Special Education Law
In 1975, Public Law 94-142, The Education for all Handicapped Children Act was signed into law to insure that the educational rights of children with special needs were protected and that their education was provided in a way that met their needs in the same classrooms and schools in which their peers were educated to the maximum extent appropriate. In 1990 this act was amended and renamed the Individuals with Disabilities Education ACT or IDEA. The IDEA has been amended and reauthorized several times since then to further strengthen the roles of parents, students, and educators in the educational process. The IDEA provides the rules or guidelines for special education services throughout the United States. The following are core components of the IDEA and provide the landmark principles on which the process is built:
- Zero-reject - This principle prohibits public schools from excluding any student from education because he or she has a disability
- Non-discriminatory evaluation - Fair testing of children is required, with tests that are administered and scored in an unbiased way
- Free, appropriate public education (FAPE) - This is the core principle of IDEA and defines special education as services and instruction, provided at no cost to parents, that is individually designed to confer educational benefit. This instruction is based on a student's unique educational needs and implemented in the least restrictive environment.
- Least restrictive environment (LRE) - To the greatest extent possible, students with disabilities are required to be educated with their peers without disabilities and in the schools they would attend if they were not disabled.
- Procedural Due Process - Parents must be given the opportunity to consent or object to their student's education, referral, assessment, program or placement
- Parent participation - Parents may participate as full partners and have full knowledge of their student's education program.
Procedural Safeguards - The IDEA provides parents and eligible students with certain rights in the special education process. These are called Procedural Safeguards.
"504" refers to Section 504 of the Rehabilitation Act of 1973 and its subsequent amendments. Section 504 is civil rights legislation that protects individuals with disabilities from discrimination on the basis of that disability. Section 504 states that, "no otherwise qualified individual with a disability shall be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." For children with disabilities the most important regulation concerns access to a free and appropriate public education (FAPE). FAPE under 504 is defined as an opportunity to be provided an education comparable to the education provided to non-handicapped students, requiring that reasonable accommodations be made. Section 504 provides parents and eligible students with certain rights in the process. These are called 504 Procedural Safeguards
FERPA is Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."
- Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.
- Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.
- Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR 99.31):
- School officials with legitimate educational interest (need to know);
- Other schools to which a student is transferring;
- Specified officials for audit or evaluation purposes (state and federal audits);
- Appropriate parties in connection with financial aid to a student;
- Organizations conducting certain studies for or on behalf of the school (Office of Civil Rights, Office of Special Education Programs);
- Accrediting organizations;
- To comply with a judicial order or lawfully issued subpoena;
- Appropriate officials in cases of health and safety emergencies (DCF, DDS); and
- State and local authorities, within a juvenile justice system, pursuant to specific State law.
- To DCF on behalf of children in foster care where DCF acts as the statutory parent.
- Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.
The ADA is a federal law that was signed into law on July 26, 1990. The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin - and Section 504 of the Rehabilitation Act of 1973 -- the ADA is an "equal opportunity" law for people with disabilities.
To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment. The ADA does not specifically name all of the impairments that are covered.
When anyone has a suspicion that a child might have a disability it is their responsibility to make a prompt referral to Planning and Placement Team for review. This responsibility is known as Child Find. Child Find is a component of the Individuals with Disabilities Education Act (IDEA) that requires state and local education agencies to identify, locate, and evaluate all children with disabilities, aged birth to 21, who are in need of early intervention or special education services. Child Find is a continuous process of public awareness activities, screening and evaluation designed to locate, identify, and refer as early as possible all young children with disabilities and their families who are in need of an Early Intervention Program (Birth to 3) or Special Education services (3-21). Referrals can be made by any school staff member, parent, pediatrician or other interested party. What happens when a teacher has concerns?
If a teacher has concerns with a student's school performance, he or she may request assistance from the Scientifically Research-Based Intervention (SRBI) Team (also known as the Early Intervention Plan or EIP). The SRBI Team is a general education initiative designed to support students and teachers by providing professional development, strategies, suggestions and, when data warrants, planned interventions for students who are experiencing difficulty in school (academically, behaviorally, and/or socially). The SRBI team is a group of professional staff who works together with the teacher to review data, determine if intervention is necessary and plan, implement, and evaluate the effect of the intervention on student performance. Though this is not a special education process, it is typically implemented before a referral for special education (except in emergencies or where the student has an obvious disability requiring specially designed instruction or accommodations). Parents are made aware of this process before it is initiated. After alternative strategies have been used, the teacher and other involved school personnel monitor the student's school performance and determine whether the alternative strategies are successful and should continue. Very often, many problems are resolved at this level.
If, after a series of interventions, the student has not responded to the scientifically research-based intervention that has been implemented with fidelity, the SRBI Team will request a Planning and Placement Team (PPT) meeting with the parents to discuss the need for further evaluation. This is called PPT 1. This is a formal process that follows state and federal guidelines, to which parents must be invited. This referral "starts the clock" with mandated timelines (see below). Parents should receive written notice of a referral for special education evaluation made by school personnel within 5 days after the referral is made.
What happens when a parent has concerns?
The parent may also make a referral to a Planning and Placement Team by writing a letter to the teacher or principal at the school your student attends. You should date your request and keep a copy for your records. You may also verbally request a referral and the principal of your student's school building (or his/her designee) will assist you in the referral process. Upon the receipt of the referral, the Planning and Placement Team (PPT) (also known as the IEP Team) will meet to consider the request. This meeting is called PPT 1. The purpose of PPT 1 is to review the reasons for the referral, determine if a comprehensive evaluation is warranted, and if so, and plan the evaluation. The team will meet and discuss the reasons for the request and determine, based upon an analysis of data, a record review, and any and all information presented by any team member (including the parent), if an evaluation is warranted. If the team decides to refer for evaluation, the same process outlined above would then be followed. If the parents disagree with the team's decision regarding the evaluation, they may refuse consent or exercise their due process rights.
Parents should receive written notice of a referral for special education evaluation made by school personnel within 5 days after the referral is made.
Evaluation is an essential beginning step in the special education process for a student with a suspected disability. Before a student can receive special education and related services for the first time, a full and individual initial evaluation of the student must be conducted to see if the student has a disability and is eligible for special education. Informed parental consent must be obtained before this evaluation may be conducted. Upon planning the evaluation the school team will ask for written parental consent by seeking a parent's signature on the Notice and Consent to Conduct an Initial Evaluation.
The evaluation process is guided by requirements in the Individuals with Disabilities Education Act (IDEA).
Purposes of Evaluation
The initial evaluation of a student is required by IDEA before any special education and related services can be provided to that student. The purposes of conducting this evaluation are straightforward:
- To see if the student is a "student with a disability," as defined by IDEA
- To gather information that will help determine the student's educational needs
- To guide decision making about appropriate educational programming for the student.
The Scope of Evaluation
A student's initial evaluation must be full and individual, focused on that student and only that student. This is a longstanding provision of IDEA. An evaluation of a student under IDEA means much more than the student sitting in a room with the rest of his or her class taking an exam for that class, that school, that district, or that state. How the student performs on such exams will contribute useful information to an IDEA-related evaluation, but large-scale tests or group-administered instruments are not enough to diagnose a disability or determine what, if any, special education or related services the student might need, let alone plan an appropriate educational program for the student.
The evaluation must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent. When conducting an initial evaluation, it's important to examine all areas of a student's functioning to determine not only if the student is a student with a disability, but also determine the student's educational needs. This full and individual evaluation may include evaluating the student's:
- vision and hearing,
- social and emotional status,
- general intelligence,
- academic performance,
- communication, and
- motor abilities
As IDEA states, the school system must ensure that the evaluation is sufficiently comprehensive to identify all of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified.
Variety of Assessment Tools
The evaluation must use a variety of assessment tools and strategies. Under IDEA, it is inappropriate to base any eligibility decision upon the results of only one procedure. Tests alone will not give a comprehensive picture of how a student performs or what he/she knows and is able to do. Only by collecting data through a variety of approaches (e.g., observations, interviews, norm-referenced tests, criterion-referenced tests, curriculum-based assessment, and so on) and from a variety of sources (parents, teachers, specialists, and student) can an adequate picture be obtained of the student's strengths and challenges.
IDEA also requires schools to use technically sound instruments and processes in evaluation. Technically sound instruments generally refer to assessments that have been shown through research to be valid and reliable. Technically sound processes require that assessments and other evaluation materials be:
- administered by trained and knowledgeable personnel;
- administered in accordance with any instructions provided by the producer of the assessments; and
- Used for the purposes for which the assessments or measures are valid and reliable.
In conjunction with using a variety of sound tools and processes, assessments must include those that are tailored to assess specific areas of educational need (for example, reading or math) and not merely those that are designed to provide a single general intelligence quotient, or IQ.
Taken together, all of this information can be used to determine whether the student has a disability under IDEA, the specific nature of the student's special needs, whether the student needs special education and related services and, if so, to design an appropriate program.
Another important component in evaluation is to ensure that assessment tools are not discriminatory on a racial or cultural basis. Evaluation must be conducted in the student's typical, accustomed mode of communication (unless it is clearly not feasible to do so) and in a form that will yield accurate information about what the student knows and can do academically, developmentally, and functionally. For some students, English is not the native language; others use sign language, or assistive or alternative augmentative communication devices to communicate. To assess such a student using a means of communication or response not highly familiar to the student raises the probability that the evaluation results will yield minimal, if any, information about what the student knows and can do.
Specifically, consideration of language, culture, and communication mode means the following:
- If your student has limited English proficiency, materials and procedures used to assess your student must be selected and administered to ensure that they measure the extent to which your student has a disability and needs special education, rather than measuring your student's English language skills.
This provision in the law is meant to protect students of different racial, cultural, or language backgrounds from misdiagnosis. For example, students' cultural backgrounds may affect their behavior or test responses in ways that teachers or other personnel do not understand. Similarly, if a student speaks a language other than English or has limited English proficiency, he or she may not understand directions or words on tests and may be unable to answer correctly. As a result, a student may mistakenly appear to be a slow student or to have a hearing or communication problem.
- If an assessment is not conducted under standard conditions-meaning that some condition of the test has been changed (such as the qualifications of the person giving the test or the method of giving the test)-a description of the extent to which it varied from standard conditions must be included in the evaluation report.
- If your student has impaired sensory, manual, or speaking skills, the law requires that tests are selected and administered so as best to ensure that test results accurately reflect his or her aptitude or achievement level (or whatever other factors the test claims to measure), and not merely reflect your student's impaired sensory, manual, or speaking skills (unless the test being used is intended to measure those skills).
Special education law requires the school to meet strict time deadlines in evaluating a student and formulating an appropriate IEP. Connecticut regulations require that upon initial referral, the school must complete its evaluation and, if appropriate, implement an IEP within 45 school days excluding weekends, holidays, school vacations and the time required to obtain written parental consent for evaluation. The CT regulations do, however, allow for the PPT team to extend this timeline IF there is mutual, written consent from the parent. This extension of the timeline is generally used to gather more data from an implemented intervention. The initial referral that begins this 45-day period can take place at any time during the school year, even if there are not 45 days left before the end of the school year. In that case, the "clock" will stop when summer vacation begins and will start again when school reconvenes in the fall.
Once the evaluation has been completed another PPT meeting will be convened. This is called PPT 2. At this meeting, your child's assessment results will be explained. The specialists who assessed your child will explain what they did, why they used the tests they did, your child's results on those tests or other evaluation procedures, and what your child's scores mean when compared to other children of the same age and grade.
It is important to know that the PPT team may not determine that a child is eligible if the determinant factor for making that judgment is the child's lack of instruction in reading or math or the child's limited English proficiency. The child must otherwise meet the law's definition of a "child with a disability"-meaning that he or she has one of the thirteen (13) disabilities listed in the IDEA and, because of that disability, needs special education and related services.
If the evaluation results indicate that your child meets the definition of one or more of the disabilities listed under IDEA and needs special education and related services, the results will form the basis for developing your child's IEP.
IDEA's Definition of a "Child with a Disability"
IDEA lists different disability categories under which a child may be found eligible for special education and related services. These categories are:
- Developmental delay
- Emotional disturbance
- Hearing impairment
- Intellectual disability
- Multiple disabilities
- Orthopedic impairment
- Other health impairment
- Specific learning disability
- Speech or language impairment
- Traumatic brain injury
- Visual impairment, including blindness
To find out more about these disabilities and how IDEA defines them you will find them defined in the glossary.
Having a disability, though, does not necessarily make a child eligible for special education. Consider this language from the IDEA regulations:
"Child with a disability means a child evaluated as having one of the disabilities listed above and who, by reason thereof, needs special education and related services."
This provision includes the very important phrase "...and who, by reason thereof..." This means that, because of the disability, the child needs special education and related services. Many children have disabilities that do not bring with them the need for extra educational assistance or individualized educational programming. If a child has a disability but is not eligible under IDEA, he or she MAY be eligible for the protections afforded by other laws-such as Section 504 of the Rehabilitation Act of 1973, as amended. It's not uncommon for a child to have a 504 plan at school to address disability-related educational needs. Such a child will receive needed assistance but not under IDEA.
If, however the PPT team determines that the child qualifies for AND is education the team will craft an Individualized Education Plan (IEP).