Tuesday, May 3, 2011

Special Education Law 101 - Part II

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A.   The Requirement of  FAPE (free and appropriate public education)

The basic requirement of the IDEA is that states and school districts 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, § 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, § 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, § 602(9).  See also 34 C.F.R. §§ 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, § 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 Bd. of Ed. 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  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 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.

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  1. Mental Retardation is now Intellectual Disability.

  2. I'm in NYS. My child has PDD-NOS, ADHD, Dyslexia and Non Language Learning Disorder -NLLD. I've been advocating to change my son's IEP classification from OHI to Autism. The chair refuses to change it as the school psychologist asserts my son doesn't present as a child with Autism. I assert, that the psychologist is not permitted to decide whether or not my child has Autism as she is not a licensed clinician. In addition, school districts are not allowed to diagnose.
    In addition, my child has NYS medicaid due to his diagnosed disabilities. With that being said, shouldn't the school district acknowledge the diagnosis and change the classification? In addition, the district unilaterally removed PDD-NOS from alerts after I requested the classification change!
    I also have a blog: http://www.arenpddnos.blogspot.com

  3. Barbara,

    Thanks for the correction. Rosa's Law changes the language to intellectual disability. Greta change. Thanks.


  4. Barbara,

    Unless you are in a state where you are entitled to additional services based upon category9eg, a teacher. etc for children labelled autism), the category of disability does not matter after eligibility is decided.

    Services should be based upon individual need not upon the category of disability.

    As always though, I cannot give legasl advice and as an impartial (mediator, hearing officer, state consultant), I never represent or advise school districts or parents.

    Good luck.

  5. As Mr. Gerl explained, in Ohio at least, the state special education system is comprised of disability categories. Each category receives a percentage of additional funding for services; the amount is depend upon the disability or need.

    Admittingly, I am am not familiar with NY's spec ed laws but in Ohio it is the IEP team who make the determination of disability (category); a medical diagnoses is not required.

    Again, I emphasize, in Ohio a student can have a disability yet not deemed qualified for special education. It is the type of news some parents do not want to hear but it is a hard reality they must understand and come to terms with. Also hard to swallow is, if a student can be provided services and accomodations under a lessor category the LEA is within their rights to do so.

    I would like to emphasize that LEA school psychologists are qualified to evaluate children for many disabilities. Unless you can prove the school psychologist incompetent and you request the LEA to perform evaluations it will be that person who will complete the majority of the exams; depending on what disability is suspected. Personally have mixed feelings on this. It's like asking a wolf to guard the hen house. In my opinion, school pyschologist's are placed in very tough situations where the LEA ask them to decide loyalties to the district ( meaning job security) or protect/provide the students.

    Although parents suspicions are correct about LEA's motives or behaviors the burden of proof lie on those making the charges or allegations. Even though certain notices happened to stop around the same time you requested a change, there may be a good explanation why. Keep this in mind: always ask yourself, "how can you prove your allegation aside from it being a coincident?" You must present clear convincing evidence connecting the two together and how it affected your child their education or your right under IDEA.

    Remember: Districts have time on their side, you don't. They can stretch a legal case out to the very moment your child graduates. So what's really important? The diagnoses or your child receive an appropriate education and/or services (accomodations) in order that he/she move forward?

    Trust me, "right" does not always win.