The legal rights of students with disabilities

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Despite many legal challenges the following six key components of the original Education for All Handicapped Children Act have endured to this day. The first key component is the principle of a free appropriate public education (FAPE) for all children regardless of the severity of their disability - there are no exceptions. This principle includes all related services that may be required for the child to benefit from special education. These services are to be provided at no additional cost to the parents or guardians of the child with disabilities and may include a private school or facility if deemed appropriate.

The second key component is the principle of least restrictive environment (LRE) that states that children with disabilities will be educated, to the maximum extent possible, with general education students and in environments comparable to a general education classroom setting. Inherent within the concept of LRE is the notion of a continuum of service delivery options that reflect varying degrees of restrictiveness - from least to most integrated - for a child's educational placement. LRE is based on each child's individual educational needs not their disability and therefore may preclude more integrative placements with their peers without disabilities.

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The third key component is the individualized education program (IEP) which is an individually tailored document describing the educational plan for each child with a disability. To receive federal funds every local or state educational agency must develop an IEP for every child with a disability residing in its geographical boundaries. An IEP includes the following: 1) current level of school performance; 2) yearly and associated instructional objectives; 3) the instructional services to be provided to reach the objectives; 4) the degree to which the student will participate in general education instruction; 5) the plan for initiating services and duration of the services; and 6) the plan for annual evaluation that specifies objective criteria to ensure the student is reaching the stated instructional objectives and goals.

The fourth component is the principle of procedural due process. Parents are provided several protections pertinent to their child's education. These are - the rightful discretion of reports; to view all documentation; to get an independent evaluation for their child; to receive notification, in their native language, of adjustments in learning categorization and arrangement; also rights to have an unbiased trial including legal representation. Essentially this principle ensures that parents/guardians are guaranteed routine protection concerning recognition, assessment, and learning classification in regards to their child with disabilities.

The fifth component is the principle of nondiscriminatory assessment. This principle states that a multi-disciplinary team will evaluate children with disabilities using multiple assessments that are not racially, culturally, nor linguistically biased. All assessments will be administered in a language that is easily understood by the child. Multiple assessments are required, no single procedure or criterion shall be used to determine educational placement.

The sixth component is the principle of parental participation. PL 94-142 requires that parents or guardians be fully involved in any decision-making and planning that may involve their child receiving special education services. This begins at the initial request for referral for special education services through educational placement and subsequent reevaluations. Parent or guardian input is critical during IEP development as they are the primary advocates for their child.

The original PL 94-142 - Education for All Handicapped Children Act has been amended five times since its initial signing 33 years ago. In October 1986, Congress signed into law PL 99-457 that reauthorized and amended the Education for All Handicapped Children Act. This amendment extends all the rights and protections, including federal funding, of the original Act to include preschool children, ages 3 to 5, with disabilities. States will lose federal funding if they do not comply. It also created a new provision, the Handicapped Infants and Toddlers Program (Part H), to extend benefits to children from birth through age 2. This voluntary provision assists states in implementing comprehensive programs and services for very young kids and their relatives that are dealing with educational setbacks or disabilities. A multidisciplinary assessment and written individualized family service plan (IFSP) must be conducted for all eligible children and their families, the IFSP must be reviewed every 6 months, and the child or toddler must be reevaluated annually.

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In 1990, Congress signed into law PL 101-476 which changed the name of PL 94-142 to the Individuals with Disabilities Education Act (IDEA). The name change "…signifies a change in attitude to a more appropriate person-first point of view." (Gargiulo 2007) This amendment includes several additional changes: 1) requires that an individual transition plan (ITP) be developed as part of a students' IEP, no later than the age of 16; 2) expanded the scope of related services to include social work and rehabilitation counseling; 3) added autism and traumatic brain injury as disability categories; and 4) repeals states' immunity from parental lawsuits for noncompliance.

In June 1997, Congress again amended IDEA via PL 105-17. This amendment retains the major provisions of earlier amendments however it reorganizes IDEA into four parts (A-D) and revises the four of the six key components in the original 1975 IDEA. Some of the modifications include: 1) students with disabilities are not to be excluded when region wide test are administered; 2) involvement of regular teachers in the development, review, and update of a students IEP including increased emphasis on their participation and progress in the general curriculum; 3) ITP's will begin at age 14 and be updated annually; 4) allows schools to remove students with disabilities for behavior related to drugs or guns, or if they pose a threat of injury to themselves or others, however, they are still entitled to continuing educational services in accordance with their IEP; 5) allows states to offer mediation as an alternative to due process hearings; 6) and increases upper age limit of children allowed to be identified as developmentally delayed to the age of 9.

The latest amendment to IDEA occurred in December 2004 when President George W. Bush signed PL 108-446 the Individuals with Disabilities Education Improvement Act. Three revisions included in PL 108-446 more closely align IDEA with PL 107-110 the No Child Left Behind Act (NCLB) of 2001. These are: 1) states are required to modify liability procedures helping kids with delays to measure actual student academic progress in accordance with NCLB; 2) IEP's must emphasize academic performance also each academic institution is mandated to supply periodical information to caregivers showing the children's growth towards meeting IEP goals; and 3) special educators are required to demonstrate that they meet the same 'highly qualified' standards as defined for general education teachers in NCLB. Other revisions include changes to: IEP content and procedures; the purpose and definition of transition services; discipline protections and procedures; and adjustments to the appropriate course of privileges for the family unit.

Overall the process of evaluating a child for special education services consists of five steps: 1) prereferral; 2) referral; 3) evaluation/assessment; 4) eligibility determination, instructional programming, and appropriate placement; and 5) annual review and reevaluation of IEP/IFSP as required. This process ensures that all children, whether eligible or not for special education services, are provided the appropriate educational supports required to maximize their learning opportunities. Each step is summarized in the following paragraphs.

In the prereferral step, a collaborative team of educators meets to develop alternative instructional and/or management strategies to meet the needs of a student suspected of having a learning disability. The intervention team consists of common and special education teachers, connected examination contributors, administrators, and other school personnel that have specific pedagogical expertise. Specific pre-referral intervention strategies are developed and their effectiveness is documented to enable their use later in the referral/evaluation process as needed. The goal is to reduce unwarranted referrals for special education but still provide educational assistance to the student. Parents are typically not involved in this step unless they have requested intervention assistance.

In the second step of the process, a written request for referral is initiated either based on the information gathered in the prereferral step or via IDEA mandated screening. Reasons for the referral are varied but can be based on: deficient or inconsistent academic achievement; social or behavioral issues; child's cultural or linguistic background; or inappropriate teacher expectations or poor instructional strategies. The child's general education instructor, an administrator, related service provider, or his/her parent or guardian normally initiate the written request for referral. The referral documentation typically includes the following - student demographic information and a description of the students' academic and/or social performance (test scores, representative work, behavioral observation data, etc.). In some schools, a team of educational professionals reviews this documentation in order to decide if recommendation for special education services is warranted. Although not required by IDEA it is highly suggested that parental consent be sought during the referral screening process, as it is required by IDEA prior to the formal evaluation. If parental consent is not received than the student remains in their current placement and continues with intervention strategies developed during the prereferral step. As per IDEA, the school may request a due process hearing if they determine that special education services are warranted. However, the parent or guardians may still legally opt out of requesting special education services. The formal request for parental consent must be in the parent or guardians native language and contain the following two elements: 1) the intent, or refusal, to evaluate the student with rationale for this decision; and 2) a description of the evaluation and available alternatives.

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Once the parent or guardians written consent is received, the third step in the special education evaluation process is for the child to be assessed by a multi-disciplinary team of educational professionals. As per IDEA, the assessment team typically consists of a representative from the school district, a regular education teacher, a special education teacher, a school psychologist, and a variety of other inter- and transdisciplinary educational professionals as well as the child's parents or guardians. In some cases, the child may also be included in the meeting. This team conducts a multi-factor individualized assessment using both formal and informal assessment tools to establish a complete profile of the child's cognitive abilities as well as specific areas of concern such as any social/emotional or visual or speech impairments noted during the referral step. The team uses both norm- and criterion-referenced tests to measure the child's inter- and intra-individual differences during the evaluation process. Norm-referenced tests are associated with inter-individual differences and are used to compare a child's performance relative to their peer group. Data from these tests provide limited instructional information and are typically used to sort students for grading purposes. Criterion-referenced tests are linked with intra-individual differences and are used to measure a child's knowledge and understanding relative to specific standards or performance objectives, not in relation to other students. Data from these tests are useful for instructional planning as the teacher or evaluator typically establishes the criterion or mastery level. As per IDEA, no one procedure or test may be used as the sole basis for the evaluation, the multi-disciplinary team must use multiple sources of non-discriminatory assessments and information including work samples, observational data, and information from the child's parents or guardians. Additionally, the assessments must be presented in the child's native language or via other modes of communication if required to compensate for sensory, manual, or speaking skill impediments.

In the fourth step of the evaluation process, the team meets to interpret the assessment results and to determine if special education services would be appropriate for the student based on their state's criteria. If the child does not qualify for services, they remain in their present general education classroom and the parent/guardians must be sent a written notification that summarizes the evaluation and the rationale for the ineligibility. It is suggested that the team determine appropriate intervention strategies to address the issues found during the referral/evaluation process and to also determine the child's eligibility for services under Section 504 of PL 93-112 the Rehabilitation Act of 1973. As per IDEA, if the child does meet eligibility requirements for special education services the team then uses the data from the assessments to develop an IEP and/or IFSP as appropriate. The team and parents use the IEP and/or IFSP to collaboratively design, develop, and deliver educational services and instruction that address the individualized needs of the child and, in the case of toddlers or infants, also the family. IDEA does not specify format, appropriate level of detail, or how an IEP is constructed, however, it does contain the following eight elements:1. Current state of learning achievement, and ways that the impairment influences the student's participation in the general education curriculum or age-appropriate activities;2. Annual goals and associated short-term instructional objectives or benchmarks that are measurable and observable, address the needs of the child, and can be used to assess progress in the general education curriculum;3. Special education resources, related services, supplementary aids, and support staff necessary to coach the student to be engaged in the common program of study, to become a part of student activities outside the classroom, and get involved with students without disabililties;4. An explanation of nonparticipation that describes the

Amount of time the student isn't working among students without disabilities in the common curriculum and in extracurricular activities; 5. A statement of the specific modifications required for the child to participate in all state and district-wide assessments - IDEA & NCLB requirement - if the child cannot participate, even with the modifications, there must be a statement determining the motives of non- participation

and how the child will be alternatively assessed;6. Dates, frequency, location, and duration of services;7. At age fourteen and every year thereafter, a statement of the child's transition service needs in his or her courses of study; beginning at age sixteen (or earlier if deemed appropriate) a statement of needed transition services including interagency responsibilities; and under IDEA, one year before the child reaches the age of majority, a statement that they have been informed of the rights, if any, that transfer to him/her upon reaching the age of majority; and8. Also an explanation of how the child's progress towards the annual achievements are to be recorded and documented to the guardians annually. They must be informed just as much as guardians of non-disabled children are.

As well as some minor modifications to the above eight elements, an IFSP also includes a statement of the families concerns, priorities, and resources and the name of the service coordinator. As part of this step, the team must also determine where special education services will be provided. The LRE principle and the notion of a continuum of service delivery options, discussed previously, come into play to guide the decision-making process. The placement options range from the least restrictive/most integrated to the most restrictive/least integrated - i.e. regular classroom to hospitals and treatment centers. IDEA recognizes that there are a variety of placement options that meet the intent of FAPE and LRE based on the individual educational requirements of the child and therefore allows the school and parents wide latitude in determining the best placement.

During the fifth phase of the procedure the diverse rehabilitation panel combine with the caretakers of the student once a year to look over, and change possibly the student's IEP and/or IFSP. The student's educational advancements will establish any needed changes. The latest revision to IDEA, PL 108-446 the Individuals with Disabilities Education Improvement Act, is presenting the chance for fifteen states to test three year IEP's given they comform to the various policies for protection demands. This alternative can virtually decrease the quantity of documentation that regions have to create, examine, and keep up with annually. Caretakers can still request yearly IEP reviews for their child if desired.

References:Gargiulo, R.M. (2007). Special Education in Contemporary Society - An Introduction to Exceptionality, 2nd Edition. Belmont, CA: Thomson Wadsworth.