A Guide to Special Education Advocacy

What Parents, Clinicians and Advocates Need to Know

Matthew Cohen

• Publisher: Jessica Kingsley Publishers
• Year: 2009
• ISBN:
  9781846429217
• Topic: Éducation
• Subtopic: Éducation inclusive

Disability law can be complex and intimidating, so how can concerned parents use it to ensure their child with a disability receives the appropriate education they are legally entitled to?

A Guide to Special Education Advocacy gives strategies for advocating for better provision of special education in schools. Despite the many services and accommodations that have been made for students with disabilities, such as the use of Braille or providing specialized education in a regular or special classroom,many children with disabilities do not get the services they need andarenot placed in appropriate programs or settings.Becauseof this,the perception of disability often remains unchanged. Matthew Cohen's insightful manual gives a practical vision of how a parent or a professional can become an advocate to achieve a more inclusive and rewarding education for the child with a disability.

This book will provide parents, people with disabilities, professionals and clinicians thinking about special education advocacy with an overview of current disability law and how it works, identifying practical ways for building positive and effective relationships with schools.

CHAPTER 1

An Overview of Legal Protections for Children with Disabilities

Children with disabilities may, depending on the circumstances, be eligible for the protections of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, both of these laws, or neither. In order to understand the special education system and the protections that are potentially available for children with disabilities, it is important to understand both laws, how they interact, and under what circumstances they are applicable. Also, both laws are used in very different ways, depending on the school system and the disability. Given three children with identical needs, one school system may address the child’s needs under the IDEA, another under Section 504, and the third may refuse services or provide them through regular education. Depending on the circumstances, all of these options might be reasonable; but, in many instances, one option may be more appropriate, even if it is not agreed to by the school system. This chapter provides an introduction to these laws to provide a context for the more detailed discussion to follow.

A brief overview of the 1975 IDEA

The IDEA, originally called the Education for All Handicapped Children (EAHCA) or Public Law 94-142, is a statute that provides states (and local school districts) with federal funding on the condition that the states adhere to the special education requirements established by the U.S. Congress. The IDEA was intended to provide enough federal money to make special education services affordable for states and school districts. Congress promised that the federal government would provide 40 percent of the funds states need to deliver special education services. Unfortunately, since the law was passed, Congress has never provided that level of federal funding. In fact, in recent years, the federal funding is inching toward only 20 percent of the total cost, and promised increases seem illusory.

Adopting the five benchmark principles of the Pennsylvania and District of Columbia court cases (discussed in the introduction), Congress incorporated into the IDEA sweeping and detailed requirements for how special education was to be delivered, including requirements for parental participation and for outside review.

The provisions of the IDEA were further clarified by U.S. Department of Education regulations that became effective in 1977. The IDEA has been amended several times since 1975, most recently in 2004, and will be due for review in 2009, though this review will more likely not occur until 2010 or beyond. The Department of Education regulations have, as a result, also been modified several times to make regulations conform to the new provisions of the law. This occurred most recently in 2006.

Throughout this book, where references are made to specific provisions of the IDEA or Section 504, the references will be to the federal regulations interpreting the law, as they are more detailed. The federal regulations for the IDEA begin at 34 Code of Federal Regulations (CFR) 300. The references to the Section 504 regulations begin at 34 CFR 104.

At its core, the IDEA requires that, in order to be eligible for special education services, a child must meet the criteria for at least one of the categories of disability specified by the law. The disability has to affect educational performance adversely and require special education services. The judgments about whether a qualifying disability exists must be made based on a comprehensive, multidisciplinary evaluation, carried out by professionals trained to conduct the necessary testing and using nondiscriminatory tests created for the specific purposes for which they are being used. Equally important is that parental consent is required both prior to the initiation of testing and prior to the initiation of special education services. The law also calls for periodic reevaluation and requires schools to consider and, under some circumstances, pay for independent educational evaluations. In addition, on December 1, 2008, the U.S. Department of Education issued final regulations amending several important rules relating to special education and the Individuals with Disabilities Education Act. These regulations took effect on December 31, 2008. Two changes are of particular importance for all parents and for educators.

First, for the first time in the history of special education, parents now have the right to revoke consent at any time to their child’s participation in special education. The revocation must be provided to the school district in writing. The parent must be provided with a notice from the school district indicating that the revocation constitutes a change of placement/ status and explaining the parents’ rights. The parents or the school may at a subsequent date request that the child be reconsidered for special education again. However, if the parents revoke the consent for special education, the school is not responsible for the failure to provide a free appropriate education. The new regulation addressing this issue is 34 Code of Federal Regulations 300.300(b). If the parent revokes consent, the school district may not pursue a due process hearing or other legal measures to overturn the parents’ decision.

The second major change involves representation at due process hearings. Previously, prevailing interpretation of the IDEA provided that the parents could be assisted at due process hearings by non-lawyers, regardless of the state’s rules regarding unauthorized practice of law by non-attorneys. Under the new IDEA regulations, the rules as to whether a non-lawyer may represent either the parent or the school at a due process hearing will now be governed by state law. It will now be necessary for parents to investigate the rules in their state regarding unauthorized practice of law.¹

The most fundamental requirement of the law is that children with disabilities who are eligible for special education services are entitled to receive a “free appropriate public education” (commonly referred to as FAPE). While this term continues to be the source of controversy and litigation to this day, it is unquestionable that Congress, in using this language, intended to set a floor of opportunity—a minimum standard of educational quality that the schools are required to meet in providing services to children with disabilities. The law specifies that, in order to receive an FAPE, children with disabilities must be provided with special education and related services necessary for them to benefit from their education. These services are to be provided pursuant to an individualized education program (IEP) that is tailored to meet the unique needs of the particular student. In a dramatic departure from regular education procedures, these IEPs must be developed with the full participation of the parents and must be reviewed and revised as needed, but at least annually.

Hand in hand with the requirement that an FAPE be provided, the IDEA also requires that the special education program be delivered in the least restrictive environment appropriate for the child. The schools are obligated to provide support to children with disabilities to help them be successful in regular education where possible. Even where a child with a disability is to be educated for part or all of the day in an environment other than a regular education setting, such as a special education class, the law requires that the child be “mainstreamed”—or included with typically developing peers—to the maximum extent appropriate. This means that the child should still be able to participate in regular education as much as possible, even if his or her primary educational programming is being delivered outside of regular education.

The IDEA also sets out a broad array of legal protections for children and parents, again beyond those of regular education. Parents have the right to access their child’s educational records, including all results of testing. They have the right to be notified of any proposal to initiate, change, or terminate programs or services and to participate in the decisions surrounding those proposals. They have the right to be informed in advance of any formal IEP meetings, including receiving information about who will be invited and what will be discussed, and to have the meetings occur at a convenient time. There are also extensive rules relating to how schools should respond to children with disabilities who are having behavioral problems, including procedures for promoting positive behavioral intervention strategies to respond to problem behavior and detailed procedures for what schools may do in response to serious behavioral difficulties.

In order to ensure that all of these requirements are fully carried out and recognizing the importance of parental participation and empowerment, the law also gives parents (and school districts) the right to request an impartial hearing to resolve disputes concerning a school district’s proposals, action, or even failure to act. Parents may request hearings for a wide array of reasons, including a school district’s refusal to evaluate a child or make the child eligible for services, a school district’s proposal to place the child in a program or setting parents disagree with, a school’s failure to provide sufficient or effective services, a school’s decision to discipline a child in a way the parents disagree with, or a school’s decision to terminate services or even graduate a child when the parent feels the child needs more help. Schools may also request hearings against parents, for reasons including the parent’s refusal to consent to have their child evaluated.

The IDEA also sets forth rules for how these impartial hearings must be conducted. The rules include the rights to have a hearing within a specified time frame, to have an attorney involved, to receive all written evidence at least five days prior to the start of the hearing, to present written evidence and oral testimony and to cross examine any witnesses presented by the opposing party, to receive a written or electronic transcript of the proceedings, and to receive a written order from the hearing officer. Either party may appeal the decision of the impartial hearing officer to a court if they are dissatisfied with the outcome. (State laws specify the statute of limitations period or deadline for filing a due process request or an appeal in court.) Some states also provide a second level of administrative review prior to appealing in court.

In an effort to avoid where possible due process and court proceedings, the law also provides for a voluntary mediation procedure. In this procedure, the parents and the school district can meet with an independent and impartial mediator in an effort to reach an agreement about their particular dispute. Mediation can occur only if both parties agree to participate. However, mediation is not like binding arbitration. The mediator has no power, and, if the mediation is unsuccessful, the parties retain the ability to go forward with a due process hearing if needed. In my own experience, as will be described in detail, mediation is a very valuable process that often resolves disputes that appeared impossible to resolve.

In 2004, Congress added an alternative to mediation, prior to a due process hearing, called a “resolution session.” This meeting is intended to provide the parties an opportunity to resolve the dispute prior to proceeding to a hearing, but does not include a mediator.

The IDEA, in short, provides sweeping and detailed requirements for the provision of appropriate educational services to children with disabilities, as well as broad mandates for parental involvement in decision making. If anything, the several rounds of revisions of the law, most recently in 2004, as previously stated, have led to even more prescriptive rules regarding school conduct, in recognition of a persistent lack of compliance by the schools with existing procedures. This has set up a paradoxical situation in which noncompliance begets greater regulation, which, in turn, precipitates greater tension but not necessarily improved compliance. In some circumstances, Section 504 may then come into play as a mechanism to address a dispute that is not resolvable within the parameters of the IDEA.

A brief overview of Section 504 of the Rehabilitation Act of 1973

Unlike the IDEA, Section 504 is a civil rights law, rather than a funding statute. Its requirements are simple and direct:

No otherwise qualified individual with a disability in the United States . . . , shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financing assistance.

Section 504 does not provide any federal funding. Rather, like several other civil rights laws, it attaches civil rights protections to any federal funds provided to a public or private organization. Because all states and school districts receive federal funds for a wide variety of activities, they are all governed by the Section 504 requirements. While the IDEA contains clear directives with respect to the special education procedures schools must follow if they elect to accept federal money, Section 504 contains only the language cited above. The specific rules implementing Section 504 are either contained in the regulations adopted by the federal government or have been established by virtue of court rulings and the Department of Education’s interpretations of its requirements and limits. This means that the rules governing implementation of the IDEA are clearer than those of Section 504.

Under Section 504, a person is covered if he or she has a physical or mental impairment that substantially limits a major life activity, if he or she is perceived as having such an impairment, or if he or she has a history of having such an impairment. The law offers no specific categories of disability and no specific criteria for eligibility. But, under the law, learning itself is considered a major life activity. Thus, children with disabilities are protected by Section 504 if they have a disability that substantially limits learning and/ or other major life activities.

Like the IDEA, the decision about whether a student qualifies must be made based on an evaluation that utilizes nondiscriminatory testing procedures. Unlike the IDEA, however, these procedures are described only in a general way. If it is determined that a child does have a physical or mental impairment that substantially limits learning or other major life activities, the school must also determine whether the child needs special education, related services, or accommodations in order to benefit from education. This is a key difference from the IDEA, which is aimed solely at children who require special education in order to be educated successfully.

For example, consider the case of a child with severe asthma. If the child receives medication for the asthma at school, he or she may still have some difficulty at school but is able to function there. However, if the child does not receive the medication at school, he or she can become severely ill and cannot remain at school. The child is thus considered to be disabled and in need of related services (i.e., the administration of the medication). If the services allow the child to participate in school, he or she is eligible for protection under Section 504. Because special education instructional services are not needed to address the asthma problem, the child is not likely to be eligible for the IDEA special education services. (The distinctions surrounding eligibility, including the impact of medication and other mitigating measures on application of Section 504, will be discussed in greater detail in Chapter 11.)

Once it is determined that children meet the criteria for the disability protections of Section 504, they must be protected from discrimination based on that disability. In order to assure access to an appropriate opportunity for education, the Section 504 regulations provide that the child is entitled to receive a “free appropriate public education,” similar to that required by the IDEA, though the terms are not interpreted entirely the same way under the two laws. This education may include the special education and related services that are needed for the child to benefit from education. Many people mistakenly assume that Section 504 provides only accommodations that can be delivered in regular education, whereas special education services are available only through the IDEA. While this assumption accurately describes how many schools operate, it does not accurately reflect the Section 504 regulatory mandate for provision of a FAPE.

However, in contrast to IDEA, the Section 504 regulations neither spell out the procedures for development of a Section 504 plan nor spell out the content or structure of the plan. In addition, in most areas, there is no Section 504 bureaucracy comparable to the one established under the IDEA. Depending on the circumstances, this can be a good or bad thing, but it generally means that services are more likely to be delivered by regular education staff, as opposed to special education staff.

Like the IDEA, Section 504 also requires that services be delivered in the least restrictive environment appropriate for the child. Further, Section 504 provides that those children who are not primarily based in regular classroom settings should still be mainstreamed to the maximum extent appropriate. The Section 504 regulations also provide that children must be reevaluated before schools decide whether to place them in special education settings or ...

Table of contents

• Cover
• Praise
• Of Related Interest
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• Introduction
• Chapter 1 An Overview of Legal Protections for Children with Disabilities
• Chapter 2 Eligibility
• Chapter 3 The Evaluation and Reevaluation Process
• Chapter 4 Free Appropriate Public Education and the IEP Process
• Chapter 5 Special Education and Related Services
• Chapter 6 Least Restrictive Environment
• Chapter 7 Private Placement
• Chapter 8 Behavior Management and Discipline
• Chapter 9 Special Issues Concerning Transition and Graduation
• Chapter 10 Procedural Safeguards, Mediation, and Due Process
• Chapter 11 A Comparison of the IDEA and Section 504
• Chapter 12 The Psychology and Politics of Special Education: A Context
• Chapter 13 How Laws Work: Who Has Trump?
• Chapter 14 Conclusion
• Notes
• Appendix A:Important Web Sites
• Appendix B:Acronyms Commonly Used in Special Education
• Appendix C:Sample Letters
• Index