Information Avenue Archives

The IDEA - An Overview
By Dina Kaplan, ESQ.

Why is transition so scary? Why do we parents of children with special needs dread every transition. For example, the transition from an early intervention program to a preschool program means once again going through major adjustments. Your child must become adjusted to a new place, school without mommy or daddy; new people - new teacher, new aides, new occupational therapist, speech therapist and all of the other people who will be working with your child. For us parents, it means assessments, IEPs, goals and objectives, and lots of laws and procedures that are new to us.

Lucky for me, I am not only the parent of a child with special needs, I am also an attorney with eighteen years of experience. You would think that all of the new procedures and laws would be easy for me - right? WRONG! So I did what I always do: I talked to every parent of a child with special needs that I know and got all kinds of information. Then, I went to the law library and pulled out The Individuals with Disabilities Education Act (IDEA) and started reading--WOW--it was overwhelming.

Since it is important that parents have a working knowledge of the laws and regulations that govern our children’s rights in education, this will be the first in a series of articles that will explain the basics. First, a little history: the IDEA was originally enacted in 1975. The text of the IDEA can be found beginning at 20 United States Code (U.S.C.) Section 1400 and following (for all you law library buffs out there!). In addition, the Federal Department of Education has created regulations that explain and implement the IDEA. These regulations can be found beginning at Title 34 Code of Federal Regulation (C.F.R.) Part 300. The IDEA was recently amended and the amendments were signed into law by President Clinton on June 4, 1997. Among other things, these new amendments strengthen the role of parents in the special education process. Additionally, many states have their own set of laws and regulations concerning special education. These state laws cannot provide for less than the federal laws and the federal laws will prevail over any conflict with state law.

Now, lets talk about the IDEA. The cornerstone of this law is the basic premise that every child is entitled to a "free appropriate public education" or FAPE, as we acronym aficionados refer to it. (There are numerous acronyms used in this area of the law and I will point them out as we go along.) ...Back to FAPE... A FAPE, according to the seminal United States Supreme Court decision means "...personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP..." Board of Education of Hendrick Hudson Central v. Rowley (1982), 458 U.S. 176, at page 203. What this means is that each child is unique and each child’s education program should be developed in a way that will allow the child to "benefit" from his/her education. At the very least, the child should be making some progress.

Related services are those that a child needs in order to benefit from his/her special education program. What do related services include? The IDEA includes the following as related services: transportation, speech-language pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, orientation and mobility services, counseling services, including rehabilitation counseling, and diagnostic/evaluation medical services. 20 U.S.C. Section 1401(22). In order to show that related services are necessary for a student to benefit from his/her education program, an evaluation by an expert is required; either an expert employed by the school district or an independent expert.

The IDEA emphasizes that students should be educated in the "least restrictive environment" (LRE). This means that students with disabilities should be educated together with students without disabilities whenever possible. This includes children who are in institutions or other care facilities. The IDEA provides that special classes or removal of students from regular education classes should only be considered "when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. Section 1412(a)(5)(A).

How do you get started if you think that your child might need special education and related services? You write a letter to your child’s teacher, the school principal or the special education office of your school district, requesting that your child be evaluated for special education services. It is very important to put everything in writing and include the date on the letter, when making requests regarding special education. Even if you make telephone calls, it is best to follow up with a letter confirming your conversation. This is because there are time lines involved that are triggered by dates. If you put it in writing, the time will begin to run. For example, if school is in a regular session and you request an assessment of your child, the school district has fifteen (15) days within which to provide you with an assessment plan and include a notice of parents’ rights.

A student’s special education is governed by an Individualized Education Program (IEP) which is a written program that is developed by a team of people that are knowledgeable about your child’s needs. The team must include the parent(s), a representative from the school district, a special education teacher, a regular education teacher (if appropriate), the student (if appropriate), any therapists who did assessments of the student, a district nurse (if appropriate) and anyone else suggested by the school district or the parent(s). The parent(s) may bring anyone they wish with them and often it is good policy to bring a friend who will take notes and act as an extra "pair of ears." The school district must notify the parent(s), in writing, as to who will attend the IEP meeting.

There are very specific requirements as to what must be included in a child’s IEP. Briefly (there is really no way to state these briefly), these are as follows:

1) A statement of the child’s present levels of educational performance including:

• how the child’s disability affects his/her involvement and progress in the general curriculum; or
• for preschoolers, how the disability affects the child’s participation in appropriate activities;

2) A statement of measurable annual goals, including benchmarks or short term objectives related to:

• meeting the child’s disability related needs to enable the child to be involved in and progress in the general curriculum; and
• meeting all of the child’s other educational needs that result from his/her disability;

3) A statement of the special education and related services, and supplementary aids and services to be provided to the child and a statement of the program modifications or supports for school personnel that will enable the child:

• to advance appropriately toward attaining annual goals;
• to be involved in the general curriculum as well as extracurricular and nonacademic activities; and
• to be educated and participate with non-disabled children in these activities;

4) An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and other activities, including:

• a statement and supporting evidence that indicates why the student’s disability prevents him/her from being educated in a less restrictive environment with the use of supplementary aids and services;

5) A statement of any modifications necessary in order for the child to participate in student achievement tests and if such tests are not appropriate for the child, a statement of why not and how the child will be assessed;

6) The date that services and modifications will begin and the frequency, location and duration of these services and modifications;

7) For students 14 years old or younger, a statement of the transition service needs of the child according to the child’s IEP and courses of study (i.e. vocational education);

8) For students 16 years old, or younger if appropriate, a statement of the needed transition services;

9) One year before a student turns 18, a statement that the student has been informed of his/her rights that will transfer to the student at age 18;

10) A statement of how the child’s progress toward the annual goals will be measured and how the child’s parents will be regularly informed of their child’s progress at least as often as parents are informed of their non-disabled children’s progress.

When appropriate, the IEP team should also consider the following:

• The strengths of the child and the concerns of the parents for enhancing the education of their child;

• The results of the most recent evaluations of the child;

• Behavioral interventions, strategies and support when appropriate;

• Braille instruction for blind or visually impaired students or other types of instruction as is appropriate for the child;

• Language and communication needs for deaf or hearing impaired students;

• Assistive technology needs and services;

• Linguistically appropriate goals, objectives, programs and services for students whose primary language is not English;

• Participation of the regular education teacher where appropriate.

Like I said, there is really no way to be brief about IEP requirements. The IDEA protects your rights as a parent when you disagree with the school district about your child’s education program.

 

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