Wednesday, September 5, 2007

Special Education Law 101 - Part I

A recent comment asked what "FAPE" and "IEP" mean. This is a good question. At a recent conference a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.
As a result I decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean.
Special Ed Law 101- Part I
The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.
The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, Section 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
IDEA, Section 602(3)

The IDEA defines “FAPE” as:
special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D) are provided in conformity with the individualized education program required (…hereunder.).
IDEA, Section 602(9). See also 34 C.F.R. Sections 300.101 to 300.113.

The IDEA defines “special education” as:
Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education.
IDEA, Section 602(29).

The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student. The U. S. Court of Appeals for the Second Circuit affirmed. See, Rowley, 102 S.Ct. at 3040.

The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

The Supreme Court noted that the individualized educational program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability. Rowley, supra, 102 S.Ct at 3048. Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

The Supreme Court instructed lower courts (and again by implication, due process hearing officers) that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.

That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."

4 comments:

  1. JIM, FIGHTING FOR DISABLED SON SINCE SEPT.04. HAVE DONE EVERYTHING THAT WE WERE SUPPOSED TO AND MORE. CONSTANTLY, THE SCHOOL,SPEC.ED, AND NOW THE SCHOOL BOARD, HAVE GONE ABOVE AND BEYOND TO COVER UP AND NOW,PERSUE US. THEY HAVE DENIED OUR SON'S FAPE, COMMITTED ATTENDANCE FRAUD, EVEN HAD SOMEONE FILL OUT A FRAUDULENT REPORT CARD WITH PASSING GRADES FOR ALL SUBJECTS AND 1 ABSENCE. OUR ONLY GOAL PREVIOUSLY WAS TO PROVIDE OUR SON WITH A FAPE, UNFORTUNATELY NOW, ITS TO PROTECT OUR FAMILY OF NUMEROUS LIES. THOUGH WE CAN PROVE ALL, WE ARE AT A STAND STILL, NOT KNOWING WHAT TO DO NEXT. AS WE ARE CURRENTLY PROVING OURSELVES IN FAMILY COURT,STILL WITH THE SCHOOL DISTRICT NOT DOING AS THE JUDGE HAS ORDERERED,IT SEEMS THIS WILL CONTINUE AS WE WERE JUST TOLD THAT THE LOCAL SCHOOL DISTRICT IS NOW TRYING TO TAKE AWAY HIS TRANSPORTATION AND THEIR FINANCIAL RESPONSIBILITIES TO HIS NEW SCHOOL.HE IS DISABLED DUE TO SEVERE ALLERGIC ASTHMA AND HAS HAD MANY NEAR-FATAL ATTACKS IN THE LOCAL SD. ON LONG ISLAND,THE CURRENT SCHOOL,IS THE CLOSEST TO SAFE FOR HIM AND HAS WHAT HE NEEDS FOR HIS EDUCATION. HOW CAN A CORRUPT SD GET AWAY WITH DENYING CLASSIFICATION,EDUCATION,SAFETY,"RELATED SERVICES"FOR A DISABLED CHILD? PLEASE HELP SHANNON

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  2. JIM, FORGOT TO TELL YOU 1 IMPORTANT DETAIL! THE NEW SCHOOL THAT MY SON ATTENDS, IS THE FIRST REGULAR ATTENDANCE SINCE 2004, DUE TO HIS DISABILITY. THOUGH WE BROUGHT HIM TO SCHOOL, HIS BODY COULD NOT HANDLE THE INHALED TOXINS IN THE LOCAL SCHOOLS. HE WAS SENT HOME EACH DAY, EACH YEAR, UNTIL NEAR FATAL,WHEN THEY OFFERED HOME INSTRUCTION,WHICH THEY WOULD NOT SUPPLY.AS YOU MAY KNOW, THERE ARE NO SHOOLS, THAT I KNOW OF,FOR SEVERE ASTHMATICS. HE IS NOT HAVING ANY ATTACKS BECAUSE OF HIS NEW SCHOOL.

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  3. My special education child - has been a victium of bulling for the past 3 years. Ten thousand dollars and 1 1/2 years of CSE fighting - I had not other choise to but hire a lawyer . The lawyer recomended we have our child evaluated "outside of the school at our total financial respomsibility" in order to get a true eval. That eval showed our child to PDD NOS On the autism spectrum - which in turn left the district NO OTHER choise then to grant us our original request for an alterntive placement. Now after 3 years of bullying and 9 years of the district misdiagnosis of my child - she is in a alternative placment - We are still in litigation with the district. I want to hold them responsible for the damage they have done to my daughter both emotionally and physically - as she was hit for "refusing to do a bullys homework" We can not give up - Presently I am working with
    Senator Dean Skellos to get an anti bullying law in congress for special ed students - with this law, parents will have a law to site when their child is bullied and will have something to "fight the CSE" - at present - other states have this law - Along with the law should be education for special ed teachers - Special ed children are perfect targets for bullying - much of their bullying goes unreported - schools under report - and the bullying continues at the expense of children that are already given so much in life to compensate for.. ple let me know you thoughts - ple respond to jsmb118@aol.com

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  4. JIM, LEFT 2 PREVIOUS NOTES ON DISABLED SON ON MAY 15,2008. SO NERVOUS, FORGOT TO LEAVE CONTACT INFO. HE IS LEGALLY DISABLED BY SOCIAL SECURITY. PLEASE HELP! P.S. WE DID EXPOSE THE LIES SUBMITTED BY THE WILLIAM-FLOYD SCHOOL DISTRICT TO CPS. THE PETITION AGAINST US WAS WITHDRAWN W/ NO FURTHER ACTIONS. THE WILLIAM-FLOYD SCHOOL DISTRICT WOULD NOT ALLOW A SPECIAL ED CLASSIFICATION OR AN IEP. NOW HE IS SO FAR BEHIND. WHO WILL HOLD THEM ACCOUNTABLE AND EXPOSE WHAT THEY HAVE DONE TO OUR SON AND OUR FAMILY? WE HAVE BEEN TOLD THAT WE WILL NOT BE SAFE, UNTIL THE TRUTH IS EXPOSED! CURRENT RESIDENT, P.O.BOX 596, MASTIC,NY 11950

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