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Understanding Special Education Law 

Understanding Special Education Law
Understanding Special Education Law

Linda Wilmshurst

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Subscriber: null; date: 21 September 2017

The Education for All Handicapped Children Act (EHA) began in 1975 with the passage of Public Law 94-142 that provided federally funded programs and services for children with disabilities 3 to 21 years of age. In 1990, the name changed to the Individuals with Disabilities Education Act (IDEA). The most recent version of IDEA, signed into law in (p. 577) December 2004, became effective as of July 1, 2005. The US Department of Education (DOE) has responsibility for overseeing public school compliance with laws pertaining to issues of civil liberties (Americans with Disabilities Act Amendments Act of 2008, Section 504) and educational rights (IDEA, 2004). The Rehabilitation Act and IDEA (2004) are available on the DOE Web site, under the Department of Rehabilitation and Special Services (

Americans with Disabilities Act Amendments Act (2008) and Section 504

ADAAA and Section 504 include civil rights laws that prohibit discrimination against individuals with disabilities. Under ADAAA, accommodations for public access and employment, such as access ramps and TTY text telephone, enable individuals to perform major life activities (performing manual tasks, seeing, hearing, speaking, breathing, learning, working, reading, and concentrating) and essential job functions (Wilmshurst, 2011). Students employed in community jobs are also covered under ADAAA.

Section 504 protects the rights of individuals with disabilities enrolled in programs and activities funded by the US Department of Education and ensures “free appropriate public education” (FAPE) for each student with a disability and educational opportunities equivalent to their nondisabled peers. Accommodations to the education program (a so-called 504 Plan) are developed by the school’s 504 team (relevant school personnel, parent, and child). The 504 team reviews all available information to determine whether the child qualifies for assistance (Wilmshurst & Brue, 2010, p. 247). While any student who qualifies for special education services would also qualify under Section 504, not all students eligible under Section 504 would qualify for services under IDEA. Accommodations to the child’s program are provided in the regular education class (e.g., FM audio system, note taker, extra time to complete tasks). Parents and guardians must provide permission for any assessments required to determine need, and they must be provided with appropriate information and timely notice of any significant changes planned for a child’s program. If parents do not agree with the identification, evaluation, or placement decisions, the local education agency (LEA) must provide due process hearings.

Civil Rights Laws and IDEA

The government does not provide direct financial funding to implement either of the civil rights laws; however, the state has fiscal responsibility for Section 504. Although schools may not use funds from IDEA to service children under Section 504, IDEA (2004) states that at the discretion of the school district, up to 15% of the funding for regular education can fund direct services or teaching training for students deemed “at risk” of requiring special education services in the future. While the antidiscrimination laws define a disability as any physical or mental impairment that impedes a major life activity, IDEA defines a disability as one of 13 categories that impede a child’s ability to learn. Under IDEA (2004), a child with a disability will only qualify for special education services, if the disability impairs learning.

IDEA 2004

IDEA (2004) governs special education (individualized educational programs [IEPs]) and related services (e.g., speech and language pathology, counseling services, physical and occupational therapy) for children who meet criteria for one of thirteen categories of disabilities: autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, mental retardation, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment, including blindness. IDEA also provides discretionary funds for the state and school district to provide services for children (p. 578) ages 3 through 9 years (or any subset of ages within this minimum and maximum) for children considered at risk who demonstrate developmental delays.

Eligibility procedures, regulations, and services available for children between 3 and 21 years of age are discussed in Part B of IDEA (2001), and Part C for children under 3 years.

IDEA: Part C—The Infants and Toddlers with Disabilities Program (Birth to 2 Years)

IDEA (2004) provides financial funding for early intervention services to develop multidisciplinary and interagency systems to support the identification and evaluation of children with developmental delays or those at risk for potential developmental delay without such services. IDEA defines a developmental delay (Sec. 635) as 35% or more in one of the five developmental areas or 25% or more in two or more of the five developmental areas. The five different developmental areas include cognitive development (learning), physical development (motor skills), speech and language development (communication skills), social/emotional development, and adaptive functioning (Sec. 632).

Evaluations are conducted by a multidisciplinary team to determine a child’s specific needs, at no cost to the parent. Although some services may not be fully funded, usually there is a sliding scale relative to income, or services may fall under Medicaid or other health insurance plans. Programs may be administered by the department of education or the health department.

Under IDEA (Sec. 636), an individualized family services plan (ISFP) will address the evaluation results and recommended services for the child and family, and will be reviewed annually with status reports available at 6-month intervals. Children involved in this program must, by their third birthday, have a plan (IEP or IFSP) implemented. As for the transition from the IFSP to the IEP, the service coordinator has responsibility for scheduling a conference and initiating the transition planning process with the school district.

IDEA 2004: Part B—Special Education Programs and Services for Preschool Children (Age 3 to 5 Years)

According to IDEA (2004), any child who has a disability must be provided with free special education services once he or she turns 3 years of age. Children become eligible for services if they meet three criteria: they have received an individual evaluation (as per the IDEA regulations); they have a disability in one of the thirteen areas, specified by IDEA; and the disability impedes the child’s ability to learn (Wilmshurst & Brue, 2010, p. 236).

Preschool children (3 to 5 years of age) qualify for services, if they demonstrate risk through documentation of significant delays in one of the five developmental areas mentioned previously. As of the latest revision of IDEA (2004), older children (5 to 9 years of age) who demonstrate developmental delays may at the discretion of their local educational agency (LEA) also qualify for special education services, but this is not mandatory.

The possibility of expanding the age criteria for developmental delay under IDEA has met with considerable controversy. Proponents in favor cite the lack of reliability of standardized assessments in the early years, while opponents suggest early diagnosis could lead to overidentification of children eligible for special services (Wilmshurst & Brue, 2010, p. 237).

IDEA 2004: Part B—Special Education Programs and Services for School-Age Children

IDEA (2004) stipulates that every child (3 to 21 years of age) who has an identified disability (one of the thirteen categories mentioned earlier) that interferes with his or her ability to learn is legally entitled to a FAPE in the least restrictive environment (LRE). Identified children qualify to receive special education and related services from their third birthday, until either receipt of their high school diploma or the end of the school year culminating in their twenty-first birthday, whichever comes earlier.

Parents or teachers can request a comprehensive individual evaluation to determine (p. 579) whether their child qualifies for services under IDEA (Section 614), and the school district will conduct the evaluation, with parental consent, at no cost to the parent. The comprehensive evaluation may include individual assessments of intellectual and academic functioning, review of school reports and records, behavioral rating scales completed by parents and teachers, classroom observations, and interviews. Evaluations must take place in the language in which the child has the best proficiency. Under IDEA (2004), once parent permission is obtained, the school district must complete the assessment and convene an eligibility meeting, within 60 days. To qualify for services, the problems in learning must flow from a reason other than lack of appropriate instruction (in reading or mathematics) or limited English proficiency. If a parent refuses to give consent for evaluation, the school district may engage in due process or mediation; however, if a child is deemed eligible for special education services and parents decline, the district will not be considered in violation of the law for not providing FAPE or developing an IEP.

Procedural Safeguards

Parents must be provided with a copy of the procedural safeguards developed by their state educational agency, or school district, outlining the rights of children and their legal guardians. Procedural safeguards must be distributed, at the initial referral for evaluation, upon notification of educational meetings, at the annual IEP meeting, when a complaint is filed, and when a parent requests a copy. Each state has responsibility for producing procedural safeguards that must address issues of notice, consent, records, disciplinary hearings, and due process. Informed parental consent is required before an initial evaluation is conducted, before a child receives special education services, and for any reevaluation conducted while the child is receiving services. If parents do not agree with the evaluation conducted by the school district, they have the right to request an independent evaluation, at the public’s expense. In this case, the school district can either conduct a due process hearing or grant the request. However, the school district may conduct a reevaluation without consent, if parents have failed to respond, despite repeated attempts.

Disciplinary issues are dealt with on a case-by-case basis. A student with a disability may be disciplined in the same manner as nondisabled peers for a period of up to 10 school days, including suspensions or alternative settings. If an alternate placement exceeds 10 days, and the behavior is not deemed a function of the disability, the child may then be disciplined in the same manner as nondisabled peers. If the violation is of a severe nature (causing bodily harm; involving drugs or weapons), the child may remain in an alternate educational setting for up to 45 school days without parental permission or a hearing. Parents have the right to appeal this decision.

Educational records must comply with the Family Educational Rights and Privacy Act of 1974 (FERPA), which ensures the rights of parents and students 18 years of age and older to access educational records and to protect the release of information contained in those records. For more information on procedural safeguards, readers are directed to Section 615 of the law (for children 3 to 21 years of age) or Section 639 (infants and toddlers).

IDEA and Issues in Classification

States differ on how they interpret classification and eligibility requirements under IDEA (2004). This can pose difficulties for children who transfer between states because a child may be eligible for services in one state yet not qualify for services in another state. In addition, a clinical practitioner may diagnose a child based on mental health nomenclature such as the current Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association or the International Classification of Diseases (ICD) of the World Health Organization criteria, but if the disability does not meet educational criteria (e.g., impairs a child’s ability to learn), the child may not qualify for services. Parents often find these discrepancies very frustrating. The problem becomes especially notable for the classification of disabilities that (p. 580) are not based on physical or sensory impairments, such as attention-deficit/hyperactivity disorder (ADHD), intellectual disabilities (formerly mental retardation), specific learning disabilities, and emotional disturbance. MacMillan and Reschly (1998) refer to the classification of these types of disabilities as “judgmental categories” because they rely more on judgment. Although the DSM, ICD, and IDEA represent categorical systems of classification (all or nothing), the systems differ on the nature and extent to which these categories are defined.

According to the DSM and American Association on Intellectual and Developmental Disabilities (AAIID, 2009), an intellectual disability manifests during the developmental period and is represented by an IQ score approximately two standard deviations below the mean (IQ of 70 or below), with accompanying deficits in at least one (AAIID) or two (DSM) areas of adaptive functioning. However, IDEA (2004) does not identify a cutoff score for IQ or specify the number of areas of adaptive functioning deficits required for this category, resulting in inconsistencies across states. In their study of eligibility requirements for intellectual disability across 50 states, Bergeron, Floyd, and Shands (2008) found an “upper cutoff ranging from a low of 69 to a high of 80 for initial evaluations, and a high of 85 for re-evaluations” (p. 130). The authors report that variations existed in “terms used to describe this exceptionality, the criteria used to identify an intellectual deficit, and the scores and criteria used to identify adaptive behavior deficiencies” (p. 131).

While an intellectual disability impacts overall cognitive functioning, an individual with a specific learning disability is likely to have average overall intelligence but encounter academic difficulties in specific areas such as reading (dyslexia), mathematics (dyscalculia), or written expression. IDEA (2004) defines a specific learning disability as “a disorder in one or more of the basic psychological processes” resulting in “an imperfect ability to think speak, read, write, spell or do mathematical calculations” (Federal Register, 2006: 300.8 (10), p. 46757). According to the DSM, a learning disorder is diagnosed when standardized assessments of achievement reveal performance levels substantially below intellectual expectations (discrepancy of more than two standard deviations between achievement and IQ). Up until the last reauthorization of IDEA, this “discrepancy criteria” (a significant difference between IQ and achievement) constituted the cardinal method of identifying a specific learning disability for educational purposes. However, under IDEA (2004) identification procedures (developed by each state) now must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability. Instead, the state must permit the use of a process based on the child’s response to scientific, research-based intervention and may permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability (Federal Register, 300.307 (a), p. 46786). Critics have argued that this “response to intervention” (RTI) alternative is vague, wide open to interpretation, and changes the underlying manner in which learning disabilities have been conceptualized (Kavale, 2005). Proponents of RTI criticize the failure of states to adopt a consistent discrepancy formula (fluctuations from state to state between one and two standard deviations) and suggest the discrepancy criteria represent a failure-based model (Wilmshurst, 2011).

IDEA (2004) defines emotional disturbance as a long-lasting condition causing significant educational impairment that may be characterized by problems affecting the following: learning, relationships with peers and teachers, responding appropriately to normal circumstances, pervasive mood of unhappiness or depression, and tendencies to develop physical symptoms in response to personal problems or problems at school. The category includes schizophrenia, but it excludes children with social maladjustment, unless they also qualify as having an emotional disturbance. This category has met with criticism, since it does not distinguish between internalizing and externalizing disorders.

(p. 581) Prior to IDEA (2004), children with ADHD were able to receive accommodations under Section 504 of the Rehabilitation Act of 1973. Currently, children with ADHD can become eligible under the category of other health impairments, which are defined as “having limited strength, vitality or alertness, including a heightened alertness to environment stimuli, that results in limited alertness with respect to the educational environment” (IDEA, 2004). Other disabilities in the same category include acute health problems such as asthma, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, and rheumatic fever. ADHD must adversely affect education and a child’s ability to learn in order to warrant special education.

References and Readings

American Association on Intellectual and Developmental Disabilities. (2009). Intellectual disability: Definition, classification and systems of support (11th ed.). Washington, DC: Author.Find this resource:

    Bergeron, R., Floyd, R. G., & Shands, E. I. (2008). States’ eligibility guidelines for mental retardation: An update and consideration of part scores and unreliability of IQs. Education and Training in Developmental Disabilities, 43(1), 123–131.Find this resource:

      Kavale, K. A. (2005). Identifying specific learning disability: Is response to intervention the answer. Journal of Learning Disabilities, 38, 553–562.Find this resource:

      MacMillan, D., & Reschly, D. J. (1998). Over-representation of minority students. The case for greater specificity or reconsideration of the variables examined. Journal of Special Education, 19, 239–253.Find this resource:

        Wilmshurst, L., & Brue, A. W. (2010). The complete guide to special education (2nd ed.). San Francisco, CA: Jossey-Bass.Find this resource:

        Wilmshurst, L. (2011). Child and adolescent psychopathology: A casebook (2nd ed.). Thousand Oaks, CA: Sage. (p. 582) Find this resource: