PDED 505 Special Education Legislation & Litigation

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PDED 505Special Education Legislation
Litigation

• Individuals with Disabilities Education
  Improvement Act (IDEIA)

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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

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6 major principles of IDEA

• Zero Reject
• Non-discriminatory Testing
• Individualized Appropriate Education
• Least Restrictive Environment (LRE)
• Due Process
• Parental Participation

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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

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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. 

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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.

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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.

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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. 

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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.

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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"

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Non-discriminatory Testing

• 3 purposes of evaluation
• Describe the childs functioning, noting
  strengths weaknesses
• Identify and define any outstanding needs the
  child exhibits
• Determine eligibility and appropriate education

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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
  parents 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

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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

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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)

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Non-discriminatory Testing

• The Evaluation (continued)
• The test results should accurately reflect the
  childs 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)

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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

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Non-discriminatory Testing

• The Evaluation (continued)
• Failure to comply with any of these is a
  violation of IDEIA Section 504

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Individualized Appropriate Education

• the right to a meaningful educational experience
• What is an appropriate education?????

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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

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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.

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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.

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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 benefitregardless of how
  minimal the benefit

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Individualized Appropriate Education

• BOE of the Hendrick Hudson CSD v. Rowley (1982)
• Adequacy includes
• services/instruction at public expense
• meeting the states educational standards
• approximate grade levels in regular educational
  system
• agreement with childs IEP
• placement in the LRE
• The court also stated that it does not "second
  guess" an IEP, butstudents with disabilities
  must be placed in an educational program that
  will have some educational benefit

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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

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Individualized Appropriate Education

• Applications of Appropriateness
• determining appropriateness must be made on an
  individual basis
• other considerations of appropriateness
• LRE
• services available
• cot  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

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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

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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)

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Least Restrictive Environment

• LRE is an individualized decisiona 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

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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

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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

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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

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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

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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

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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

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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...

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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

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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

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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

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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 testingdispense with unneeded
  testing _at_ 3 year evaluation
• IEP must explain the extent to which a child is
  not participating with nondisabled students in
  the regular classroom

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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

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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 childs continued presence is
  "substantially likely" to result in injury to the
  child or others
• "manifestation determination" to determine
  whether a childs behavior that violates school
  rules is related to the disability
• if behavior is a manifestationcannot be
  disciplined
• must determine this before suspension/ expulsion

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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

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Amendments to P.L. 94-142

• IDEIA 2004
• To be covered throughout this course!!!

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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 Granites 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. Shannons nurse
  typically suctions Shannons tracheostomy tube
  five times during a three-hour school day,
  including the bus ride. In spite of suctioning,
  Shannons 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, Shannons 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 Shannons 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.