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Each year, the National Dissemination Center for Children with Disabilities (NICHCY) receives thousands of requests from families and professionals for information about special education and related services for children and youth with disabilities. This News Digest has been developed to answer many of the questions and concerns that families and professionals have when they contact NICHCY. This document looks specifically at the mandates and requirements of the Individuals with Disabilities Education Act Amendments of 1997 (IDEA), the federal law that supports special education and related services programming for children and youth with disabilities.
While this issue often uses the word "you" to speak directly to parents and families, we hope that its detailed information about special education law and services is also useful to professionals who work with children and youth with disabilities and their families.
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)]. The IDEA has its roots in Public Law 94-142 (the Education of All Handicapped Children Act), which was originally enacted in 1975 to establish grants to States for the education of children with disabilities. This law has been amended several times. Under Part B of the law, 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 FAPE 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 became 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 was first amended in 1992 by P.L. 102-119. The newest amendments to this law are the Individuals with Disabilities Education Act Amendments of 1997 (P.L. 105-17). These amendments restructured IDEA into four parts: Part A addresses General Provisions; Part B covers the Assistance for Education of All Children with Disabilities; Part C covers Infants and Toddlers with Disabilities; and Part D addresses National Activities to Improve the Education of Children with Disabilities.
The IDEA is an important federal law, because it requires that FAPE, which includes special education and related services, be made available to children and youth with disabilities in mandated age ranges. This News Digest provides a general overview of the IDEA and its regulations as they relate to school-aged children. The News Digest 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 C program (formerly known as the Part H program) and to preschool children with disabilities is presented in a separate NICHCY document entitled A Parent's Guide: Accessing Programs for Infants, Toddlers, and Preschoolers With Disabilities.
The information provided in this News Digest is drawn specifically from the IDEA Amendments of 1997, as passed by Congress in 1997 and codified into law under 20 United States Code (USC), Chapter 33. Final regulations for the IDEA Amendments of 1997 were published in the Federal Register on Friday, March 12, 1999. These final regulations are currently guiding school systems in how they design and implement their special education and related services programs.
Because States base their programs upon the law and its final Federal regulations, it is helpful for you to read and become familiar with the law itself. To obtain a copy of the law (called the statute) and/or the final Federal regulations, contact: Superintendent of Documents, U.S. Government Printing Office, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may be telephoned to: (202) 512-1800. For a copy of the statute, state that you are requesting a copy of Public Law 105-17, the Individuals with Disabilities Education Act Amendments of 1997. To obtain a copy of the final Federal regulations, request the latest copy of the IDEA's regulations: Code of Federal Regulations: Title 34; Education; Part 300-399. There will be a minimal charge for both of these documents.
Both of these documents are also available on the Internet at the Web site of the Office of Special Education Programs (OSEP) at the U.S. Department of Education. OSEP's Web address is:
www.ed.gov/offices/OSERS/IDEA/index.html
Another useful Web site for obtaining these materials is the OSEP-funded IDEA Partnership Projects at:
www.ideapractices.org/law/index.php
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.
In this News Digest, you will read a great deal about the responsibilities and rights of the agency that is responsible for providing education to your child with a disability. The term that is used in IDEA's regulations is generally public agency.
The "public agency" may vary from location to location and from child to child. In some instances, it is the State Education Agency (SEA); in others, it is the local education agency (LEA), a public charter school, or some other entity.
Although public agency is not a term most people are overly familiar with, we have chosen to use this term to refer to the agency in your area that is responsible for providing education to children with disabilities. In most cases, this agency will be your local school district.
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).
The major purposes of the IDEA are:
Under the law, a free appropriate public education (FAPE) means special education and related services that:
The requirements for an IEP are discussed in greater detail in Part IV of this document.
The regulations for IDEA define a "child with a disability" as including a child (a) who has been evaluated according to IDEA's evaluation requirements (specified at Sections 300.530 - 300.536 and discussed in Part III of this document); (b) who has been determined, through this evaluation, to have one or more of the disabilities listed below; and (c) who, because of the disability, needs special education and related services. The disabilities listed by IDEA are:
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 through 9, a "child with a disability" may include, at the discretion of the State and the local educational agency (LEA) and subject to certain conditions (enumerated at Section 300.313), a child who is 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:
From birth through age 2, children may be eligible for services through The Infants and Toddlers with Disabilities Program (Part C) of the IDEA. This News Digest does not discuss the Part C program. For information about how to access services for infants and toddlers, read NICHCY's A Parent's Guide: Accessing Programs for Infants, Toddlers, and Preschoolers with Disabilities or contact us and request a copy..
Special education is defined as instruction that is specially designed, at no cost to you as parents, to meet your child's unique needs. Specially designed instruction means adapting the content, methodology, or delivery of instruction:
Special education can include instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. It can include instruction in physical education as well. Speech-language pathology services or any other related service can be considered special education rather than a related service under State standards if the instruction is specially designed, at no cost to the parents, to meet the unique needs of a child with a disability. Travel training and vocational education also can be considered special education if these standards are met. (Section 300.26)
As listed above, special education instruction can be provided in a number of settings, such as: in the classroom, in the home, in hospitals and institutions, and in other settings (Section 300.26). Public agencies must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities [Section 300.551(a)]. This continuum must include the placements just mentioned (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions) and make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. Unless a child's 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 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 [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 if 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)].
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:
The list of related services identified in the IDEA's 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 regulations. NICHCY's News Digest called Related Services can also provide information and guidance about related services.
Before a child with a disability can receive special education and related services for the first time, a full and individual initial evaluation of the child, also known as a preplacement evaluation, must be conducted (Section 300.531). Informed parent consent must be obtained before this evaluation may be conducted [Section 300.505(a)(1)(i)].
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 your child's teacher, the principal of your child's school, or the Director of Special Education in your school district. If the public agency suspects that your child has a disability, your child must be evaluated at no cost to you.
If the public agency refuses to evaluate your child because it does not believe that your child has a disability, you must be given a written notice of the refusal and a full explanation of the reasons for the refusal [Sections 300.503(a)(1)(ii) and 300.503(b)(1) and (2)]. This notice must also include a statement telling you that you have protection under IDEA's regulations. In addition, at the time of initial referral for evaluation, you must be given a procedural safeguards notice that includes, among other elements, the State complaint procedures and a full explanation of all the procedural safeguards available under IDEA, including your right to challenge the public agency's refusal through a due process hearing (Section 300.507) and your right to request mediation (Section 300.506).
(2) The public agency may ask 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 public agency may recommend that a child receive further screening or assessment to determine if he or she has a disability and needs special education and related services. If the public agency thinks that your child may have a disability and needs special education and related services, it must evaluate your child at no cost to you. You, as a parent, must give informed written permission before the public agency can evaluate your child [Section 300.505(a)(1)(i)].
It is important for you to know that the law requires that the public agency notify you, the parents, in writing before it evaluates your child. All written communication from the public agency must be in a form the public can understand (and provided in your native language if you do not read English, or in the mode of communication you normally use, such as Braille or large print), unless it is clearly not feasible to do so. If your native language or other mode of communication is not a written language, the public agency must take steps to ensure:
The notice must also:
As was stated above, you, as parents, must give your informed written consent before the public agency may conduct an initial evaluation of your child. If you refuse consent for an initial evaluation, the public agency may continue to pursue conducting the evaluation by using the law's due process procedures or its mediation procedures (discussed in Part V of this News Digest), unless doing so would be inconsistent with State law relating to parental consent [Section 300.505(b)].
The regulations are very specific about how public agencies are to conduct evaluations of children and youth thought to have a disability. Your child's evaluation must be conducted by a group that includes:
In this latter category--"other qualified professionals"--a wide range of individuals may be involved, depending upon the suspected disability of your child. For example, any of the following may be part of the evaluation team: school psychologist, speech-language pathologist, remedial reading teacher, occupational or physical therapist, adaptive physical education therapist, educational diagnosticians, or others.
The law requires that your child be assessed in all areas related to his or her suspected disability. This includes, where appropriate, evaluating your child's:
To accomplish this, a variety of assessment tools and strategies must be used to gather relevant functional and developmental information about your child. This includes information provided by you, as well as information related to enabling your child to be involved in and progress in the general curriculum (that is, the curriculum used with nondisabled children). The ultimate purpose of the initial evaluation is to gather information that may assist in determining:
To this end, then, the evaluation must be sufficiently comprehensive to identify all of your son or daughter's special education and related services needs, whether or not those needs are commonly linked to the disability category in which he or she is thought to have a disability [Section 300.532(h)].
The evaluation process, as described within IDEA, requires that the group of individuals listed above begin the evaluation by reviewing existing evaluation data on your child. This includes evaluations and information provided by you; current classroom-based assessments and observations; and observations by teachers and related services providers. (Your permission is not needed for this review.)
Based on that review and on input from you as the child's parents, the group then identifies what additional data (if any) are needed to determine:
For an initial evaluation, it is likely that additional data will be needed to answer these questions, particularly given the law's requirement to evaluate your child in all areas related to the suspected disability. The public agency must administer tests and other evaluation materials as may be needed to collect the needed data. Before the agency may collect this information about your child, it will need to ask you for your informed written permission [Section 300.505(a)(1)]. As was stated above, if you refuse consent, the public agency may continue to pursue conducting the evaluation by using the law's due process procedures or its mediation procedures (discussed in Part V of this News Digest), unless doing so would be inconsistent with State law relating to parental consent [Section 300.505(b)]. If you give your informed written consent to the evaluation, then the public agency will go ahead and collect the needed information about your child.
In addition to the requirements stated above, the IDEA includes a number of general evaluation provisions that are intended to ensure that evaluations of children provide information that is comprehensive and accurate about their strengths and needs. With respect to your child (and all children), this includes the following:
Thus, the evaluation process begins when a group of individuals, including you as parents, reviews existing evaluation data on your child and decides what (if any) additional data are needed to decide if your child has a disability and to help plan instruction for your child. If more information is needed about your child to make these decisions, the public agency will ask your permission to collect the information. After you give your informed written consent, the public agency will collect whatever additional information is needed, following the guidelines listed above for sound evaluation and using a variety of evaluation methods and strategies, including tests, observations, and classroom-based assessments. An evaluation report will then be prepared. Such a report generally would summarize the results of your child's evaluation.
Upon completing the administration of tests and other evaluation materials (if they are determined to be needed), a group of qualified professionals and you, the parents, must determine whether or not your child is a "child with a disability," as defined by IDEA (see Attachment A in this document) and local policy, and whether your child needs (and, thus, is eligible for) special education and related services (Section 300.534). This determination will be made based on the results of your child's evaluation and information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, and your child's physical condition, social or cultural background, and adaptive behavior [Section 300.535(a)(1)].
Previously, parents were not expressly included in the group that determined their child's eligibility and, in fact, were often excluded. Now, under the IDEA Amendments of 1997, parents are to be part of the group that determines their child's eligibility [Section 300.534(a)(1)]. The public agency must also provide a copy of the evaluation report to the parent, as well as the documentation of the determination of the child's eligibility [Section 300.534(a)(2)].
Some school systems will hold a meeting where they consider only the eligibility of the child for special education and related services. At this meeting, 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 did, your child's results on those tests or other evaluation procedures, and what your child's scores mean when compared to other children of the same age and grade.
It is important to know that the group may not determine that a child is eligible if the determinant factor for making that judgment is the child's lack of instruction in reading or math or the child's limited English proficiency. The child must otherwise meet the law's definition of a "child with a disability"--meaning that he or she has one of the disabilities listed in the law (see Attachment A) and, because of that disability, needs special education and related services. [Section 300.534(b)]
The regulations also specify criteria for determining the existence of a specific learning disability, one of the 13 disability categories listed in the law. Section 300.541 states that a team may determine that a child has a specific learning disability if two conditions are met. The first is that the child does not achieve commensurate with his or her age and ability levels in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation, or mathematic reasoning, even if the child is provided with learning experiences appropriate for his or her age and ability level. The second condition is that the team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of those areas. However, the team may not identify a child as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of (a) a visual, hearing, or motor impairment; (b) mental retardation; (c) emotional disturbance; or (d) environmental, cultural, or economic disadvantage. (Section 300.541)
If the evaluation results indicate that your child meets the definition of one or more of the disabilities listed under IDEA and needs special education and related services, the results will form the basis for developing your child's IEP. The IEP is discussed in detail in the next section of this News Digest.
If you, as parents of a child with a disability, disagree with the results of your child's evaluation as obtained by the public agency, you have the right to obtain what is known as an Independent Educational Evaluation, or IEE (Section 300.502). An IEE means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of your child. If you ask for an IEE, the public agency must provide you with, among other things, information about where an IEE may be obtained.
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 public agency's evaluation, you may request an IEE at public expense. "At public expense" means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you as parents [Section 300.502(a)(3)(ii)]. The public agency may grant your request and pay for the IEE, or it may initiate a hearing to show that its own evaluation was appropriate. The public agency may ask why you object to the public evaluation. However, the agency may not require you to explain, and it may not unreasonably delay either providing the IEE at public expense or initiating a due process hearing to defend the public evaluation. [Section 300.502(b)(4)]
If the public agency initiates a hearing and the final decision of the hearing officer is that the agency's evaluation was appropriate, then you still have the right to an IEE but not at public expense [Section 300.502(b)(3)]. As part of a due process hearing, a hearing officer may also request an IEE; if so, that IEE must be at public expense. Whenever an IEE is publicly funded, that IEE must meet the same criteria that the public agency uses when it initiates an evaluation. The public agency must tell you what these criteria are--such as location of the evaluation and the qualifications of the examiner--and they must be the same criteria the public agency uses when it initiates an evaluation, to the extent they are consistent with your right to an IEE. However, the public agency may not impose other conditions or timelines related to your obtaining an IEE at public expense. [Section 300.502(e)]
Of course, you have the right 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.) The results of this evaluation must be considered by the public agency, if it meets agency criteria, in any decision made with respect to providing your child with FAPE. The results may also be presented as evidence at a hearing regarding your child. [Section 300.502(c)] For more information about hearings, see Part V of this News Digest.
In most cases, yes. The first time your child is evaluated is called an initial evaluation (Section 300.531). Evaluations must also be conducted at least every three years (generally called a triennial evaluation) after your child has been placed in special education [Section 300.536(b)]. Reevaluations can also occur more frequently if conditions warrant, or if you or your child's teacher request a reevaluation [Section 300.536(b)]. Informed parental consent is also necessary for reevaluations [Section 300.505(a)(1)(i)].
As with initial evaluations, reevaluations begin with the review of existing evaluation data, including evaluations and information provided by you, the child's parents. Your consent is not required for the review of existing data on your child. On the basis of that review, the group, including you and other qualified professionals (as appropriate), must identify what additional data, if any, are needed to determine whether your child continues to be a "child with a disability" and continues to need special education and related services. If the group determines that additional data are needed, then the public agency must administer tests and other evaluation materials as needed to produce the data. Prior to collecting this additional information, the agency must obtain your informed written consent.
If the group determines that no additional data are needed to determine whether your child continues to be a "child with a disability," the public agency must notify you:
The public agency is not required to conduct the assessment unless requested to do so by you, the child's parents. [Section 300.533(d)]
A final note with respect to reevaluations: Before determining that your child is no longer a "child with a disability" and, thus, no longer eligible for special education services under IDEA, the public agency must evaluate your child in accordance with all of the provisions described above. This evaluation, however, is not required before terminating your child's eligibility due to graduation with a regular high school diploma or due to exceeding the age eligibility for FAPE under State law. [Section 300.534(c)]
An IEP is a written statement for a child with a disability that is developed, reviewed, and revised in a meeting in accordance with certain requirements of law and regulations. These requirements and the entire IEP process are discussed in this section.
Two general purposes of the IEP are (1) to establish measurable annual goals, including benchmarks or short-term objectives, for the child; and (2) to state the special education and related services and supplementary aids and services that the public agency will provide to, or on behalf of, the child. The regulations state that the State Education Agency (SEA) must ensure that each public agency develops and implements an IEP for each child with a disability served by that agency (Section 300.341).
Under the IDEA, your child's IEP must include:
These last three statements relate to the transition needs of students as they approach the age where they will leave high school and move on to the adult world of employment, further education, and independent living. Beginning in 1990, the IDEA included transition planning as part of the IEP in order to address the need of students with disabilities to prepare for life after high school. Because transition is such a crucial area for youth with disabilities, more will be said about it under Question #17 below.
In addition to including the above statements in the IEP, the IEP team must also consider "special factors" with respect to the child. New to the IEP process with the passage of the IDEA Amendments of 1997, these factors include the following:
If, in considering these special factors with respect to your child, the IEP team determines that he or she needs a particular device or service (including an intervention, accommodation, or other program modification) in order to receive FAPE, then the IEP team must include a statement to that effect in your child's IEP [Section 300.346(c)].
Appendix A of the regulations for IDEA contains additional guidance on the IEP process. Using a question and answer format, Appendix A can assist the team developing your child's IEP. NICHCY makes Appendix A available in its entirety as its publication entitled Individualized Education Programs.
The IEP is developed by a team whose members meet, review the assessment information available about your child, and design an educational program to address your child's educational needs that result from his or her disability. This meeting, known by a variety of names such as an ARD meeting or an IEP meeting, must be held within 30 calendar days after it is determined, through a full and individual evaluation (described in Part III of this document), that your child has one of the disabilities listed in IDEA and needs special education and related services [Section 300.343(b)]. Your child's IEP must be reviewed at least annually thereafter to determine whether the annual goals are being achieved and must be revised as appropriate [Section 300.343(c)].
According to the regulations (Section 300.344), the IEP team for each child with a disability includes the following individuals:
Depending on the purpose of the meeting, other participants may be involved. For example, if one of the purposes of the meeting is the consideration of transition services for the student, then the public agency must also invite the student and a representative of any other agency that is likely to be responsible for providing or paying for the transition services [Section 300.344(b)]. More is said about transition under Question #17.
Yes. The law is very clear that you, as parents, have the right to participate in the meeting where your child's IEP is developed. This means that:
IDEA's regulations state that the public agency may hold the IEP meeting without you if it is unable to convince you that you as parents should attend. However, the agency must have a record of its attempts to arrange a mutually agreed on 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 correspondence sent to you and any responses received, and detailed records of visits made to your home or work and the results of those visits. [Section 300.345(d)] The regulations also state that if neither of you as parents can attend the IEP meeting, the public agency must use other methods to ensure your participation, including individual or conference telephone calls [Section 300.345(c)].
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 public agency. It enables the parents and other members of the IEP team to decide what the child's educational needs are, what goals and objectives or benchmarks are appropriate, what services will be provided, and what results can be anticipated, and to specify these in the IEP.
Some public agencies conduct the IEP meeting separately from the meeting where the child's eligibility for services is determined. Other agencies combine the eligibility meeting and the IEP meeting, moving directly into developing the IEP once a child has been determined eligible for services. However, as Appendix A to the regulations points out (in Question #19), should the meeting move directly from eligibility to developing the IEP for the child and then to making a placement decision, the public agency must ensure that:
(a) it has met the law's requirements regarding eligibility decisions (as specified at Sections 300.534-300.535);
(b) it has met all of the Part B requirements regarding meetings to develop IEPs, including providing appropriate notification to the parents and ensuring that all the required team members participate in the development of the IEP; and
(c) the placement decision is made by the required individuals, including the parent [as specified at Sections 300.552 and 300.501(c)].
Whichever approach your school system uses, once your child's eligibility for services has been determined, the focus of discussion should be on developing his or her IEP. You and the other members of the team will discuss the many issues associated with developing the specific IEP statements described above, including:
You, as the parent, may wish to provide information on your child's educational needs (and, when appropriate, transition needs) and offer suggestions for the services appropriate for meeting those needs. At any point during the IEP meeting, don't hesitate to ask questions until you are sure that you understand what is being said.
Following the team's discussion, decisions will be made about the educational program and related services that meet your child's needs. These decisions are then specified in the IEP. The public agency must give you a copy of the IEP at no cost to you [(Section 300.345(f)].
It is important to understand that the IEP sets out the individualized instruction and related services to be provided to your child, but it is not a contract. While Part B of IDEA does not require that the public agency, teachers, and others be held liable if a child does not achieve the growth projected in the annual goals and benchmarks or objectives, the public agency is responsible for providing the special education and related services written into the IEP (Section 300.350). In order to check on your child's progress, you will find it helpful to have a copy of your child's IEP.
Your child's special education placement must be based on his or her IEP. Placement issues will be discussed further below (see Question #19), for they are a very important part of the special education process. However, first we will look at two IEP issues in more detail: transition planning and assistive technology devices and services.
Beginning when your child is age 14 (or younger, if appropriate) and updated annually thereafter, your child's IEP team must include a statement in the IEP with respect to your son or daughter's transition service needs under the applicable components of the IEP that focuses on his or her courses of study. This might include, for example, your child's participation in advanced-placement courses or in a vocational education program. [Section 300.347(b)(1)] According to the Committee on Labor and Human Resources (1997), which submitted its Report [to accompany S. 717] to explain the IDEA Amendments of 1997, the purpose of this requirement is "to focus attention on how the child's educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school" (p. 22).
Beginning when your son or daughter is 16 (or younger, if appropriate), the IEP team must include a statement in the IEP of needed transition services for your child. This includes, if appropriate, a statement of the interagency responsibilities or any needed linkages. [Section 300.347(b)(2)]
The term "transition services" means a coordinated set of activities for a student with a disability that is designed within an outcome-oriented process that promotes movement from school to post-school activities. These activities can include postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. With respect to your child, this coordinated set of activities:
Transition services can be provided as special education if they are specially designed instruction or as related services, if they are required for your child to benefit from special education [Section 300.29(b)].
As part of developing your child's IEP, the IEP team will consider your child's need for assistive technology devices and services. 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 a child with a disability (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 a child with a disability in terms of mobility, communication, employment, and learning (Flippo, Inge, & Barcus, 1995). 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 a child 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 (Section 300.6). The term also includes such services as:
Now that you, as parents, and the other members of the IEP team have looked closely at and discussed your child's educational needs, decided what special education and related services are appropriate for your child, and specified the other information required in the IEP, it will be time to consider your child's placement--where your child will receive his or her special education and related services. Under Section 300.552(a) of IDEA, the placement decision is made by a group of persons--including the parents--and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. The placement decision must be made in conformity with the law's least restrictive environment (LRE) provisions (discussed in Part II of this News Digest and found at Sections 300.550-300.354), which require that:
(a) to the maximum extent appropriate, children with disabilities are educated with children who are nondisabled; and
(b) special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if 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.
As was stated in Part II of this document, the law requires that the public agency ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. This continuum must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions, and make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. (Section 300.551)
These, then, are the options that the group deciding your child's placement will consider. The involvement of parents in placement decisions is new to the law with IDEA '97. The implementing regulations for IDEA '97 state that "Each public agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child" [Section 300.501(c)(1)]. To ensure your involvement in this critical decision, the public agency must use procedures consistent with those described under Question #15 for involving parents in IEP meetings (e.g., being notified about the meeting early enough to have the opportunity to attend, efforts to arrange a mutually agreed-upon time and location for the meeting) [Section 300.501(c)(2)]. The agency must also make reasonable efforts to ensure that you understand, and are able to participate in, any group discussions relating to the educational placement of your child. This includes arranging for an interpreter for you if you are deaf or if your native language is other than English. [Section 300.501(c)(5)]
If you cannot participate in the meeting where a placement decision will be made for your child, the public agency must use other methods to ensure your participation, including individual or conference telephone calls, or video conferencing [Section 300.501(c)(3)]. The law does state that a placement decision may be made by a group without your involvement as parents, if the public agency is unable to obtain your participation in the decision. However, in this case, as with IEP development, the public agency must have a record of its attempt to ensure your involvement, including detailed records of telephone calls made or attempted and the results of those calls; copies of correspondence sent to you and any responses received; and detailed records of visits made to your home or work and the results of those visits. [Section 300.501(c)(4)]
Your child's placement must be determined at least annually, must be based on his or her IEP, and must be as close as possible to his or her home [Section 300.552(b)]. In fact, unless your child's IEP requires some other arrangement, your son or daughter must be educated in the school he or she would attend if nondisabled [Section 300.552(c)]. When selecting the least restrictive environment, consideration must be given to any potential harmful effect on your child or on the quality of services that he or she needs [Section 300.552(d)]. And as was stated before, your child may not be removed from education in age-appropriate regular classrooms solely because he or she needs modifications made in the general curriculum [Section 300.552(e)].
The law clearly makes provisions for the growth and changing needs of children. At least once a year, whether you request it or not, a meeting must be scheduled with you to review your child's IEP to determine whether the annual goals for your child are being achieved [Section 300.343(c)(1)]. Other aspects of your child's education will need to be considered as well, including:
Based upon this review, the IEP would be revised as appropriate to address the following:
While the law requires that this review and revision of the IEP take place at least once a year, you as parents may request a review or revision of your child's IEP at any time. If you feel that your child is not progressing toward the annual goals as he or she should, or you feel that he or she has achieved the goals and that new ones need to be written, you may contact the school and request that the IEP team review and revise your child's IEP as appropriate. Because of the law's new requirement that parents be regularly informed of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year [Section 300.347(a)(7)(ii)], parents will have the ability to gauge their child's progress more closely than ever before.
It is in the best interests of everyone--the parents, the public agency, and the child with a disability--that the school and the parents maintain a good working relationship. The following are some suggestions that parents can use to develop and maintain a positive working relationship with the professionals who work with their child.
The regulations implementing IDEA include an entire section (Subpart E) 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 public agencies a mechanism for resolving disputes. Some of IDEA's procedural safeguards are listed between the dotted lines below; many have been discussed in earlier parts of this News Digest. We will look at some of these areas in this section, including: the confidentiality of information; access to education records and 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 public agency regarding their child. This latter area will involve discussing a series of options, including mediation, due process, and filing a complaint with the State agency. New requirements for placing the child in a private school at public expense will also be discussed, although technically this is not a procedural safeguard. The disciplining of students with disabilities, a new procedural safeguard within the law, will be discussed briefly as well.
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 identifier number (such as the child's social security number or student number); or (d) a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty [Section 300.500 (b)(3)]. With a number of exceptions, you must give your consent before any personally identifiable information can be disclosed by the school system (Section 300.571). These exceptions are specified by your State or other participating agency's policy in keeping with Section 99.31 of the regulations for 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 300.577--contain several references to FERPA.) You have the right to know the policies and procedures that participating agencies in your State must follow regarding the gathering, storage, disclosure to third parties, retention, 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 as parents the right to inspect and review all education records relating to your child that the public agency collects, maintains, or uses regarding the identification, evaluation, and educational placement of your child and the provision of FAPE to your child (Sections 300.501 and 300.562). Should you ask to review your child's records, the public agency must respond to the request without unnecessary delay and before any meeting regarding an IEP or a due process hearing involving your child, and in no case later than 45 days after the request has been made [Section 300.562(a)]. You also have the right to receive a response to your reasonable requests for explanations and interpretations of the records. You may ask the agency to provide you with a copy of your child's records, and the school may charge you a reasonable fee for making the copies, as long as this fee does not effectively prevent you from exercising your right to inspect and review the records. Schools may not charge you for searching for or retrieving the records [Section 300.566 (b)]. You also have the right to have a representative inspect and review the records. 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 collected, maintained, or used under Part B of IDEA (with the exception of parents and authorized employees of the agency). 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 or other rights, you may request that the agency that maintains this information amend it [Section 300.567 (a)]. The agency must then decide, within a reasonable period of time, whether to amend the information in accordance with your request [Section 300.567(b)]. If the agency decides to refuse to amend the information as requested, 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 99.22 of FERPA). You may also, at your own expense, be assisted or represented by one or more individuals of your choice, including an attorney. 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 99.22 of FERPA). The decision must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.
Should the result of the hearing be in your favor, the district or other participating agency must amend the information in your child's records accordingly and inform you in writing that it has done so [Section 300.569(a)]. If, however, the result of the hearing is that the information about your child is not inaccurate, misleading, or otherwise in violation of his or her privacy or other rights, then the agency must inform you that, as parents, you have the right to place in your child's records a statement commenting on the information or setting forth any reasons you have for disagreeing with the decision [Section 300.569(b)]. The district must then place your statement in the records and keep it there as long as the record or contested portion is maintained by the agency. If the record of your child (or the contested portion) is disclosed by the agency to any party, the explanation must also be disclosed to that party. [Section 300.569(c)]
IDEA '97 adds an additional provision regarding educational records and the inclusion of disciplinary information in those records. A State may now require that a public agency include in the records of a child with a disability a statement of any current or previous disciplinary action taken against the child. This statement would be transmitted to the same extent that the disciplinary information is included in, and transmitted with, the student records of nondisabled children. [Section 300.576(a)] This statement may include:
If the State adopts such a policy and the child transfers from one school to another, the transmission of any of the child's records must include both the child's current IEP and any statement of current or previous disciplinary action taken against the child [Section 300.576(c)].
When parents refuse consent for an initial evaluation or reevaluation of their child or the initial provision of special education and related services, the agency may continue to pursue the evaluation or the provision of services through the mediation or due process procedures specified within the law, except to the extent that doing so would be inconsistent with State law relating to parental consent [Section 300.505(b)]. Some States have policies that would prohibit the agency from overriding a parental refusal to consent. If so, the agency must follow the requirements of State law and, thus, may have no recourse but to not evaluate the child under IDEA or to not provide services to the child.
If no such State law applies with respect to parental consent, the public agency may follow Federal law and utilize either the due process or mediation procedures of IDEA to secure the initial evaluation or the initial provision of special education and related services. In this case, the public agency must notify the parents of its intended actions (i.e., to pursue mediation or a due process hearing). Parents may chose to participate in the mediation process, which is voluntary, and they have rights with respect to due process hearings (both mediation and due process are discussed further below).
The only exception to the above requirements for consent is a specific provision in the case of parents who fail to respond to a request for a reevaluation of their child. In this instance, informed parent consent does not need to be obtained if the agency can demonstrate that it has taken reasonable measures to obtain that consent and the child's parent has failed to respond [Section 300.505(c)]. (Note that this provision applies only in the case of reevaluation and only when parents fail to respond, as opposed to expressly refusing consent.) The regulations describe "reasonable measures" as being consistent with provisions at Section 300.345(d), which means that the public agency must have a record of its attempts to secure parents' consent to the reevaluation of their child, such as:
There are several different procedures that you might want to use when you are not in agreement with the decisions made by the public agency 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. You may also find it useful to involve an advocate in some of these approaches. An advocate can help you understand your rights and responsibilities fully, as well as those of the public agency, and can assist in discussions concerning whatever differences exist between you and the public agency. (To find out more about advocates in your area, you may wish to contact a local disability group or parent group. You may also contact NICHCY for the name and telephone number of the Parent Training and Information (PTI) center in your State.)
(1) Discussion or conference with school staff. Staff may include teachers, counselors, the principal, the director of special education, and even the superintendent. Talking openly and honestly with these involved professionals may be an effective means of addressing and resolving a disagreement.
(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) Mediation. IDEA '97 establishes mediation as a voluntary process that may be used in resolving disputes between public agencies and the parents of a child with a disability (Section 300.506). Mediation is a dispute settlement process in which a qualified and impartial third person (called a mediator) tries to negotiate a solution or compromise to the dispute. The mediator will listen to the parties and encourage them to make concessions or compromises. IDEA '97 requires that agreements reached in mediation be put in writing. More is said about mediation under Question #25.
(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 300.507). An impartial third party, called a hearing officer, will listen to the evidence that you and the public agency present and will issue a decision that contains the relevant facts and the legal basis for the decision. Due process hearings are discussed more fully under Question #26.
(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 IDEA. Complaints must be written and signed and must contain a statement that a public agency has violated a requirement of Part B of IDEA and the facts upon which the statement is based. More is said about these procedures under Question #27.
In addition to these methods of resolving disputes, many parents may also decide to remove their child from the public school and place him or her in a private school. If the public school has failed to make FAPE available to the child, the public school may be required to pay for the costs of the private school education. This issue is discussed under Question #28.
As was said above, mediation is a voluntary process that may be used to resolve disputes between school systems and the parents of a child with a disability. Under IDEA '97, States must now establish procedures to ensure that a mediation process is available, at a minimum, whenever a due process hearing is requested under Section 300.507 or under the discipline provisions of the law (Sections 300.520-300.528). The law requires that the mediation process meet certain, specific conditions, as follows:
Some parents may choose not to use mediation, and an LEA or a State agency may establish procedures to require the parents to meet with a disinterested party who would explain the benefits of the process and encourage parents to use the process. This disinterested party would be under contract with a Parent Training and Information (PTI) center or a community parent resource center in the State, or an appropriate alternative dispute resolution organization or agency. [Section 300.506(d)]
As a new addition to the law, mediation is seen as having great potential for resolving disputes between school systems and parents. As the Committee on Labor and Human Resources (1997) states in the report it sent to Congress to explain the IDEA '97: "The committee is aware that, in States where mediation is being used, litigation has been reduced, and parents and schools have resolved their differences amicably, making decisions with the child's best interests in mind" (pp. 26-27).
You, as parents, have the right to initiate a due process hearing on any matter related to your child's identification, evaluation, or educational placement, or any aspect related to the provision of FAPE to your child (Section 300.507). As mentioned above, 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 may not be an employee of the State agency or LEA involved in the education or care of your child, nor can this person have a personal or professional interest that would conflict with his or her objectivity in the hearing [Section 300.508(a)(1)-(2)]. It is important to note that just because the public agency pays this person to serve as a hearing officer, he or she is not considered to be an employee of the agency [Section 300.508(c)].
Under IDEA '97, when you as parents request a due process hearing, you (or your attorney) are also required to provide the public agency with notice (which is to remain confidential) that you are requesting such a hearing. The notice must include:
However, a public agency may not deny or delay your right to a due process hearing for failure to provide the notice described above [Section 300.507(c)(4)].
The due process hearing must be conducted by the SEA or the public agency directly responsible for your child's education, as specified by the State. When a due process hearing is initiated, the public agency must inform you of the availability of mediation as a means to resolve the dispute in question [Section 300.507(a) (2)]. The agency must also tell you of any free or low-cost legal (and other relevant) services available in the area, if you request such information [Section 300.507(a)(3)].
The right to request a due process hearing, however, is not reserved solely for parents. The public agency also has the right to initiate a mediation process or a due process hearing if parents refuse to give consent to the initial evaluation or reevaluation or the initial provision of special education and related services to their child, unless doing so would be inconsistent with State law regarding parental consent [Sections 300.506(a) and 300.507(a)].
Any party involved in the due process hearing--including you as parents--has the right to:
At least five business days prior to the hearing, each party must disclose to all other parties all evaluations of your child completed by that date and recommendations based on the offering party's evaluations (i.e., the party that has requested the due process hearing) that the party intends to use at the hearing. A hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. [Section 300.509(b)]
As parents, you have certain additional rights at a due process hearing, as follows:
At the hearing, the arguments and evidence of both you and the public agency are presented before the impartial hearing officer, who will make a decision on the matters at issue. The due process hearing must be completed and a copy of the decision mailed to you and the public agency within 45 days of your request for the hearing (Section 300.511); however, the hearing officer may grant a specific extension of time at the request of either party involved in the due process procedure. 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 must conduct an impartial review of the hearing, which involves examining the entire hearing record, ensuring that the procedures at the hearing were consistent with the requirements of due process, and seeking additional information, if necessary. If the reviewing official wishes to, he or she can afford both parties the opportunity for oral or written arguments, or both. The hearing officer must then make an independent decision and give a copy of the written or, at your option, electronic findings of fact and decisions to the parties. The SEA must ensure that this entire process--from the initial receipt of the request for an impartial review to the rendering of a final decision and the mailing of that decision to each party--is completed in not longer than 30 days. The reviewing officer may grant specific extensions of time beyond the 30 days at the request of either party. [Section 300.511(b)]
A parent or a public agency who disagrees with an initial hearing decision for which no SEA-level appeal is available, or any party aggrieved by the findings and decisions under the impartial review described above, has the right to bring a civil suit with respect to the complaint presented as part of the due process hearing (Section 300.512). It is important to realize, however, that civil actions can become quite costly and are certainly frustrating and time-consuming.
As was said above, 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 that a public agency has violated a requirement of Part B of IDEA or its implementing regulations and the facts upon which the statement is based. The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received, unless a longer period is reasonable because the violation is continuing or the complainant is requesting compensatory services for a violation that occurred not more than three years prior to the date the complaint was received (Section 300.662). 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 SEA is obligated to resolve such a complaint within 60 calendar days from the date of receipt, unless exceptional circumstances exist with respect to the complaint. The requirements governing IDEA-related complaints are found in Sections 300.660 through 300.662.
An individual wishing to file a complaint must do so by writing directly to his or her SEA or, in some States, the SEA provides for the filing of a complaint with a public agency and the right to have the SEA review the public agency's decision on the complaint. In either instance, 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 submit additional information, either orally or in writing, about the allegations in the complaint. The SEA must review all relevant information and make an independent determination as to whether the public agency has violated or is violating a requirement of the law. The SEA must then issue a written decision to the complainant that addresses each of the allegations in the complaint and contains the findings of fact and conclusions, as well as the reasons for the SEA's final decision.
To find out more about your State's complaint procedures, contact the Director of Special Education at your SEA and request information about these procedures. Additional clarification may also be available about how mediation, the due process procedure, and the State complaint process operate as distinct and separate remedies. You may want to seek advice from the PTI center or the Protection and Advocacy (P&A) Agency in your State.
Parents always may remove their child from the public school and enroll him or her in a private school at their own expense. The law does not require an LEA to pay for the cost of education, including special education and related services, of a child at a private school or facility if that agency made FAPE available to the child and the parents chose to place the child in the private school or facility [Section 300.403(a)]. However, disagreements between a parent and a public agency regarding the availability of a program appropriate for the child may arise. As was discussed above, parents and public agencies have many means of resolving such disputes, including meetings and conferences and more formal proceedings such as mediation or due process.
If, as parents, you decide to place your child in a private school and you want the public agency to pay for the cost of the private school education, certain provisions of law come into play. One relates to the question of whether or not the public agency made FAPE available to your child, which will be a deciding factor in whether or not the agency must reimburse you for the cost of the private school education. If you enroll your child in a private preschool, elementary, or secondary school without the consent of or referral by the agency, a court or hearing officer may require the agency to reimburse you for the cost of that enrollment if the court or hearing officer finds (a) that the public agency had not made FAPE available to your child in a timely manner prior to the private school enrollment, and (b) that the private placement is appropriate. Another important provision is that the cost of this reimbursement may be reduced or denied for a number of reasons, including if:
The cost of reimbursement may also be reduced or denied:
There are exceptions to these provisions, of course. The cost of reimbursement may not be reduced or denied for failure to provide the notice above if:
Thus, you may be able to secure reimbursement for the cost of your child's private school enrollment, given the above conditions (i.e., a court or hearing officer finds that the public agency did not make FAPE available to your child and that the private school placement is appropriate; you as parents notified the IEP team or the public agency of your intentions to remove your son or daughter from the public school and place him or her in a private school at public expense). In any event, parents always have the option of placing the child in a private school and paying for this placement themselves.
IDEA '97 has added explicit new provisions regarding the disciplining of students with disabilities (Sections 300.520-300.529). These provisions address students with disabilities who:
The provisions found at Sections 300.520-300.529 should be read in their entirety by individuals concerned with how children with disabilities may be disciplined in educational settings. The new provisions are intended to protect the rights of children with disabilities and their parents, while at the same time address the concerns of school administrators and teachers regarding school safety and order. They are also intended to help schools respond appropriately to a child's behavior and promote the use of appropriate behavioral interventions to prevent troubling behavior from recurring.
Due to the complexity of the new discipline provisions, however, we will not discuss them further in this News Digest. If you, as parents, are concerned about your child's behavior at school, we urge you to work with the IEP team to address his or her need for positive behavioral interventions. You may also need to learn more about the law's new disciplinary requirements and how school systems are working to address the challenging behaviors of students with and without disabilities. To do so, please contact NICHCY directly at 1-800-695-0285 or e-mail us (nichcy@aed.org). We would be pleased to provide you with information about the law and about positive behavioral supports.
As was mentioned at the beginning of this News Digest, two of the best resources parents 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.
Contact NICHCY:
Committee on Labor and Human Resources. (1997). Report [to accompany S. 717]. Washington, DC: GPO.
Family Educational Rights and Privacy Act (P.L. 93-380), Code of Federal Regulations, Title 34, Part 99, 1988.
Flippo, K.F., Inge, K.J., & Barcus, J.M. (1995). Assistive technology: A resource for school, work, and community. Baltimore, MD: Paul H. Brookes.
Individuals with Disabilities Education Act Amendments of 1997 (P.L. 105-17), 20 U.S.C. Chapter 33, Sections 1400-1485, 1997.
U.S. Department of Education. (1999, March 12). Assistance to states for the education of children with disabilities and the early intervention program for infants and toddlers with disabilities; Final regulations. Federal Register, 64(48), 12406-12671.
The IDEA provides a definition of a child with a disability," which is presented in its entirety below. The law also lists 13 separate categories of disability under which children may be eligible for special education and related services. These definitions are also presented verbatim, as found in Section 300.7(c)(1)-(13).
"(a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with Sections 300.530-300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.
"(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under Sections 300.530-300.536, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part.
"(ii) If, consistent with Section 300.26(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.
"(b) Children aged 3 through 9 experiencing developmental delays. The term child with a disability for children aged 3 through 9 may, at the discretion of the State and LEA and in accordance with Section 300.313, include a child--
"(1) Who is 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: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and
"(2) Who, by reason thereof, needs special education and related services.
"(c) Definitions of disability terms. The terms used in this definition are defined as follows:
"(1)(i) 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 an emotional disturbance, as defined in paragraph (b)(4) of this section.
"(ii) A child who manifests the characteristics of "autism" after age 3 could be diagnosed as having "autism" if the criteria in paragraph (c)(1)(i) of this section are satisfied.
"(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
"(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance.
"(4) 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.
"(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 an emotional disturbance.
"(5) 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.
"(6) 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.
"(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.
"(8) 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, absence 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).
"(9) Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that--
"(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
"(ii) Adversely affects a child's educational performance.
"(10) Specific learning disability is defined as follows:
"(i) General. The term 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, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
"(ii) Disorders not included. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
"(11) 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 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 to brain injuries induced by birth trauma.
"(13) 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."
(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))
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with us!Project Director: Suzanne RipleyNICHCY thanks our Project Officer, Dr. Peggy Cvach, at the Office of Special Education Programs (OSEP), U.S. Department of Education, for her very thorough review and many helpful suggestions. We would also like to thank the other individuals at OSEP who were involved in the painstaking review of this document. |
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| This document was reviewed by the U.S. Office of Special Education Programs for consistency with the Individuals with Disabilities Education Act Amendments of 1997, Public Law 105-17, and the final implementing regulations published March 12, 1999.
Publication of this document is made possible through a Cooperative Agreement between the Academy for Educational Development and the Office of Special Education Programs of the U.S. Department of Education. The contents of this document do not necessarily reflect the views or policies of the Department of Education, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government. |
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