The Law

All Children Can Learn

Understanding The Two Special Education Laws

The Individuals with Disabilities Education Act (IDEA)

Some years ago, millions of children with disabilities still received little and sometimes no education. Many were confined to their homes. Congressed passed the Individuals with Disabilities Act in 1972. The purpose of this law is to ensure every child with special needs receives a free, appropriate, public education, or FAPE.

The Individuals with Disabilities Act, or IDEA, is a comprehensive law. The thought of reading law can be intimidating. But parents should not be shy about going to the law and looking up those important parts that refer to their parental rights and procedural safeguards. It is not that hard if you concentrate on those sections you need to understand in order to be an informed participant in your child's education. You can find the law at your state department of education's website, at your state's Parent Training and Information Center, at your local school administrative offices, at your library, and online. A good source is at wrightslaw.com. Subsection D is the section of most concern for parents, dealing with evaluations and IEPs. At this site, it is reformatted to be reader friendly and is only 12 pages in length.

An overview of what we have learned with IDEA

The Individuals with Disabilities Education Act, or IDEA, was reauthorized in 2004. Much had been learned during the first 30 years of the Act. Especially troubling was the conclusion that separating children with disabilities from their nondisabled peers did not have the expected outcome. The expectation was that children would make substantial progress if they were in a more restrictive setting. The assumption was that as the children caught up to their peers they could be reintegrated into the regular education setting. Unfortunately, that did not happen in the great majority of cases.

What is the Least Restrictive Environment?

The law is now based upon the fundamental principle that children learn best when placed with their nondisabled peers "to the maximum extent possible" and still meet individual needs. Since more special education monies can now be directed to the regular classroom setting, parents should expect and then monitor the provision of services in the least restrictive setting where their child can still be successful.

Studies revealed that children with special needs made better progress when they were more included with their nondisabled peers. Three areas of dramatic improvement are often communication, language, and social skills. Children need other children who can model these skills for them on a daily basis, both at work and at play. Now, the U.S. Department of Education is requiring that schools find ways to include children with disabilities with their nondisabled peers to the maximum extent possible and in a way that still meets the student's individual needs. However, parents must still remain alert as isolation, especially when there are disability related behaviors, is still happening in some places.

That is not to say that a child with a disability may not need assistance, eve intensive one- on- one instruction,/ assistance , and other special services and supports. But schools must first consider and document efforts to keep a child in the least restrictive setting, with necessary supports and services delivered in that setting. They must be able to demonstrate that even with substantial support and services delivered in that setting the child does not make meaningful progress. Then they are required to provide a continuum of placements for consideration.

A "self-contained" classroom should be a last consideration in the school setting. It is considered a very restrictive setting.

Least Restrictive Environment requires teamwork.

In an inclusive setting, no teacher can be an island unto himself or herself. There must be partnering between the special ed teacher, the regular ed teacher, therapists, administrative staff and parents. This setting can only succeed if the teachers have the expertise and necessary tools, administrative support, and great team communication. Parents should feel free to ask about their child's instructors' credentials and experience. They should also ask for an administrator who will act as a troubleshooter, available to both teachers and parents, if problems arise.

Monies for Teacher Training

Your child's teacher has the right, as well as funding, from both the federal government and your state for continuing education in the area of least restrictive environment or LRE. Don't be afraid to ask for more training for staff, if you feel there is a need, as demonstrated by their performance and your child's past success. Your district has an obligation to provide such training on a regular basis so that teachers have the expertise to partner with special education and teach in new ways. Ask how long the workshop or seminar lasted, and the qualifications of the persons who led that instruction.

Parents should have on hand their state's regulations for special education. If they are not parent friendly, ie if they just refer to numbers in the federal regulations, you can find it all spelled out in the federal regs, as states must met at least the minimum requirements of the federal regulations . Your state should have its regulations at its special education website. Wrightslaw is a great site to find both the federal law and helpful articles when you are ready for that step.

Parent Participation

	Parents are to participate in any and all meetings where educational decisions are made for their child.
	Districts must show a documented good faith effort to notify parents of meetings and to encourage their participation by sending them a Notice of Meeting. Do not confuse this notice with the Prior Written Notice, which is all important to parents.
	Parents are presented with after the meeting. Prior Notice must detail in writing all the recommendations made by any member of the team, and whether each one was accepted or rejected. If rejected, a reason must be given. Prior Notice may be your most powerful tool. Be sure to familiarize yourself with this document and my sample at Prior Written Notice
	Meetings must be at a time and place convenient for both parent and school.
	A district should be able to produce a list of its present continuum of placement settings. Districts can no longer offer only the regular classroom without supports and services or one catchall classroom for everyone who cannot manage that setting. The law requires a full continuum of placements for consideration.

504 of the Rehabilitation Act

504 of the Rehabilitation Act is a civil rights education law administered by the Office for Civil Rights. This law covers any type of discrimination. It is important to note that this law also states that anyone who receives any federal funds cannot discriminate against a person who has a disability.

While the term disability is preferred to the word handicap, the law was written in the seventies and actually contains the term "handicap".

Click here to see the results of our family's class action 504 complaint. We are proud of our state of New Mexico for being a leader in establishing fair, formal procedures for the graduation of our children with special needs.

Requirements of 504 that you should know:

	That handicapped persons, regardless of the nature or severity of their handicap, be provided a free appropriate public education.
	That handicapped students be educated with nonhandicapped students to the maximum extent appropriate to their needs.
	That educational agencies undertake to identify and locate all underserved handicapped children.
	That evaluation procedures be improved in order to avoid the inappropriate education that results from the misclassification of students.
	That procedural safeguards be established to enable parents and guardians to influence decisions regarding the evaluation and placement of their children.
	The 504 law says: "These requirements are designed to ensure that no handicapped child is excluded from school on the basis of handicap and, if a recipient demonstrates that placement in a regular educational setting cannot be achieved satisfactorily, that the student is provided with adequate alternative services suited to the student's needs without additional cost to the student's parents or guardian."
	Therefore, if a district cannot meet the needs of a child within its district and requires an alternative education, the school district is responsible for paying for that education. (In practice, this often requires an attorney's assistance.)
	"Handicapped person" means any person who has a physical or mental impairment which substantially limits one or more "major life activities", has a record of such an impairment, or is regarded as having such an impairment.
	"Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. "Learning" is a keyword here for many children, particularly those with invisible conditions such as learning disabilities or Attention Deficit Hyperactivity Disorder. Accommodations can be requested for a child with a disability that negatively impacts his or her education.
	Accommodations might include shortened assignments, note takers, preferential seating, oral or alternative testing, regular use of a computer, use of a calculator, etc. 504 requires the district to provide an individualized program "designed to provide educational benefit".
	While an IEP does not have to be written for a child with a 504 plan, a school has the option of writing one, so that everyone knows what is required to help this child be successful. A formal, written 504 plan can also afford protection for behaviors that are related to the disability through the thoughtful development of a positive behavior plan and possibly an alternative discipline plan. 504 is often sufficient to enable a child to receive the accommodations and modifications needed for academic success.
	If a child's disability impacts him/her seriously enough to require special services, such as special education teachers, therapists, or a dramatic divergence from the regular education program, then the child may fall under the protection of the Individuals with Disabilities Education Act, or IDEA. To qualify, a child must be referred for an educational evaluation by a multidisciplinary team, meaning several people with expertise in different areas. Such an evaluation must always be conducted by more than one person and with more than one test.
	While services could be received under a formal 504 plan, it is an unfunded mandate. Districts are more likely to cover the child under IDEA if the child is qualified, and they can then receive funding for those services.

Importance differences

IDEA is known as a substantive law while 504 is a procedural law. 504 says that any child with a disability is entitled to access the same activities or educational settings as his or her nondisabled peers. That law does not go into quality of education, teachers, specific remediation, etc. IDEA addresses the specific education needs and goals of the child. 504 looks at whether districts followed required procedures when determining placement. 504 requirements address such questions as to whether there were appropriate evaluations in all areas of suspected disability, whether you were fully informed of your parents' rights, whether the IEP team carefully considered information from a number of sources, whether a complete and accurate record was kept of the meeting, whether or not the IEP was followed as written, as well as other required procedures.

Think of it this way:

You bake a cake and it really flops (like a bad IEP meeting). Did you follow the recipe correctly? Did you remember the baking soda? Did you stir as directed? Did you preheat the oven? Did you grease the pan with the right amount of shortening? Did you put the timer on for the correct amount of time? Those would be procedural issues. The more substantive issues would be the actual ingredients of the cake and whether they were appropriate for the recipe and desired outcome.

Under both laws, every child is entitled to a free appropriate education, or FAPE. That means the child's education must be "meaningful", in other words not just a token effort. It does not guarantee what progress the child will make; however, it does mean the district must make a good faith effort to see that the child makes meaningful progress. Another interpretation says "appropriate" means "an education comparable to the education provided to students without disabilities". Also, progress must be measurable using accepted instruments of measurement, not only by subjective measurement, i.e. "observation".

An excellent source of articles on IDEA for parents is wrightslaw.com . Pete and Pam Wright have a user friendly site that also includes the actual law that you can download in a pdf file.

Knowledge equals power..

Information at this site is not to be construed as legal advise. Rather it is designed to help parents utilize advocacy strategies that will empower them to be equal participants in the education of their child.