PDED 505 Special Education Legislation & Litigation

1. PDED 505Special Education Legislation & Litigation Individuals with Disabilities Education Improvement Act (IDEIA)

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

3. 6 major principles of IDEA: • Zero Reject • Non-discriminatory Testing • Individualized & Appropriate Education • Least Restrictive Environment (LRE) • Due Process • Parental Participation

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

5. Zero Reject (continued) Eligibility • see Reg § 300.101 (IDEIA, 2004) • “A free appropriate public education must be available to all children residing in the state between the ages of 3 and 21, inclusive…” (emphasis added) • See “Limitations to FAPE” in Reg § 300.102 • Having a disability is not enough of a requirement for special education services.   A student's disability must hinder the educational process as well.  If a disability does not impact learning, there is no need for special education. 

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

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

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

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

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

11. Non-discriminatory Testing 3 purposes of evaluation • Describe the child’s functioning, noting strengths & weaknesses • Identify and define any outstanding needs the child exhibits • Determine eligibility and appropriate education

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

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

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

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

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

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

18. Individualized Appropriate Education • the right to a meaningful educational experience • What is an appropriate education?????

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

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

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

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

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

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

25. Individualized Appropriate Education Applications of Appropriateness • determining appropriateness must be made on an individual basis • other considerations of appropriateness: • LRE • services available • co$t:  this is only relevant when choosing between several options, all of which must offer an appropriate education; neither high nor low cost renders something appropriate or inappropriate

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

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

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

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

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

31. Due Process • Due process hearings usually fall into 5 categories: • identification • evaluation • placement • components of FAPE • related services • Both parties must pursue due process hearings before entering regular judicial channels

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

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

34. Amendments to P.L. 94-142 the IDEA is composed of 4 parts: • Part A:  General Provisions section •  Part B:  Grants to States Program •  Part C:  Infants and Toddlers Program •  Part D:  Support Programs

35. Amendments to P.L. 94-142 • Congress periodically reviews and reauthorizes Parts C & D (usually every 5 years) • Part B is permanently authorized • The following summarizes the changes to P.L. 94-142 during subsequent reauthorizations...

36. Amendments to P.L. 94-142 P.L. 98-199 (1983) • reaffirmed all major provisions of P.L. 94-142 • expands research & services for transition of secondary students from school to work • provides training information to parents/volunteers through parent training and information centers

37. Amendments to P.L. 94-142 P.L. 99-457 (1986) • reaffirmed all major provisions of P.L. 94-142 • mandated special ed. & related services for 3 - 5 year-olds • encouraged providing special education to 0 - 2 year-olds • more $$$ for states that provide early childhood special education

38. Amendments to P.L. 94-142 P.L. 101-476(1990) / P.L. 102-119(1991) • reaffirmed all major provisions of P.L. 94-142 • renamed P.L. 94-142 "IDEA" • changed the term "handicap" to "disability" throughout the law • added autism and traumatic brain injury as disability categories • mandated transition services • IEP must contain statement of transition services for 16 year olds • added: therapeutic recreation, assistive technology, social work, & rehabilitation counseling as related services

39. Amendments to P.L. 94-142 IDEA 1997 • reaffirmed all major provisions of P.L. 94-142 • requires parental consent for all evaluations • must use evaluation methods that produce information that is instructionally relevant • reduce unnecessary testing—dispense with unneeded testing @ 3 year evaluation • IEP must explain the extent to which a child is not participating with nondisabled students in the regular classroom

40. Amendments to P.L. 94-142 IDEA 1997 (continued) • 1 regular education teacher must be on IEP team (if child is participating in regular education) • include parents in any group that determines child placement • schools must report periodically to parents on progress toward achieving annual goals; schools must report as often as they do with students without disabilities (e.g., progress reports, etc.) • offer mediation when a due process hearing is required

41. Amendments to P.L. 94-142 IDEA 1997 (continued) • schools may unilaterally transfer a child with disabilities who brings a weapon to school to an interim educational placement for up to 45 days • hearing officers are given this authority to transfer if child’s continued presence is "substantially likely" to result in injury to the child or others • "manifestation determination": to determine whether a child’s behavior that violates school rules is related to the disability • if behavior is a manifestation—cannot be disciplined • must determine this before suspension/ expulsion

42. Amendments to P.L. 94-142 IDEA 1997 (continued) • special ed./ related services must remain available to children expelled/suspended • states must have policies/procedures to ensure that early intervention services are provided to children and families in their natural environment • IEP must contain statement of transition services for 14 year olds

43. Amendments to P.L. 94-142 IDEIA 2004 To be covered throughout this course!!!

44. Granite School District v. Shannon M. (1992) • For purposes of this action, the parties have stipulated to the following facts. Shannon is a six-year-old student who attended kindergarten classes at Granite’s Orchard Elementary during the 1989-90 school year. She suffers from congenital neuromuscular atrophy and severe scoliosis and is confined to a motorized wheelchair. Shannon is classified as "orthopedically impaired" under the Act [IDEA]. She breathes through a tracheotomy tube in her windpipe which must be suctioned to loosen mucous and reduce the chances of a potentially life-threatening mucous plug. Shannon also receives her food through a nasogastric tube, which the nurse attends to. Shannon’s nurse typically suctions Shannon’s tracheostomy tube five times during a three-hour school day, including the bus ride. In spite of suctioning, Shannon’s tracheostomy tube occasionally gets a mucous plug. Shannon cannot breathe until the plug is broken up or the tracheostomy tube is changed. When a plug occurs, Shannon’s caretaker uses saline solution, tries to suction, and then changes the tube if the first two do not work. Sometimes, Shannon needs an ambu bag (a portable ventilator) to open her lungs if her color is bad and she is not getting enough oxygen. Shannon needs someone available in case she has problems with respiration, suctioning, her nasogastric tube, pain or positioning. Granite has a "do not resuscitate" order from Shannon’s doctor stating that heroic measures are not to be used if Shannon should suffer cardiac arrest. In 1991 was scheduled to start first grade, which consists of a seven-hour day… • The issue before the court is whether the health care, which Shannon needs in order to attend school, must be provided by Granite as part of her free appropriate public education. More specifically, the court must decide whether full time nursing care for Shannon is a supportive service required by the Act, or whether it is a medical service excluded under the act.