|
|
By Matthew D. Cohen
Most children with disabilities receive special education and related
services through the public schools and receive the protections of the
Individuals with Disabilities Education Act (IDEA), the federal law that
governs special education. However, some children with disabilities are
instead served under Section 504 of the Rehabilitation Act of 1973. As there
are different criteria for eligibility, different services available,
different procedures for implementing the laws, and very different
procedural safeguards; it is important for parents, educators, clinicians
and advocates to be well aware of the variations between these laws and to
be fully informed about their respective advantages and disadvantages.
Typically, children covered under Section 504 either have less severe
disabilities than those covered under IDEA or have disabilities which do not
neatly fit within the categories of eligibility under IDEA. Children with AD
/HD are disproportionately found to be eligible under Section 504 versus
IDEA in comparison to children with other disabilities. This article will
explore the benefits and detriments of this phenomenon, as well as attempt
to explain why this tends to occur.
In order to have an understanding of the ways that these statutes operate,
it must first be understood that IDEA is the law that governs all special
education services in the United States. IDEA provides federal funding to
school districts to support special education and related services.
Historically, federal funding has represented a very small proportion of the
total funding spent on special education, although it has recently
increased, and it is anticipated that it will continue to rise for the next
several years. IDEA provides special education services for those children
who meet the criteria for eligibility in a number of distinct categories of
disability, each of which have their own criteria.
By contrast, Section 504 is a civil rights statute rather than a
programmatic statute. It conveys no funding of its own, but rather covers
all programs or activities, whether public or private, that receive federal
financial assistance. Receipt of federal financial assistance is defined as
involving receipt of assistance by the program, rather than by children in
the program. Thus, children in parochial schools who receive lunch subsidies
would not be protected by Section 504, whereas a private school which
receives direct financial support may very well be covered by Section 504.
Rather than providing services to children with disabilities, Section 504
requires that schools may not discriminate against children with
disabilities, and provide them with reasonable accommodations. Under some
circumstances, these reasonable accommodations may include the provision of
services. In any event, the criteria for eligibility under Section 504 are
very different than those under IDEA and are not based on specific
categories of disabilities.
I. Eligibility
Under IDEA, in order for a child to be eligible for special education, the
child must meet the criteria for eligibility contained in one of the
eligibility categories in the law. These categories are serious emotional
disturbance, learning disabilities, retardation, traumatic brain injury,
autism, vision and hearing impairments, physical disabilities, and other
health impairments. If the child meets the criteria listed under one or more
of these categories, his disabling condition adversely affects educational
performance, and he 2 requires special education, the child may be eligible
to receive services under this law.
Historically, AD/HD was not specifically listed as a discreet category under
the law or as one of the sub-categories. Because of this, there is much
confusion about whether AD/HD is covered under the law at all. In 1991, the
federal government issued a policy memorandum explaining that ADD was a
condition which could be covered under IDEA under the category "Other Health
Impaired," if the child met the criteria. In particular, the federal
government indicated that children could be eligible if they were diagnosed
with ADD, and the ADD resulted in limited alertness to academic tasks, which
adversely affected educational performance and required special education
intervention. On March 12, 1999, the U.S. Department of Education issued
final regulations implementing the 1997 Amendments to the IDEA. These
regulations, for the first time, explicitly incorporated ADD and AD /HD into
the disability category of "Other Health Impairment." Tracking the language
of the 1991 Policy Letter and subsequent interpretations, the new regulation
provides as follows:
"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."
By contrast, Section 504 bases eligibility on the existence of an identified
physical or mental condition that substantially limits a major life
activity. Learning is defined to be a major life activity. Thus, children
diagnosed with ADD are entitled to the protections of Section 504 if their
ADD substantially limits learning. Whether eligibility under IDEA or Section
504 is being considered, there is a strong basis to believe that the child's
academic functioning should be broadly evaluated to include social,
emotional, behavioral, vocational and academic functioning.
In contrast to IDEA, Section 504 protects children who require related
services even if they do not require special education. On the other hand,
IDEA provides that children are eligible for protections if and only if they
require special education in order to respond to the difficulties caused by
their disability. According to the 1999 regulations, special education is
defined to include specially designed instruction within the regular
classroom.
II. Evaluation Procedures
IDEA describes in detail the multi-disciplinary evaluation procedure
required to determine if a child is eligible for special education, requires
that the child be reevaluated every three years, and provides a variety of
specific rules relating to non-discriminatory test procedure. It also
requires that the school district consider the findings of outside
evaluators and, under some circumstances, pay for independent evaluations.
Parent consent is required before any initial testing is completed. The
recently passed amendments to IDEA extend the consent requirements even
further to include any reevaluation.
By contrast, although Section 504 requires testing and that the testing be
nondiscriminatory, it contains far less regulation with respect to the
testing procedure than is contained in IDEA. Moreover, Section 504 contains
no procedures relating to the frequency of testing or to the consideration
of outside evaluations, and does not require parent consent for testing.
Importantly, Section 504 does require an evaluation or reevaluation before
any change in the child's Section 504 Plan.
III. Child Find
Under IDEA, school districts are affirmatively obligated to identify and
evaluate children suspected of having a disability, and, where appropriate,
provide services to all children suspected of having disabilities who reside
in the school district. This includes children who reside in a school
district, but are not enrolled in the public schools. This provision, called
"Child Find," requires school districts to take steps to publicize the
availability of screening and evaluation procedures throughout the 3
community in an effort to ensure that all children with disabilities are
identified.
On the contrary, under Section 504, the schools are only obligated to
identify and locate children with disabilities who reside within the
district and are not receiving a public education. This distinction would
appear to imply that children who are in the public schools, but have not
been evaluated for special education or 504 protections, are not covered
under the Section 504 "Child Find" procedures.
IV. Appropriate Education
Both IDEA and Section 504 require that the schools provide a free
appropriate public education to children who are identified as having a
disability and meeting the criteria for eligibility under these laws. Under
IDEA, once a child is determined to be eligible for special education, the
child is entitled to have an individual education plan (IEP) that includes
annual goals and short-term objectives, which is developed with the
participation of the parents. The statute and regulations further provide
that the IEP must be reviewed at least annually and contain specific
measurable objectives using objective criteria. If the child is eligible
under Section 504, the school district must develop a Section 504 plan.
However, the regulations do not provide for any procedures dictating the
frequency of review of the 504 plan, nor specifying the right of parents to
participate in the development of the plan.
Many misconceptions exist with respect to the applicability of both IEPs and
504 plans. On the one hand, school districts frequently and erroneously
assert that IEPs are only applicable within special education classrooms,
whereas they are actually applicable in any regular education classroom
where the child's goals and objectives should be addressed and/ or the child
requires special education or related services. Similarly, many schools and
parents believe that Section 504 plans are only applicable within regular
education and do not confer any right to receive specialized education or
related services. This is also not the case. There is no limitation in the
Section 504 regulations on the site where 504 services can be delivered, the
nature of services to be delivered, or limitation on non-academic services,
such as counseling and health services. In fact, the Section 504 regulations
refer to counseling services specifically.
V. Least Restrictive Environment
Both IDEA and Section 504 require that services for children with
disabilities be provided within the least restrictive environment. Each
provides that children with disabilities shall be educated to the maximum
extent appropriate with children who do not have disabilities unless it is
demonstrated that education of the child in the regular education
environment with the use of supplementary aids and services can not be
achieved satisfactorily. Significantly, this least restrictive environment
provision implies, although it does not state, the need for a continuum of
services under Section 504 in the same way that the law explicitly requires
the provision of a continuum of services under IDEA. As with other parts of
the law, the IDEA regulations go further than the Section 504 regulations in
requiring that the child be educated in the class that he or she would be in
if they did not have a disability, unless the IEP requires otherwise, and as
close to home as possible. There is no comparable provision in the Section
504 regulations.
VI. Procedural Safeguards and Due Process
Under IDEA, parents have the right to consent to initial evaluation and
services within special education, the right to notice of and participation
in all IEP meetings to discuss their child's placement, the right to notice
of procedural safeguards whenever the school district proposes to take or
refuses to take action with respect to the child or when the school is
proposing any change in placement or services, and the right to request an
impartial due process hearing. At this hearing, they have the right to an
independent hearing officer, to present testimony and cross examine
witnesses, to exclude evidence not presented by the opposing side at least
five days prior to the hearing, the right to counsel, and the right to a
written decision within ten days and a verbatim or taped transcript.
Under Section 504, the parents have a right to notice, to review records, an
impartial hearing with the opportunity for participation by the parents and
by counsel, and a review procedure. While Section 504 regulations reference
IDEA procedures as one way to meet these requirements, they do not require
use of IDEA procedures. As well, Section 504 procedures allow for the school
district to appoint an impartial hearing officer, whereas, 4 under IDEA
procedures, the hearing officer is appointed by the state education agency.
Further, Section 504 regulations contain no specific provision for
incorporating the parents in the decision- making process.
Finally, and perhaps of greatest importance in many cases, IDEA provides
that if parents request an impartial due process hearing, the child must
remain in the then- current educational placement until such time as all
administrative and legal proceedings are concluded. This provision is called
the "stay-put" or "frozen placement" provision. Under the 1999 IDEA
regulations, a suspension in excess of ten school days, a series of
suspensions which add up to more than ten days and are grouped in time or
are a pattern of behavior or an expulsion, are changes in placement that can
trigger the stay-put placement provision if the parent requests a due
process hearing challenging the proposed suspension or expulsion. Note,
however, that school districts may unilaterally transfer a child to an
interim alternative educational setting for up to 45 days if the student is
involved with drugs or dangerous weapons at school or at a school function
and may do so upon the order of a hearing officer if the child is proven to
be substantially likely to harm him/herself or others.
Section 504 does not contain a similar stay-put placement provision. Thus,
if a child is only identified as eligible under 504, regulations do not
provide that a challenge to suspension or expulsion will allow the child to
remain in school. However, the Office for Civil Rights has opined that
suspension in excess of ten school days is a change of placement, which
triggers the obligation to conduct an evaluation before implementing the
change.
It should be noted that even under IDEA, a school district retains the right
to go to court to seek a court order allowing for an emergency change in
placement if the child is dangerous or, under the newly enacted amendment to
IDEA, to seek an expedited due process hearing. Additionally, under the IDEA
amendments that were just passed, the school district will have greater
discretion to change a child's placement for up to forty- five days if the
child is accused of bringing a dangerous weapon or drugs to school. Even
given these pending changes, the IDEA stay-put provisions still provide
greater procedural safeguards for children, particularly those with
behavioral issues, than are provided under Section 504.
VII. Enforcement
As indicated previously, under IDEA, parents retain the right to request an
impartial due process hearing if they are unhappy with action or inaction by
the school district. In addition, parents can file a complaint with the
state education agency or even with the U.S. Department of Education itself,
alleging noncompliance with IDEA procedures. When such complaints are filed,
either the state education agency or the U.S. Department of Education will
conduct their own investigation and determine whether the school district is
in non- compliance and corrective action is needed.
Under Section 504, parents may file a request for an impartial due process
hearing with the school district, as is true with IDEA. Parents may also
file complaints with the U.S. Department of Education Office for Civil
Rights alleging violations of Section 504. Currently, the Office for Civil
Rights is prioritizing systemic, as opposed to individual, complaints.
As a general matter, families cannot go to court under IDEA unless they have
exhausted the administrative due process hearing procedures first. Moreover,
they are generally limited to prospective relief or compensatory education.
Under Section 504, parents are sometimes able to go to court without
exhausting administrative procedures, and, under some circumstances, money
damages may be available under Section 504. However, if a problem could be
construed as being covered by both IDEA and Section 504, the courts have
generally required that the parents follow IDEA procedures before they are
allowed to be heard by the court under Section 504.
VII. Conclusion
In general, Section 504 provides a faster, more flexible, and less
stigmatizing procedure for obtaining some accommodations and services for
children with disabilities. By virtue of the looser eligibility criteria,
some children may receive protection who are not eligible for services or
protection under IDEA. Furthermore, because the regulations are less
specific, less information is needed in order to obtain Section 504
eligibility. Thus, Section 5 504 can provide an efficient way to get limited
assistance without all the stigma and bureaucratic procedures attached to
IDEA, particularly for children with less serious disabilities.
On the other hand, IDEA, by virtue of the existence of a vast bureaucracy
and state and federal funding of services, offers a wider range of service
options that are already in existence for children with disabilities. The
procedures for parent participation and procedural safeguards are far more
extensive and the degree of regulation is far more specific under IDEA than
under Section 504. Also, as indicated above, the procedural safeguards with
respect to due process and discipline are especially important and far more
meaningful. Parents must make an individual decision based on the
circumstances confronted by their child as to whether it is preferable for
the child to be served under Section 504 or IDEA.
As a practical matter, parents should be especially concerned about the
less rigorous procedural safeguards provided by Section 504 if their child
has behavioral challenges that may give rise to the potential for excessive
discipline and the need to exercise stay-put placement procedures. Under
other circumstances, where the child's needs are minimal, particularly where
the child's needs are limited to easy classroom modifications or
administration of medication, Section 504 may be an efficient way to provide
the child with what is needed without the elaborate special education
procedures.
It is important for the parents to realize that many school districts will
push for the child to be served under Section 504 rather than under IDEA
precisely because the school district has greater administrative latitude
and less accountability than under IDEA. Further, because of the greater
procedural safeguards, and especially the stay-put placement provision,
schools have less discretion to use regular discipline with children under
IDEA than under Section 504. Thus, many school districts are unwilling to
consider eligibility for children with AD /HD under the Other Health
Impaired category under IDEA, even though the child may be entitled to
eligibility and services under IDEA. Parents should be aware of the legal
provisions relating to these considerations in order that the parents and
the school are making the decision on an informed basis individualized to
the needs of the child, rather than based on the administrative concerns of
the school district. Parents are encouraged to get consultation from outside
clinical professionals and lawyers in assessing the desirability of these
options.
IDEA – PART B FINAL REGULATIONS PROVISIONS OF SPECIAL INTEREST TO PARENTS
March 1999
Below is a description of selected provisions in the final IDEA -Part B
regulations (including certain terms that have been retained, modified, or
added since publication of the NPRM) that may be of special interest to
parents:1
General Changes
1. All notes in the NPRM have been removed from the final regulations, and
have been addressed, as follows: The substance of the notes has been (1)
added to the text of the regulations if it was considered to be a
requirement; (2) added to Appendix A (formerly appendix C) if it was
directly relevant to the Notice of Interpretation on IEPs; or (3)
incorporated into the discussion of applicable comments in the Analysis of
Comments and Changes. All other notes have been deleted.
2. Two "Appendices" have been included in the final regulations: Appendix A
-Notice of Interpretation on IEPs; and Appendix B -Index to IDEA - Part B
regulations.
3. Three " Attachments" have been added, as follows: Attachment 1 -Analysis
of Comments and Changes; Attachment 2 -Final Regulatory Flexibility
Analysis; and Attachment 3 -Table showing "Disposition of NPRM Notes in
Final Regulations..."
Note: The description of changes made to specific sections of the
regulations since the NPRM does not include all changes made to those
sections, nor does it include all changes in which parents may have an
interest (See “Major Changes…” in the preamble of the final regulations for
a more complete description.)
Definitions
1. Adding "ADD/ADHD" to "Child with a Disability." Attention deficit
disorder" and "attention deficit hyperactivity disorder" have been added as
conditions that c ould render a child eligible under the '1 other health
impairment" category. (See §300.7(c)(9).)
2. "Parent Counseling and Training." The statement, "helping parents
to acquire the necessary skills that will allow them to support the
implementation of their child's IEP or IFSP" has been added to the
definition of "parent counseling and training." (See §300.12(b)(7).)
3. "Travel Training." "Travel training" has been added to the
definition of "special education," and defined to mean: "Providing
instruction, as appropriate, to children with significant cognitive
disabilities and any other children who require this instruction, to enable
them to (i) develop an awareness of the environment in which they live; and
(ii) learn the skills necessary to move effectively and safely from place to
place within that environment (e.g., in school, in the home, at work, and in
the community.)." (See §300.26(b)(4).)
Free Appropriate Public Education (FAPE)
1. Comprehensive Evaluation. The evaluation procedures in §300.532
have been amended to provide that each child's evaluation must be
sufficiently comprehensive to identify all of the child's special education
and related services needs, including any needs the child has that are
commonly linked to a disability other than the disability in which the child
has been classified. (See §300.532(h).)
2. Ineligibility -Lack of Instruction or Limited English
Proficiency. The final regulations clarify that a child may not be
determined eligible under 7 IDEA-Part 8 if - "(1) The determinant factor for
that eligibility determination is -(i) Lack of instruction in reading or
math; or (ii) limited English proficiency; and (2) the child does not
otherwise meet the eligibility criteria under §300.7(a)." (See §300.534(b).)
3. Services Based on Identified Need. The FAPE requirements in
§300.300 have been amended to make clear that services provided to an
eligible child must - (A) address all of the child's special education and
related services needs, and (8) be based on the identified needs of the
child, and not the child's disability category. (See §300.300(a)(3).)
4. Use of Assistive Technology in a Child's Home if Needed for FAPE.
On a case-by-case basis, the use of school-purchased assistive technology
devices in a child's home or in other settings is required if the child's
IEP team determines that the child needs access to those devices in order to
receive FAPE. (See §300.308.)
5. Extended School Year (ESY) Services. Section §300.309 (ESY
services) has been amended to clarify that a public agency may not limit ESY
services to particular categories of disability, or unilaterally limit the
type, amount, or duration of those services. (See §300.309(a)(3).)
6. Graduation policy retained: prior notice and evaluation addressed.
The final regulations retained the policy position that a student's right to
FAPE is terminated upon graduation with a regular high school diploma, but
is nQ1 terminated by any other kind of graduation certificate or diploma.
The regulations also specify that -
? WRITTEN PRIOR NOTICE IS REQUIRED in accordance with §300.503, because
graduation from high school with a regular diploma constitutes a change in
placement (see §300.122(a)(3». School districts will be expected to provide
the notice " a reasonable time" before proposing to graduate a student, in
order to ensure that there is sufficient time for the parents and student to
plan for, or challenge, the pending graduation. (See Analysis of comments
related to §300.122.).
? EVALUATION IS NQI REQUIRED BEFORE GRADUATION (i.e., the provision
requiring that a student be evaluated before determining that he or she is
no longer eligible under Part B does not apply if the termination of
eligibility .is due to graduation with a regular diploma or aging out under
State law). (See §300.534(c).)
Children with Disabilities in Public Charter Schools
? Children and Parents Retain All Rights. Anew §300.312 has been added,
which makes it clear that children with disabilities in public charter
schools and their parents retain all rights under this part, and that
compliance with Part B is required regardless of whether a public charter
school receives Part B funds.
Children Experiencing Developmental Delays (§300.313)
? Provisions Related to "Developmental Delay." A new §300.313 has been added
to - (1) specify the conditions that States and LEAs must follow in using
the term; and (2) clarify that a State or LEA that elects to use "
developmental delay" also may use one or more of the disability categories
for any child who has been determined (through the IDEA evaluation
procedures) to have a disability and need special education. Thus, if a
child has an identified disability (e.g., deafness), it would be appropriate
to use the term with that child even if the State or LEA is using
"developmental delay" for other children aged 3 through 9. The regulations
also make clear that 8 a State may adopt a common definition of"
developmental delay" under Parts Band C of the Act.
Individualized Education Programs (IEPs -§§300.340-300.350)
1. Involving All Teachers and Service Providers Who Implement a Child's
IEP. To enhance implementation of each child's IEP, the final
regulations provide that public agencies must ensure that -(1) the IEP is
accessible to each child's teachers and service providers; and (2) each
teacher and provider responsible for implementing the IEP is informed of his
or her responsibilities and of the specific accommodations, modifications,
and supports that must be provided for the child in accordance with the IEP.
(See §300.142(b).)
2. Regular Education Teachers as IEP Team Members. The final
regulations include the statutory requirements of IDEA '97 regarding regular
education teachers on the IEP team (i.e., (A) the team must include at least
one teacher, if the child is or may be participating in the regular
education environment (see §300.344(a)(2», and (B) the teacher must, to the
extent appropriate, participate in the IEP process, including assisting in
the determination of positive behavioral interventions, and of supplementary
aids, program modifications, and supports for school personnel that will be
provided for the child. (See §300.346(e).)
3. Inviting "Other Individuals" to be on IEP Team. To ensure that
parents may invite any individual "with knowledge or special expertise" to
be on the IEP team, the final regulations provide that the determination of
the individual's knowledge or expertise is made by the party who invited the
individual (i.e., the parents or the public agency). (See §300.344(c).)
4. Informing Parents About "Other Individuals" on IEP Team. The final
regulations provide that public agencies must inform parents relating to the
participation of other individuals on the IEP team who have knowledge or
special expertise about the child (i.e. the ability of either party –the
parents or public agency -to invite individuals with knowledge or special
expertise to be on the IEP team). (See §300.345(b).)
5. Considering Each Child's Performance on General Assessments. The
final regulations clarify that, in developing each child's IEP, the IEP team
(in addition to considering the strengths of the child and the results of
evaluations) also must consider " As appropriate, the results of the child's
performance on any general State or district-wide assessments." (See
§300.346(a)(i).)
6. Consideration of Special Factors (Added without change from IDEA
'97). IDEA '97 required the IEP team to consider special factors related to
each child. These statutory considerations, which were not changed in either
the NPRM or the final regulations, include the following:
A. BEHAVIOR THAT IMPEDES LEARNING. In the case of a child whose behavior
impedes his or her behavior consider, if appropriate, strategies, including
positive behavioral interventions, strategies, and supports to address that
behavior. (See §300.346(a)(2)(1).)
B. LIMITED ENGLISH PROFICIENCY. in the case of a child with limited English
proficiency, consider the language needs of the child as they relate to the
child's IEP. (See §300.346(a)(2)(ii).)
C. BRAILLE NEEDS. In the case of a child who is blind or visually impaired,
provide for instruction in braille... unless the IEP team determines that it
is not appropriate for the child. (See §300.346(a)(7)(iii).)
D. COMMUNICATION NEEDS. "Consider the communication
9 needs of the child, and in the case of a child who is deaf or hard of
hearing, consider the child's language and communication needs..." (See
§300.346(a)(2)(iv).) E. ASSISTIVE TECHNOLOGY. Consider whether the child
requires assistive technology devices and services. (See §300.346(a)(2)(v).)
7. Parents to Receive Copy of IEP. The final regulations provide that
parents must be given a copy of their child's IEP(s), without cost and
without having to request it. (See §300.345(f).)
8. IEP Accountability: Parent Right to Invoke Due Process. The final
regulations make clear that (A) each public agency in addition to providing
services, must make a good faith effort to assist the child to achieve the
goals and objectives or benchmarks listed in the IEP; and (B) "Nothing in
this section limits a parent's right to ask for revisions of the child's IEP
or to invoke due process procedures if the parent feels that the efforts
required in paragraph (a) of this section are not being made." (See
§300.350.)
Procedural Safeguards
1. Independent educational evaluation (IEE). If a parent requests an
IEE, a public agency may ask why the parent objects to the public
evaluation, but may nQ1 require the explanation; and "the public agency may
not unreasonably delay either providing the [IEE] at public expense or
initiating a due process hearing to defend the public evaluation. " (See
§300.502.)
2. Parental consent. The final regulations on parental consent (1)
replace "consent" with "informed parent consent;" (2) add "reevaluation" to
the list of actions requiring consent; and (3) add that " A public agency
may not use a parent's refusal to consent to one service or activity...to
deny the parent or child any other service, benefit, or activity of the
public agency, except as provided by this part." (See §300.505.) The
regulations also provide that "With regard to services required to provide
FAPE to an eligible child under this part a public agency may access a
parent's private insurance proceeds only if the parent provides informed
consent consistent with §300.500(b)(1) [definition of "consent"]." (See
§300.152(f).)
3. Mediation. The final regulations provide that if a mediator is not
selected on a random (e.g., a rotation) basis from the State's list, both
parties are involved in selecting the mediator and agree with the selection
of the individual who will mediate. (See 300.506(b)2)(ii).)
4. Change of Placement Based on Hearing Officer Decision. The final
regulations provide that if a State hearing or review officer's decision
agrees with the parent's position that a change in the child's placement is
appropriate, the decision must be implemented at that point even if the
public agency appeals that decision. This provision, which is consistent
with most of the court decisions that have addressed this question, ensures
that children will not remain in inappropriate placements for prolonged
periods of time while a public agency appeals a decision in the parent's
favor. (See §300.514(c).)
Evaluation-Eligibility: Least Restrictive Environment (LRE)
1. Procedures for determining eligibility -Obtaining parent input.
"Parent input" has been added to the variety of sources from which the
public agency will draw in interpreting evaluation data for the purpose of
determining a child's eligibility under this part. (See §300.535(a)(I).)
2. LRE -Placements. A new §300.552(e) has been added that prohibits
the removal of a child with a disability from an age-appropriate regular
classroom solely because of needed modifications in general curriculum.
State Complaint Procedures
1. Remedies for denial of appropriate services. The final regulations
provide that if an SEA, in resolving a complaint, finds a failure to provide
appropriate services to a child with a disability, the SEA must address:
"(1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary re imbursement or corrective action,
which could include compensatory services or other corrective action
appropriate to the needs of the child..." (See §300.660(b).)
2. Complaints vs. due process hearings. A new §300.661(c) has been
added to clarify that -(A) if an issue in a complaint is the subject of a
due process hearing, that issue (but not any 'issue outside of the hearing)
would be set aside until the conclusion of the hearing; (B) the decision on
an issue in a due process hearing is binding; and (C) a public agency's
failure to implement a due process decision would have to be resolved by the
SEA.
Discipline Procedures
Introduction. Prior to enactment of the IDEA Amendments of 1997, the
statute only specifically addressed the issue of discipline in a provision
that allowed school personnel to remove a child to an interim alternative
educational placement for up to 45 days if the child brought a gun to school
or to a school function. The 1997, amendments incorporated prior court
decisions and Department policy that had held that- (1) schools could remove
a child for up to ten school days at a time for any violation of school
rules as long as there was not a pattern of removals; (2) a child with a
disability could not be long- term suspended or expelled from school for
behavior that was a manifestation of his or her disability; and (3) services
must continue for children with disabilities who are suspended or expelled
from school.
In addition, the 1997 Amendments (1) expanded the authority of school
personnel regarding the removal of a child who brings a gun to school, to
also apply to all dangerous weapons and to the knowing possession of illegal
drugs or the sale or solicitation of the sale of controlled substances; and
(2) added a new ability of schools to request a hearing officer to remove a
child for up to 45 days if keeping the child in his or her current placement
is substantially likely to result in injury to the child or to others. The
Amendments also added new provisions that require schools to assess a
child's troubling behavior and develop positive behavioral interventions to
address chat behavior, and that describe how to determine whether the
behavior was a manifestation of the child's disability.
The final regulations incorporate the statutory provisions described above,
and provide additional specificity on a number of key issues:
Removals of Up to Ten School Days at a Time
? The regulations clarify that school personnel may remove a child with a
disability for up to ten school days, and for additional removals of up to
ten school days for separate acts of misconduct, as long as the removals do
not constitute a pattern.
Providing Services During Periods of Disciplinary Removal
? Schools do not need to provide services during the first ten school days
in a school year that a child is removed.
? During any subsequent removal that is for less than ten school days,
schools provide services to the extent determined necessary to enable the
child to appropriately progress in the general curriculum and appropriately
advance toward achieving the goals of his or her IEP. In cases involving
removals for ten school days or less, school personnel, in consultation with
the child's special education teacher, make the service determination.
? During any long-term removal for behavior that is not a manifestation of a
child's disability, schools provide services to the extent determined
necessary to enable the child to appropriately progress in the general
curriculum and appropriately advance toward achieving the goals of his or
her IEP. In cases involving removals for behavior that is not a
manifestation of the child's disability, the child's IEP team makes the
service determination.
Conducting Behavioral Assessments and Developing Behavioral Interventions
? Meetings of a child's IEP team to develop a behavioral assessment plan, or
(if the child has one) to review the child's behavioral intervention plan,
are only required when the child has first been removed from his or her
current placement for more than ten school days in a school year, and when
commencing a removal that constitutes a change in placement.
? If other subsequent removals occur, the IEP team members review the
child's behavioral intervention plan and its implementation to determine if
modifications are necessary, and only meet if one or more team members
believe that modifications are necessary.
Change of Placement: Manifestation Determinations
? The regulations provide that a change of placement occurs if a child is
removed for more than ten consecutive school days or is subjected to a
series of removals that constitute a pattern because they accumulate to more
than ten school days in a school year, and because of factors such as the
length of each removal, the total amount of time the child is removed. and
the proximity of the removals to one another.
? Manifestation determinations are only required if a school is implementing
a removal that constitutes a change of placement.
This publication was produced by CHADD, Children and Adults with
Attention- Deficit/Hyperactivity Disorder. For more information about the
organization, please contact CHADD at 800-233-4050 or visit the web site at
www.chadd.org.
Matthew Cohen is a partner in the Chicago law firm of Monahan & Cohen and
practices in the area of special education. This article is for general
education purposes and should not be construed as legal advice. Readers are
encouraged to seek legal advice if they are having a dispute with their
school. This is an updated and expanded version of article which first
appeared in the Summer 1997 issue of ATTENTION!? magazine.
|
 |
|
|
| |
“The only pure and consistent advocates for a child are his or her parents
or family members,” explains Betsy Primm, coordinator of Georgia Learning
Resource Services Metro-North branch. “That doesn’t mean that educators
don’t advocate every day for their students, but year in and year out, that
is a parent’s role.” |
|
 |
|
