States may use up to 15% of federal special education funds for professional development and to provide educational and behavioral evaluations, services, and supports. Emphasis on scientifically-based interventions.

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Evaluation Procedures

• A full and individual evaluation of each child’s educational needs by a multidisciplinary evaluation team.

• Informed parental consent must be obtained prior to the initial assessment for special education eligibility.

• Test and evaluation materials must be valid for the purpose used, administered by trained personnel, and fair.

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Evaluation Procedures• Draw upon information from a variety of sources.

• Information obtained is documented and carefully considered.

• Eligibility, classification, and placement decisions are made by a team that includes the parents.

• Findings of an independent evaluation (IEE) must be considered.

• If a determination is made that a child has a disability and needs special education and related services, an individualized education program (IEP) must be developed for the child.

• The child’s placement must be in least restrictive environment (LRE) appropriate for the child.

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Individualized Education Program (IEP)

• The policy of providing an appropriate education for each child with disabilities is achieved in IDEA-Part B by the individualized education program or IEP.

• IDEA-Part B requires a written IEP for each child identified as disabled and in need of special education and related services.

• The IEP is written in a meeting that includes the parents and must be completed prior to placement in special education.

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Content of IEP

1. A statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum...

2. For a child who will take regular state and district-wide assessments, a statement of measurable annual goals, including academic and functional goals designed to the meet the child’s needs that result from the child’s disability…

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3. A description of how the child’s progress toward meeting the annual goals will be measured…and when periodic progress reports will be provided.

4. A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided… and a statement of the program modifications or supports for school personnel that will be provided to enable the child to advance appropriately toward attaining the annual goals, to be involved in and make progress in the general education curriculum, to participate in extracurricular and other nonacademic activities, and to be educated and participate with other children with disabilities and nondisabled children.

Content of the IEP

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5. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the general education class and in nonacademic activities.

6. A statement of any individual accommodations that are necessary to measure the academic achievement and functional performance of the child on state and district-wide assessments. If the IEP team determines that the child must take an alternate achievement assessment (or part of such assessment), a statement of why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child.

Content of the IEP

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Content of the IEP7. The projected date for the beginning of the

services and modifications, and the anticipated frequency, location, and duration of those services and modifications.

8. Beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP Team, and updated annually thereafter, the IEP must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and the transition services needed to assist the child in reaching those goals.

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Content of the IEP9. In a State that transfers rights to

the child at the age of majority, beginning at least not later than one year before the child reaches the age of majority under state law, the IEP must include a statement that the child has been informed of his or her rights that will transfer to him or her on reaching the age of majority.

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Implementation of the IEP• The school is accountable for providing the

special education instruction and related services outlined in the IEP. The description of services to be provided is an “enforceable promise.”

• The IEP is reviewed annually and before any change of placement. Suspension of more than 10 days is a change of placement requiring reevaluation of the IEP.

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Least Restrictive Environment• Special classes, separate schooling or

the removal of children with disabilities from the general education environment occurs only when the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.

• …to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other facilities, are educated with children who are nondisabled...

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Holland Case

The presumption of placement in regular classroom can be rebutted. Four factors to consider:

• Educational benefits available in regular classroom (with appropriate aids and services) as compared to special education classroom.

• Nonacademic benefits of interaction with children who are not disabled.

• Effect of the child’s presence on the teacher and other children in the classroom. (Must try behavior intervention plan to reduce disruptive behavior).

• The cost of educating the child in the general education classroom.

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Fifth Factor

• IDEA does not require regular education teachers to “modify the curriculum beyond recognition” (Daniel R.R. v. State Board of Education,1989, p. 1048).

• Similarly, Brillon v. Klein Independent School District (2004) suggested that a fifth factor that can be considered in making placement decisions, namely, whether the child can benefit from the general education curriculum “without substantial and burdensome curricular modifications.”

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Meaning of Appropriate Education

• Board of Education of the Hendrick Hudson Central School District v. Rowley has shaped all subsequent court decisions concerning the meaning of “appropriate” under IDEA.

• Rowley suggests that IDEA assures only an educational program reasonably designed to benefit the student, not the “best possible” or most perfect education.

• The Rowley decision set forth a 2-prong test of “appropriate,” namely, “Were IDEA procedures followed?” and “Is the program reasonably designed to benefit the child?”

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Rowley (cont).

• As the Supreme Court stated in Rowley, “We must be careful to avoid imposing [the court’s] view of preferable education methods upon the State” (Rowley, p. 207).

• Consistent with language in Rowley, parents do not have the legal right to dictate specific teaching methodologies for their child.

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Scope of Related Services• Under IDEA-Part B, a child must be

found eligible for special education before he or she qualifies to receive related services, and the related service must be necessary to assist the child with disabilities to benefit from special education.

• The related services provision includes school health services and counseling services, but medical services are provided only for diagnostic and evaluation purposes to determine a child’s medically related disability. This is the medical exclusion.

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Cedar Rapids Community School District v. Garret F.

In 1999 the Supreme Court decided Cedar Rapids Community School District v. Garret F., a case concerning a ventilator-dependent student who required continuous, one-on-one nursing services to remain in school. Contrary to previous lower court rulings, the Supreme Court held that the school must provide full-time nursing services if such services are necessary for a child with a disability to benefit from special education. Schools are not responsible for services that must be performed by a physician, but the nursing services a child needs to benefit from special education must be provided without regard to cost to the school.

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Procedural Safeguards

Parents have right to confidentiality of records and right to examine records; right to give consent prior to evaluation; right to written prior notice before changes are made in identification, evaluation, placement, and special services; right to present findings from an independent evaluation; right to resolution of complaints by a resolution meeting, mediation, or an impartial hearing officer. If the parent or the school is not satisfied with the decision of the hearing officer, they may appeal to the SEA for an impartial review of the hearing and the decision of the hearing officer. Parents (and the school) also have right to bring civil action in court.

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Procedural Safeguards

Parents have right to confidentiality of records and right to examine records; right to give consent prior to evaluation; right to written prior notice before changes are made in identification, evaluation, placement, and special services; right to present findings from an independent evaluation; right to resolution of complaints by a resolution meeting, mediation, or an impartial hearing officer. If the parent or the school is not satisfied with the decision of the hearing officer, they may appeal to the SEA for an impartial review of the hearing and the decision of the hearing officer. Parents (and the school) also have right to bring civil action in court.

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Right of Private Action

IDEA grants the parent and the school the right to civil action if they are not satisfied with the SEA decision. This means that parents may initiate a court action against the school on behalf of a child with disabilities if they believe the school has violated the provisions of IDEA with respect to their child. Except for very unusual circumstances, parents are required to exhaust administrative remedies (e.g., due process hearings) available to them before they pursue a court action. The party (parents or school) that initiates a court action bears the burden of persuasion.

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The Handicapped Children’s Protection Act of 1986

In 1986, Congress enacted the Handicapped Children’s Protection Act of 1986 (Pub. L. No. 99-372), an amendment to IDEA which provides: “In any action or proceeding brought under this subsection, the court in its discretion, may award reasonable attorney’s fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party” (20 U.S.C. 1415[a][4][B]).