Wednesday, July 7, 2010

So Misunderstood: Category of Disability - Part II

Sign for "Colored waiting room", Geo...Image via Wikipedia

Last week we ran the first post in this series. There we discussed that one of the few clear rules of law in special education is that the category of disability for a child is irrelevant for all purposes other than eligibility. Particularly offensive is the use of the category of disability to determine services. This type of stereotyping is the false assumption underlying most types of discrimination.

In the next two posts, we're going to look at some of the caselaw supporting this proposition.

In Re Student With a Disability 108 LRP 25080 (SEA WV 11/12/7) One of the fundamental concepts of the IDEA is that each child with a disability should receive an IEP that is individualized to his individual needs. The IDEA does not concern itself with labels but whether a student with a disability is receiving a free and appropriate public education. A disabled child's IEP must be tailored to the unique needs of that particular child. The child's identified needs, not the child's disability category, determine the services that must be provided to the child; In re Student with a Disability 108 LRP 26467 (SEA WV 12/19/7) The category of eligibility is not relevant once a student is determined eligible; services are determined by the individual needs of the student and not her categories of eligibility; In Re Student With A Disability 52 IDELR 239 (SEA WV 4/8/9) (same);

Pohorecki v. Anthony Wayne Local Sch Dist 637 F.Supp.2d 547, 53 IDELR 22 (N.D. Ohio 7/23/9) Court held that IDEA does not require that children be classified by disability. IDEA requires that a child who needs special education and related services receives an appropriate education. Court specifically rejected an alleged denial of FAPE based upon refusal to add another category of eligibility.

Seladoki v. Bellaire Local Sch Dist Bd of Educ 53 IDELR 153 (S.D. Ohio 8/28/9) Court ruled that choice of methodology by school district must be based upon the individual needs of a student. Court rejected parent’s argument that all children with autism require 30-40 hours per week of ABA services.

Anoka-Hennepin Indep Sch Dist 50 IDELR 147 (SEA Minn 4/28/8) District provided FAPE where its IEP met the child’s needs; fact that child not found eligible in a particular category that parent wanted is not relevant because services are not to be determined on a categorical basis.

Letter To Brumbaugh 108 LRP 33562 (OSEP 1/15/8) IEP services must be based upon the student’s unique needs and not his disability category.
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  1. Great blog! I wanted to comment that sometimes the use of the disability category does "legitimately" go beyond eligibility.

    Here in Massachusetts, we have a law that requires an IEP Team to consider certain specific needs of students categorized under autism. This requirement is, of course, a far cry from basing services on the disability category. But it does give parents an incentive to want their child categorized with autism.

    Referring to the parent you described in your "Part I" on this topic who insisted on the additional autism label, this is something our state's Dept. of Elementary and Secondary Ed. actually encourages; students whose primary disability is something other than autism but who have a Pervasive Development Disorder diagnosis, have such noted on their IEP.

  2. Anon,

    Good point about state law variances. Always check with a lawyer licensed in your state and familiar with your state and federal special ed law.

    In the Massachusetts example, why didn't the legislature just make the additional services available when then child ne3eds them rather than when the child has a certain category of disability? This seems to invite disputes as a matter of public policy!



  3. Jim - thanks for this blog. Do you think this issue might be because a students needs could be considered somewhat subjective (there could be disagreement between members of an IEP team - parent thoughts versus a schools thoughts about need for example) but a disability category is hopefully found based on testing?

  4. Anon-

    Needs can be subjective- although needs must be defined in light of the Rowley holding as what a child needs in order to receive some academic benefit.

    An autism program, or a mentally impaired program, though is one size fits all. This hardly constitutes individualized education.

    Thanks for your kind words.

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  6. Thank you for your two blog posts on this issue, which is almost universally misunderstood and utterly resistant to corrective wisdom.

    I have recently encountered some interesting twists--not related to special education services--on the eligibility category issue. Apparently, some services for adults with developmental disabilities are available only to those who were eligible for special education under the ID (MR) category. For this reason, teachers of students with moderate-severe disabilities feel significant pressure to frame the evaluation data so it fits the state eligibility for DD services. I heard a similar story recently from an attorney who represents young adults with disabilities in their pursuit of social security disability. And, of course, there is the perennial concern of some parents that their high school child be identified with LD so they can get accommodations for ACT, SAT, and college classes.

    I have little sympathy with parents who seek disability labels as a presumed performance enhancement strategy. However, it seems perfectly appropriate for an evaluation-eligibility team, given more the possibility of more than one eligibility category, legitimate under state criteria, to focus on the one that will permit access to adult services. But I wonder why adult service agencies would rely on special education evaluation procedures and eligibility categories?

  7. Thanks Mary Anne,

    Interesting comment. I wasn't aware of this dynamic. An apparent shortcut.