I.D.E.A. :INDIVIDUALS WITH DISABILITIES EDUCATION ACT

Educational Rights of Children with Disabilities.

Legislative History

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The Pre-1975 Years

• Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963 (P.L. 88-164).

• Elementary and Secondary Education Act of 1965 (ESEA), P.L. 89-10 - Intended to strengthen and improve educational quality and opportunity.

• Elementary and Secondary Education Act Amendments of 1966, P.L. 89-750 (Title IV) - Federal grant program established to fund local school level education of disabled children.
  • Established the Bureau of Education for the Handicapped (BEH) - purpose: administration of Office of Education programs for disabled children.
  • Established the National Advisory Council (NAC), now known as the National Council on Disability.
• The Architectural Barriers Act of 1968 ,PL 90-480; 42 USC 4151, requires all buildings constructed, altered or financed by the federal government after 1969 to be accessible and usable by persons with physical disabilities.
• Elementary and Secondary Education Act Amendments of 1968, P.L. 90-247- Established "discretionary" programs that enhanced and promoted the enlargement and betterment of special education services; this included funding for such services as regional resource centers, research in special education, improvement of personnel recruitment and information dissemination, and services for the deaf-blind.

• Mills v. Board of Education 1972 (348 F.Supp.866)- A class action suit brought by the parents/guardians of seven disabled students in the District of Columbia against the Board of Education that caused a court order on behalf of all disabled children in D.C. who were currently denied free public education. The order stated that D.C. was required to provide a publicly supported education to all children regardless of the level their disability. The Court recognized the need for equal opportunity in education, and noted that a lack of funds is no excuse for school divisions not providing services.

• Section 504: Non-Discrimination in Programs or Activities Receiving Federal Financial Assistance - This section provides basic civil rights protections to disabled persons with regard to federally funded programs and activities, stating "no otherwise qualified disabled individual in the United States. . .shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." Section 504 covers exclusively those disabled individuals who would otherwise qualify for participation and benefits in federally funded programs and activities.

  • To be eligible for these protections the definitions of disability must be met: "Any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."
  • Major life activities include:
    • breathing
    • seeing
    • hearing
    • learning, walking
    • self-care
    • performance of manual tasks.
  • Section 504 applies to Preschool, Elementary, Secondary, Postsecondary, and Vocational levels, as well as other types of activities and programs that are federally funded (see 34 CFR part 104.) 504 prohibits discrimination of disabled children in federally funded educational institutions; continued discrimination results in loss of federal funding.
  • Section 505: Non-Discrimination in Programs or Activities Conducted by Federal Agencies (In 1978, this provision was added by Public Law 95-602.)

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• The Family Education Rights and Privacy Act (FERPA) of 1974 , P.L. 93-380 - Often called the Buckley Amendment, caused changes to Title VI of the ESEA, renamed as the Education of the Handicapped Act Amendments of 1974. This law gives parents of students under 18, and students 18 and over, the right to examine records kept in the student's personal file. FERPA covered all students, including those in post-secondary education.
  This law mandated the establishment by states of a timetable for the achievement of complete opportunity for education of disabled children.
  Mandate that there were to be certain procedural safeguards that would be used to identify, evaluate, and place disabled children.
  Integration into regular classrooms was to be the goal whenever possible.
  Nondiscriminatory testing and materials for evaluation be chosen and administered.

  also:

  • Parents and eligible students have the right to inspect/review the student's educational records.
  • Written permisssion must be given by a parent or eligible student before releasing any information from a student's records. Disclosure by a school to other school officials, transferring schools, certain govt. officials, or state and local authorities, but the school must keep track in the student files of such requests. This information may be inspected by the parent or eligible student.
  • Parents and eligible students have the right to have the records explained and interpreted by school officials.
  • School officials may not destroy any education records if there is an outstanding request to inspect and review them.
  • Parents and eligible students who believe that information in the education records is inaccurate or misleading may request that the records be amended. The parent or eligible student must be advised if the school decides that the records should not be amended, and has the right to a hearing.
  • Annual notice to inform parents or eligible students age 18 or over must be provided by each school district to each student in attendance to inform them of their rights under the law, as well as their rights to file a complaint with the U.S. Dept. of Education.

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1975-1989

• Education for All Handicapped Children Act of 1975 - P.L. 94-142 This law, and its subsequent amendments, helps to form the current core of protection against discrimination; it also helps support current guarantees of equal education opportunity for individuals with disabilities. The law went into effect in October 1977 after regulation finalization. The law resulted from two earlier acts, P.L. 91-230 and P.L. 93-380. The major functions of the new law follow:
  F.A.P.E. (free appropriate public education) and all related services (including special education) to qualified disabled children.

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  Protection of the rights of disabled children and their parents/guardians in regards to provision of special education and related services (due process in decision making, fairness, appropriateness).

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  Evaluation and protection of the effectiveness at all government levels of special education.

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  Provision of financial assistance (federal funding) to local and state governments in their efforts to provide full educational opportunities to disabled children.

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• Education of the Handicapped Act Amendments of 1983 - P.L. 98-199 - Provided expansion of incentives for preschool special education programs, early intervention, transition programs. Shifted responsibility of EHA programs to OSEP (Office of Special Education Programs) which had replaced BEH (Bureau of Education for the Handicapped).

In particular that law states that those individuals who are members of specific populations (including individuals with disabilities) shall be provided equal access to vocational education recruitment, enrollment, and placement activities. The law also states that the full range of vocational education programs will be provided to these individuals, and includes occupationally specific sourses of study, apprenticeship programs, cooperative education, and comprehensive guidance and counseling services (to the full extent practical). The law provides coordination of vocational education planning among public agencies, including special educaiton, vocational education, and state vocational rehabilitation agencies. The law also provides that such planning and provision be monitored to ensure consistancy with stated IEP objectives.

• The Handicapped Children's Protection Act of 1986 P.L. 99-372 - The purpose of this law was "to amend the Education of the Handicapped Act to authorize the award of reasonable attorneys' fees to certain prevailing parties, to clarify the effect of the Education of the Handicapped Act on rights, procedures, and remedies under the other laws relating to the prohibition of discrimination, and for other purposes." Public Law 99-372:
  • Parents/guardians who prevail in administrative hearings or in court when there is a dispute with a school system regarding their child's right to FAPE and related services will be provided with reasonable attorney's fees and costs.
  • Applicable to all cases commencing after July 3, 1984.
  • Requested a study on the impact of the law by the General Accounting Office, with findings submitted to Congress regarding the number of complaints, who the prevailing parties were, amounts of attorneys' fees, etc. The study was completed in 1989, and a copy of the findings may be obtained from the U.S. General Accounting Office, report GAO/HRD-90-22BR.

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  • Temporary Child Care for Handicapped Children and Crisis Nurseries Act of 1986 P.L. 99-401 - Introduced in 1995 as part of an omnibus child care bill, enacted by the 99th Congress in 1986. Later incorporated into the Children's Justice and Assistance Act of 1986 (P.L. 99-401). Again authorized and amended by the Child Abuse, Domestic Violence, Adoption and Family Services Act of 1992 (P.L. 102-295).
    • Funding through competitive grants to states and US territories provides the means to create non-medical respite services (specialiazed temporary child care) for disabled children or those children with chronic and/or terminal illnesses. Also provides the means to develop crisis nursery services for at-risk children. The programs also provide a variety of referral and family support services.

Respite care services are available as a result of a $2 million - 16 state grant by the US Dept. of Health and Human Services awarded in 1988. This law was amended in 1989 by P.L. 101-127 - The Children with Disabilities Temporary Care Reauthorization Act of 1989. (For further information contact ARCH National Resource Center for Crisis Nurseries and Respite Care Services.)

"Assistive technology device" is defined by the Act as "any item, piece of equipment, or product system whether acquired off the shelf, modified or customized that is used to increase, maintain, or improve functional capabilities of individuals with disabilities." "Assistive technology services" are any services that directly assist an individual with a disability to select, acquire, or use an assistive technology device. This includes evaluating the needs of the child, including a functional evaluation in the child's customary environment.

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Title I of P.L. 100-407 provides states with funds to develop a consumer-responsive state system of assistive technology services.

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• Medicaid Early Periodic Screening, Diagnosis, and Treatment Amendments 1989 P.L. 101-238 - requires all states to provide children from birth to 21 years of age who are receiving or are eligible to receive Medicaid with"medically necessary" diagnostic and treatment services of any physical or mental disability identified during screening or assessment provide for substantial funding of Assistive Technology devices and services even if they are not identified in the state's Medicaid plan.

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The Post-1989 Years

• Education of the Handicapped Amendments of 1990 - (P.L. 101-476) - The name of the Education of the Handicapped (EHA) law was changed to the Individuals with Disabilities Education Act (IDEA). Many discretionary programs were expanded, and new programs were created: transition services, services for children with serious emotional disturbance, and Attention Deficit Disorder (ADD) research and information dissemination were instituted. Transition services and assistive technology services were added as definitions of special services to be provided in a disabled child's IEP (individual education program). Related services were expanded to include counseling, rehabilitation, and social work services. The law also expanded rights and services to include to a further extent children with traumatic brain injury and autism.

IDEA provides federal funds to states and localities for the assistance of disabled infants, toddlers, preschoolers, children, and youth with disabilities. In order to stay eligible for funds states must make certain that:

• Provision of a Free Appropriate Public Education (FAPE) is provided to all disabled children and youth regardless of cost
• A complete, individual evaluation and assessment of the particular and unique needs of each disabled child will be the basis of that education.
• Each child or youth found eligible for special education or early intervention services will be provided with an Individual Education Plan (IEP) or an Individualized Family Services Plan (IFSP), that states specifically what types of early intervention services or what types of special education and/or related services each infant, toddler, preschooler, child, or youth will be provided with.
• Each child/youth will, to the greatest extent possible/appropriate, be educated in the regular education environment.
• Necessary related services for children/youth receiving special education will be provided. Related services include:

  ..transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training (C.F.R.: Title 34; Education; Part 300.16, 1993).

• Parental/guardian rights to participate in every decision related to identification, evaluation, and placement of their disabled child/youth will be respected.
• Parental/guardian consent for initial evaluation, assessment, placement has and must be given; notification of any change in placement that may occur must be provided; parents must be included, as well as teachers, in any conferences and meetings held to design IEPs; parents must approve such plans before they are put into place.
• Parental/guardian rights to appeal and/or challenge any decision regarding identification, evaluation, placement, or any issue regarding the provision of FAPE, of their child are fully protected by clear due-process procedures.
• Parents/ guardians have the right to confidentiality of information; This means that parental/guardian written permission must be obtained before a child's records may been shown to anyone, except for school personnel with legitimate educational reasons.
• The Television Decoder Circuitry Act of 1990 (P.L. 101-431) requires closed caption decoders to be part of all televisions with screens 13 inches and larger.

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• Carl D. Perkins Vocational and Applied Technology Education Act (1991-P.L. 101-392) and (1992-P.L. 102-103) - Congress amends and renames P.L. 98-524 (Perkins Act) .Purpose: make the U.S. more competitive in world economy by more fully developing academic and occupational skills of all population segments. Improved educational programs leading to academic/occupational skill competancies necessary for work in technologically advanced societies are the focus of funding and resources. The term "special populations" is expanded by this law to include disabled individuals, economically and educationally disadvantaged individuals (including foster children), those with limited English proficiency, individuals participating in sex-bias elimination programs, and persons in correctional institutions.

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• Americans with Disabilities Act of 1990 (P.L. 101-336) - The main purpose of this act was to extend civil rights protections to individuals with disabilities, similar to those provided on the basis of race, sex, national origin, and religion. ADA is based on the concepts of the Rehabilitation Act of 1973, and guarantees equal opportunity for disabled individuals in employment, public accommodation, transportation, state and local government services, and telecommunications. The ADA is the most significant federal law ensuring the full civil rights of all individuals with disabilities.

Title II of the ADA prohibites discrimination on the basis of disability at the state and local levels. Title II is enforced by OCR. (For Title II regulations see 28 CFR 35.)

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• Civil Rights Act of 1991 (Pub. L. 102-166) (CRA) - provided for compensatory and punative damages in cases of intentional discrimination on the basis of disability.

• Rehabilitation Act Amendments of 1992 - P.L. 102-569 - provides assessments for transition planning to assisted disabled young people.

• Technology-Related Assistance for Individuals with Disabilities Act Amendments (Tech Act Amendments) 1994 P.L. 103-218 - these amendments strengthen the original Tech Act passed in 1988 by emphasizing systems change and advocacy. This reauthorization extends congressional support of the Tech Act (P.L. 100-407) through 1998. The amendments require states to perform six specific systems change and advocacy activities, as well as to provide a specific amount of their Title I funds to a protection and advocacy agency.

• School-to-Work Opportunities Act 2000 (1994)- an umbrella concept for initiatives such as tech prep, youth apprenticeship, career academies, and the like.

• Developmental Disabilities Assistance and Bill of Rights Act of 1994 (P.L. 103-230) - Amended P.L. 100-146, The Developmental Disabilities and Bill of Rights Act Amendments of 1987. A key provision of these amendments was the definition of "developmental disability", which means:

...a severe, chronic disability of an individual 5 years of age or older that: (a) is attributable to a mental or physical impairment or combination of mental and physical impairments; (b) is manifested before the person attains age 22; (c) is likely to continue indefinitely; (d) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) receptive and expressive language; (iii) learning; (iv) mobility; (v) self-direction; (vi) capacity for independent living; and (vii) economic sufficiency; and (e) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, supports, or other assistance that is of lifelong or extended duration and is individually planned and coordinated.

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In particular this definition helps to define eligibility for the grants to support Councils in the states whose primary functions are promoting, by means of systemic change, advocacy activities, development of consumer and family-centered, inclusive systems as well as a cohesive set of services, supports, and other assistance. The prime function of these is to achieve independance, productivity, and integration/inclusion into the community.

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Specific mention is made to an exception of the age limitation for persons with developmental disabilities (inclusive from birth through age 5), particularly individuals with specific congenital or acquired conditions for whom delay in services may result in developmental disabilities, or those with substantial developmental delays. � In order for projects, activities and programs to receive assistance, certain principles must be adhered to:

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(1) Appropriate support must be given to individuals with developmental disabilities, including the most severe cases, to ensure the achievement of independence, productivity, and integration/inclusion into the community.

(2) These individuals and their families are the primary decisionmakers in regards to the types of services and supports to be accepted.

(3) Services, supports, etc. must be provided in a fashion that demonstrates respect for personal dignity, preference, and cultural differences.

• IDEA Amendments of 1995 - Major issues addressed include:
  • Align IDEA with state and local education improvement efforts so that students with disabilities can benefit from them.
  • Improve results for students with disabilities through higher expectations and access to the general curriculum .
  • Address individual needs in the least restrictive environment for the student (LRE).
  • Provide families and teachers with the knowledge and training to effectively support students' learning.
  • Strengthen early intervention to help ensure that every child starts school ready to learn .
  • Proposal to improve notice requirements.

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• Developmental Disabilities Assistance and Bill of Rights Act Amendment of 1996 - P.L. 104-183
• 1996 ? Child Abuse Prevention and Treatment Act (CAPTA) (Public Law 104-235) supports state efforts to develop, operate, expand and enhance a network of community-based, prevention-focused, family resource and support programs which would be equipped to address, among other things, the additional family support needs of families with children with disabilities.
• IDEA Amendments of 1997 (Public Law 105-17) Final IDEA '97 Regulations were released on Friday, March 12, 1999 (20 U.S.C. 1400 et seq.)- Major issues addressed include:
  • IEPs and general curriculum : (statement of measurable goals, special education, related services, and supplementary aids and services, program modifications, supports for assistive school personnel, and participation in extra-curricular and non-academic activities).
  • General state and district wide assessments: (disabled students must be included in state and district assessment programs whenever possible.
  • Assessment results of such children must be made available to the public in the same detail and frequency as those of non-disabled students).
  • Prior to 1997, the law did not include a regular education teacher as a required member of the Individualized Education Program team. Under the 1997 IDEA amendments, the IEP team for each child with a disability now must include at least one of the child's regular education teachers, if the child is, or may be, participating in the regular education environment. The new law also indicates that the regular education teacher, to the extent appropriate, participates in the development, review and revision of the IEP of the child.
  • Graduation with a regular diploma: Graduation from high school with a regular diploma is considered a change in placement requiring written prior notice; A student's right to FAPE is terminated upon graduation with a regular high school diploma (The statutory requirement for reevaluation before a change in a student's eligibility does not apply.); and, A student's right to FAPE is not terminated by any other kind of graduation certificate or diploma.
  • Discipline: Schools do not need to provide services during the first ten school days in a school year that a child is removed. During any subsequent removal that is for ten school days or less, schools provide services to the extent determined necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals of his or her IEP. � During any long-term removal for behavior that is not a manifestation of disability, schools provide services to the extent determined necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals of his or her IEP. In cases involving removals for behavior that is not a manifestation of the child's disability, the child's IEP team makes the service determination.
  • Conducting Behavioral Assessments & Developing Behavioral Interventions: only required when the child has first been removed from his or her current placement for more than ten school days in a school year and when commencing a removal that constitutes a change in placement.
  • Manifestation determinations are only required if a school is implementing a removal that constitutes a change of placement.
  • Change of Placement:
    The final regulations clarify that a change of placement occurs if a child is removed for more than ten consecutive school days or is subjected to a series of removals that constitute a pattern because they cumulate to more than ten school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.
  • Removals of Up to Ten School Days at a Time:
    The final regulations clarify that school personnel may remove a child with a disability for up to ten school days and for additional removals of up to ten school days for separate acts of misconduct as long as the removals do not constitute a pattern.
  • ADD and ADHD have been listed as conditions that could render a child eligible under the "other health impaired"(OHI) category of Part B of IDEA; and the term "limited strength, vitality, or alertness" in the definition of "OHI", when applied to children with ADD and ADHD, includes a child's heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment.
    
  • Developmental Delay: A State that adopts the term developmental delay determines whether it applies to children ages 3 through 9, or to a subset of that age range (e.g., ages 3 through 5); If an LEA uses the term developmental delay, the LEA must conform to both the State's definition of that term and to the age range that has been adopted by the State; If the State does not adopt the term developmental delay, an LEA may not independently use that term as a basis for establishing a child's eligibility under Part B of IDEA; and, Any State or LEA that elects to use the term developmental delay for children aged 3 through 9 may also use one or more of the disability categories for any child within that age range if it is determined, through the evaluation under Part B of IDEA, that the child has an impairment under Part B of IDEA, and because of that impairment needs special education and related services.
  • Definitions of Day and School Day.
  • Charter school regulations regarding IDEA.
  • Parentally - placed children with disabilities in private schools: Prior to 1997, the law did not extensively address the education of children with disabilities placed in private schools by their parents. These children were served based on the limited provisions of the statutes and on the Education Department's General Administrative Regulations (EDGAR) and the Department's long-standing policy interpretation. Clarifications include:
  • The term "service plan" has been adopted for use in lieu of "IEP" for parentally-placed children in private schools;
  • Part B services must be provided in accordance with a "service plan" that, to the extent appropriate, meets specified IEP requirements;
  • Child find activities for private school children with disabilities must be comparable to that in the public schools;
  • Public agencies must consult with representatives of parentally-placed private school children with disabilities on how to conduct child find activities for those children in a manner that is comparable to that for public school children;
  • Each LEA must consult with representatives of private school children with disabilities to decide how to conduct the annual count of the number of those children;
  • The costs of child find activities for private school children with disabilities may not be considered in determining whether the LEA met the minimum expenditure requirements; and,
  • The due process procedures under Part B apply to child find activities for private school children with disabilities, including evaluations, but do not apply to the other provisions regarding children with disabilities enrolled by their parents in private schools.

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  • IDEA Amendments of 1997 (Part C)- (34 C.F.R.Part 303 et seq.)- Early Intervention Program for Infants and Toddlers with Disabilities
    
    
• Assistive Technology Act of 1998 S.2432 - repealed the Technology-Related Assistance for Individuals With Disabilities Act of 1988 (29 U.S.C. 2201 et seq.), changing the name to the Assistive Technology Act of 1998. The act was intended to " increase the probability that individuals with disabilities of all ages will, to the extent appropriate, be able to secure and maintain possession of assistive technology devices as such individuals make the transition between services offered by human service agencies or between settings of daily living, . . . in order to empower individuals with disabilities to achieve greater independence, productivity, and integration and inclusion within the community and the workforce. "
  • Provision of financial assistance to States to undertake activities that result in mainenance and strengthening of a permanent comprehensive statewide program of technology-related assistance. Designed to increase the availability of, funding for, access to, and provision of, assistive technology devices and assistive technology services for individuals with disabilities of all ages.
  • Promote outreach to underrepresented populations and rural populations, increase and promote coordination between State and local agencies and private entities (such as managed care providers) who may carry out activities associated with this Act. The act is also intended to increase the capacity of public agencies and private entities to provide and pay for assistive technology devices and assistive technology services on a statewide basis for individuals with disabilities of all ages.
  • Increase the probability that individuals with disabilities of all ages will, to the extent appropriate, be able to secure and maintain possession of assistive technology devices as such individuals make the transition between services offered by human service agencies or between settings of daily living,.
  • Enhancement of the ability of the Federal Government to provide States with financial assistance that supports-- (i) information and public awareness programs relating to the provision of assistive technology devices and assistive technology services; (ii) improved interagency and public-private coordination, iii) technical assistance and training in the provision or use of assistive technology devices and assistive technology services; and (B) fund national, regional, State, and local targeted initiatives that promote understanding of and access to assistive technology devices and assistive technology services for targeted individuals.

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• Rehabilitation Act Amendments of 1998 - P.L. 105-220