SPED EC-12 REVIEW NOTES

SPECIAL EDUCATION LAWS AND REGULATIONS

LEGAL FRAMEWORK

In the 1954 landmark school desegregation case, Brown v. Board of Education of Topeka (347 U.S. 483), the U.S. Supreme Court determined that it was unlawful to discriminate against a group of individuals for arbitrary reasons. The Court determined that education was characterized as a fundamental function of government that should be afforded to all citizens on an equal basis. The Brown decision by the U.S. Supreme Court set a precedent that was used by parents and advocates to secure equal educational opportunities for children with disabilities. Two court decisions in 1972, Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania and Mills v. Board of Education, District of Columbia started a flurry of litigation regarding the education of children with disabilities. The litigation, coupled with untiring vocal and collaborative efforts of parents and politically powerful advocacy groups, led to federal legislation in 1975 for students with disabilities.The Education for All Handicapped Children Act (Public Law 94-142) was signed into law on November 29, 1975 by President Gerald Ford. This legislation is considered the “Bill of Rights” for children with disabilities and their families. The legislation incorporated six major components or guarantees that have forever changed the landscape of education across the United States. These components include:

  1. A free appropriate public education (FAPE). All children, regardless of the severity of the disability, must be provided an education appropriate to their unique needs at no cost to the parent(s)/guardian(s). Included in this principle is the concept of related services, which requires that children receive other services as determined educationally necessary to benefit from special education. These related services may include occupational therapy, physical therapy, orientation and mobility instruction, and a host of other support services for the student.

  2. The least restrictive environment (LRE). Children with disabilities are to be educated, to the maximum extent appropriate, with students without disabilities. Placements must be consistent with the pupil’s education needs. Each state is required to provide a full continuum of alternate placements.

  3. An individualized education program (IEP). This document, developed with the parent(s)/guardian(s), is an individually tailored statement describing an educational plan for each learner with exceptionalities. The IEP is required to address: (1) the present level of academic functioning; (2) annual goals and accompanying instructional objectives; (3) educational services to be provided; (4) the degree to which the pupil will be able to participate in general education programs; (5) plans for initiating services and the length of service delivery; and (6) an annual evaluation procedure specifying objective criteria to determine if instructional objectives are being met.

  4. Procedural due process. The Act affords parents or guardians several safeguards pertaining to the child’s education. Briefly, parents or guardians have the right to confidentiality of records; to examine all records; to obtain an independent evaluation; to receive written notification (in the parents’ native language) of proposed changes to the child’s educational classification or placement; and the right to an impartial hearing whenever disagreements arise regarding educational plans for the child. Furthermore, the student’s parents or guardians have the right to representation by legal counsel.

  5. Nondiscriminatory assessment. Prior to placement, a child must be evaluated by a multidisciplinary team in all areas of suspected disability by tests that are not racially, culturally, or linguistically biased. Students are to receive several types of assessments, administered by trained personnel. A single evaluation procedure is not permitted for either planning or placement purposes.

  6. Parental participation. P.L. 94-142 mandates meaningful parent involvement. This legislation requires that parents participate fully in the decision-making process that affects the child’s education.

 

Amendments to PL 94-142

PL 99-457 created the Handicapped Infants and Toddlers Program. This new provision was aimed at children from birth through age 2 with developmental delays or disabilities. It assists states in implementing a statewide, comprehensive, coordinated, multidisciplinary, interagency program of services for young children and their families.

 

Public Law 101-476 (1990 Amendments to PL 94-142)

  • Renamed the legislation Individuals with Disabilities Education Act (IDEA).

  • Required that each student have, no later than age 16, an individual transition plan (ITP) as part of his or her IEP. The plan allows for a coordinated set of activities and interagency linkages designed to promote the student’s movement to post school functions such as independent living, vocational training, and additional educational experiences.

  • Expanded the scope of the related services provision by adding two services: social work and rehabilitation counseling.

  • Added the identification of autism and traumatic brain injury as distinct disability categories.

 

Public Law 105-17 (1997 Amendments to PL 94-142)

  • Students with disabilities who exhibit less serious infractions of school conduct may be disciplined in ways similar to children without disabilities (including a change in placement) provided that the misbehavior was not a manifestation of the student’s disability.

  • IEPs are now required to state how the student with disabilities will be involved with and progress in the general education curriculum.

  • Transition planning will begin at age 14.

  • Regular educators will become part of the IEP team.

  • Benchmarks and measurable annual goals will be emphasized.

  • Assistive technology needs of the student must be considered by the IEP team.

  • Orientation and mobility services for children with visual impairments were added to the definition of related services.

  • States are required to offer mediation services to help resolve disputes.

  • A variety of assessment tools and strategies are to be used in an effort to gather relevant functional and developmental information.

  • Requires that students with disabilities be included in statewide and districtwide assessment programs or given alternative assessments that meet their unique needs.

 

Public Law 108-446 (2004 Amendments to PL 94-142)

  • Added language from the No Child Left Behind Act of 2001 regarding core academic subjects, limited English proficiency, and highly qualified teachers.

  • Created a 15-state pilot program in which states may develop and implement three-year IEPs.

  • Districts may elect to not use the “discrepancy formula” in determining if students have a learning disability. A school district may instead use a process called the response to intervention model.

  • Benchmarks or short-term objectives are no longer required in an IEP, except for students who take alternative assessments.

Individuals with Disabilities Education Improvement Act of 2004 (IDEIA or IDEA 2004)

  • Purpose of IDEA 2004 is to reauthorize IDEA to be consistent with No Child Left Behind and update education legislation

  • IQ achievement discrepancy is no longer required for the determination of a specific learning disability

  • Response to Intervention (RTI) may be used as part of the special education evaluation

  • RTI interventions are based on research-based interventions

  • The individualized education program (IEP) planning teams base services on peer-reviewed literature

  • Student progress is regularly monitored based on written measurable goals

  • Transition services begin at age 16

  • Align IDEA with NCLB’s provisions

  • A student with a disability may be removed to an interim alternative setting up to 45 school days, if the behavior involved a weapon, illegal drugs or bodily harm, without the determination of whether the behavior is a manifestation of the disability.

  • Dispute-resolution system model for education was clarified

  • Changes in special education eligibility and evaluation process

 

Section 504 of the Rehabilitation Act of 1973 (PL 93-112)

  • Civil rights law that says no individual can be excluded, solely because of his or her disability, from participating in or benefiting from any program or activity receiving federal financial assistance, which includes schools.

  • Adults and children benefit from Section 504

  • Students with disabilities who do not qualify for special education under IDEA may qualify under Section 504.

  • To qualify under Section 504, the disability has to impact a major life function, which includes education.

  • To meet Section 504 requirements, schools must make “reasonable accommodations” for students with disabilities so that they can participate in educational programs provided to other students.

  • Under Section 504, students may also receive related services, such as speech/language pathology, occupational or physical therapy, or counseling.

Americans with Disabilities Act (ADA; PL 101-336) (1990, amended 2008)

  • An anti-discrimination law that ensures that individuals, both adults and children, with disabilities have access to businesses and other public and private entities. It mandates reasonable accommodations for individuals with special needs.

  • Those protected by ADA are defined as an individual with a physical or mental disability that substantially limits one or more major life activity.

  • ADA has two major provisions that affect the education of these students:

    • Applies protection to nonsectarian private schools, including preschools.

    • Requires public schools to make reasonable accommodations for students with disabilities.

  • ADA most often applies to making school facilities accessible to students with disabilities, such as by adding ramps, elevators, and other modifications to buildings.

Workforce Investment Partnership Act of 1998 (PL 105-220) (1998)

  • Seeks to consolidate, coordinate, and improve employment, training, literacy, and vocational rehabilitation programs in the United States.

 

Assistive Technology Act (PL 105-394) (1998)

  • Provides federal funding to assistive technology state grant programs that provide information, demonstration centers, and referral services to people with disabilities, allowing access to different types of assistive technology.

  • Establishes advocacy services for individuals needing legal assistance in obtaining assistive technology services.

  • Creates a federal/state partnership funding program that provides low interest loans in order for individuals with disabilities to purchase assistive technology devices.

 

Disability Categories

The U.S. Department of Education currently classifies students in special education into one or more disability categories. These categories of disability include the following: Specific Learning Disabilities, Autism, Intellectual Disability, ED, MD, HI, OI, OHI, SI, VI, TBI, DD, DB

 

Of these thirteen classifications, the two largest are specific learning disabilities, with 47.4 percent of all special education students, and speech or language impairments with 18.7 percent of all special education students. Note that there is not a specific category for students diagnosed with attention deficit/hyperactivity disorder. These students are instead grouped into the general category of other health impairment.

 

Texas Legislation for Individuals with Disabilities

States are allowed to have statutes that add to the protections for students with disabilities but not to take away from what is provided by IDEA. In Texas, they are found in the Texas Administrative Code (TAC), Title 19, Part II, Chapter 89. Adaptations for Special Populations. Specific subsections that may be of interest to an educator are:

  • Confinement, Seclusion, Restraint and Time-Out §89.1053;

  • Content of the Individualized Education Program (IEP) §89.1055;

  • Autism Supplement §89.1055(e)(1)-(11);

  • Extended School Year Services §89.1065;

  • Transition §89.1055(g);

  • Deafness §89.1080; and

  • Visual Impairment and Blindness §89.1055(d) & §89.1085.

 

The Special Education Referral Process

Because of the federal laws and regulations that govern the education of students with disabilities, a process has evolved over time that governs the special education referral process. The purpose of this module is to provide an overview to the “Special Education Process” so that the learner may understand the global procedures for providing a student with disabilities a free and appropriate education (FAPE).

 

PHASE ONE: Recognition

All students begin their educational careers with needs. For many, it is the need for guidance by a professional educator who can expand their knowledge and understanding of the world around them. While each student brings a different level of knowledge and skills to his or her first class, the individual’s needs are typically met by a highly-qualified educator. However, there are children who have unique needs that are atypical for children of their age and may not be within the expertise of the general education classroom teacher. It is during this time that the teacher (or parent, administrator, or counselor) recognizes a consistent need or problem exhibited by the student. The recognition of a discrepancy in the student’s academic, social/emotional, behavioral, and/or physical ability and his or her age may signal the need for additional academic or behavioral supports.

During this phase, it is important to call a meeting with the parents or guardians. The teacher should provide examples of the student’s work and/or anecdotal classroom notes regarding the student’s needs. In the meeting, the teacher and the parent/guardian should explore the following:

  • Is the issue a recurrent problem or new? The parents will be best able to present invaluable insight into the knowledge, skills, and needs of their child. The teacher should document when they recognized an issue.

  • Is the issue constant? All children may exhibit unique needs or problems at some point but it may only be an isolated episode for that day. The teacher should document any issue that is constant, providing dates and information about the behavior of concern or skill deficit exhibited by the student.

  • Is the issue appropriate for children of this age? How many kindergarten students have been seen crying the first days of school? This behavior is a typical occurrence and should not be confused with an atypical behavior. The teacher should have a strong understanding of the cognitive, behavioral, and physical development levels of typical students they teach.

It is possible that the problems that are being exhibited by the student may be “solved” with the careful execution of a cooperative plan of action between the teacher and the parents. The teacher and the parent should document their plan of action, strategies utilized with the student, and progress. The teacher should continue to collect student work samples and keep assessment data relevant to the student’s unique needs. It is critically important that the teacher document all actions and strategies used in the classroom and the impact on the student.

The student’s parents/guardians should be kept informed of any changes in the student’s progress. If the teacher, after a period of time, determines the problem cannot be controlled with simple classroom interventions, then the teacher should notify the parents/guardians that they will be asking for outside help from a school-based pre-referral team.

 

PHASE TWO: Pre-referral

The pre-referral step in the special education process is more formal than providing simple and temporary accommodations for students. Pre-referral intervention is to identify, develop, and implement alternative education strategies for students who have recognized problems in the classroom before the student is referred to special education. Pre-referral intervention is typically conducted by a Student Centered Team (also called early intervention team, intervention assistance team, student support team, teacher assistance team, or instructional support team). The pre-referral team usually consists of the teacher, the parents/guardians, an administrator, other general education teachers, nurse, guidance counselor, and any other adult involved in the education of the student. The general education teacher provides background information regarding the problem exhibited by the student and the team works together to develop possible solutions. Because of changes to IDEA in 2004, many states and independent school districts have begun using a more formal and systematic pre-referral process called response to intervention (RTI). “RTI is a model designed to address the needs of all children through a continuum of services, which include:

  • High-quality instruction and tiered evidence-based or practice-based intervention strategies aligned with individual student needs;

  • Frequent monitoring of progress to make results-based academic or behavioral decisions; and

  • Application of child response data to important educational decisions (such as those regarding placement, intervention, curriculum, and instructional goals and methodologies)” (TEA, 2007).

RTI provides three levels of intervention for students who are experiencing problems. Generally, the first level (sometimes referred to as Tier 1) is focused on utilizing high-quality general education instruction in the core curriculum with all students. RTI theorizes that around 80% of all students will respond positively to core curriculum and behavior systems. The second level (or Tier 2) provides targeted group instruction or some form of group remediation to improve performance. The RTI model believes that second level services will improve performance for approximately 15% of all students. If performance does not improve in the second level, then students are moved to the third level which consists of intensive, individualized interventions. Whether the school uses pre-referral teams or the more formal RTI process, the intent is to provide interventions that will help the student achieve success without entering special education. However, if these interventions do not improve the student’s performance, then the student will be referred for an assessment to determine possible eligibility for special education services.

 

PHASE THREE: Referral for Special Education Evaluation

If, after interventions in the general education classroom, the student continues to experience difficulty, school personnel may refer the child for a special education evaluation. Referrals for determination of eligibility for special education services may be initiated by:

  • School personnel (including general education teachers, special education teachers, counselors, administrators, etc.);

  • Child’s parent(s) or legal guardian(s);

  • Any other person involved in the education or care of the child.

The official referral begins the formal process of determining eligibility for special education services. Once a referral is provided, the school must obtain consent from the parent(s) or legal guardian(s) to begin the evaluation phase of the referral process.

 

PHASE FOUR: Special Education Evaluation

IDEA requires that students referred for special education services receive a nondiscriminatory multi-factored evaluation. The school district is required to complete the evaluation within 60 days of the referral date. The evaluation is to be conducted by a multidisciplinary team that will consist of individuals who can bring different perspectives and expertise to the evaluation. Some examples of team members include:

  • Educational Diagnostician (also called Psychometrist) or School Psychologist: These professionals are qualified to conduct all types of educational assessments including intelligence (IQ), achievement, behavior, etc.

  • Special Educators: These individuals are qualified to conduct some types of achievement and behavior evaluations as well as informal observations.

  • General Educators: These individuals provide documentation of the problems of the specific student.

  • Parent(s) or Legal Guardian(s): The parents or legal guardians provide valuable insight into the student’s behavior and personality in other environments.*

  • Related Service Providers (Physical Therapist, Occupational Therapist, Audiologist, Orientation and Mobility Specialist, etc.): These specialists provide information pertaining to specific areas of concern that have been assessed.

  • Medical Doctors (including psychiatrists, ophthalmologists, and optometrists): Depending on the disability of the student, medical records can also be used in the determination of eligibility for special education services.

* Parents of students with developmental disabilities must decide whether to complete the legal process to become the legal guardian once their child reaches 18 years old, the age of majority. According to Texas state law, this process is separate from the required school transition planning process.

The evaluation must be comprehensive and use evaluation tools and strategies that are technically sound and accepted. Most students receive a battery of formal evaluations that measure:

  • Intelligence

  • Achievement

  • Behavioral

  • Disability-specific issues

  • Medical

However, informal observations and documentation of the student’s past work should also be used during the eligibility determination meetings. Assessments may not be biased in regard to race, culture, language, or disability. The materials and procedures must be administered in the language and form most likely to provide accurate information on what the child knows and can do.

 

PHASE FIVE: Eligibility (FAPE)

IDEA states that each child is entitled to a Free Appropriate Public Education (FAPE.) Special education services are one way to accomplish that requirement for some students with disabilities. Within 30 days of the completion of the evaluation, the individuals that took part in the process thus far will meet to determine eligibility. In simple terms, a student is considered eligible for special education services if (1) the child has a disability as defined by IDEA which negatively impacts his/her educational performance, and (2) the child needs special education services in order to benefit from education.

Not all students are determined to be eligible for special education services. There are multiple reasons why a student may not qualify for special education services including not having a disability that negatively impacts his or her education. However, these students may need help to access the academic curricula. In these situations, the school will need to work out a plan to provide other services for the student.

If the team determines that the student is eligible for special education services, then a formal Individualized Education Program (IEP) team will be formed to develop a plan of special education services for the student.

 

PHASE SIX: IEP Meeting (IEP and LRE)

The Individualized Education Program (IEP) is a legal contract between the parents and the school district that describes the special education services to be provided by the local education agency which is the local school district. While IEP documents vary, the basic parts of an IEP include:

  • A student profile that provides background information about the student. The profile will include strengths and weaknesses of the student, information regarding performance in the classroom and on formal assessments, and the reason he or she is receiving special education services.

  • IEP initiation and duration dates: the goals expressly stated in an IEP begin on the date, stated in the IEP meeting, and are in effect until the date stated in the IEP. These IEP goals are reviewed, monitored and updated based on student progress. For most students, IEP goals are in place for one academic year.

  • A statement of “special instructional factors” (such as the need for assistive technology, braille, or transition services). If the student requires any of the special instructional factors, they should be addressed in the IEP.

  • A statement of special transportation needs;

  • A statement of opportunities to participate in nonacademic and extracurricular activities with their non-disabled peers

  • A statement of the frequency and method of reports of goal attainment for parents or guardians.

    • Benchmark pages are included and focus on specific areas that need special education services (such as reading, math, PE, etc.). The benchmark pages include: Present Levels of Academic Achievement and Functional Performance (PLAAFP) statements,

    • Measurable Annual Goals,

    • Evaluations used to measure annual goals,

    • Benchmarks to be achieved to meet the annual goals,

    • Special education and related services needed to achieve the annual goal (includes frequency of services, amount of time, location, and responsible agencies).

  • A Behavior Intervention Plan (BIP) if the student’s behavior is a concern and a functional behavioral assessment has been done or needs to be conducted,

  • For students 16 years and older; the plans and activities for the student’s transition from high school will be addressed

  • The signature page which provides a statement of least restrictive environment (LRE) and has the signatures of all members present at the meeting.

The benchmark pages are the “meat” of most IEPs and can be developed by any member of the team. Typically, these pages are developed by the special education teachers in collaboration with the parents, general education teachers, related service providers, and behavioral specialists.

In some school districts, the IEP meeting may be referred to as the ARD meeting. ARD stands for Admission, Review, and Dismissal. The IEP team (also called IEP committee or ARD committee) is formed for the purpose of 1) developing the IEP, the formal plan of special education services; 2) overseeing the implementation of the plan, 3) evaluating the effectiveness of the plan annually, and 4) developing future plans as needed. The IEP team can also meet as needed when unique issues present themselves during the academic year (such as with behavior issues).

The IEP team is composed of the following:

  • The parent(s) or legal guardian(s) of the student with a disability;

  • At least one general education teacher of the student if the student is or may be participating in the regular education environment for any classes;

  • At least one special education teacher of the student or a special education provider of the student;

  • A representative of the local educational agency (LEA) who is (1) qualified to supervise the needs of the student, (2) is knowledgeable of the general curriculum, (3) is knowledgeable about the availability of resources of the public agency, and (4) has the authority to commit agency resources; This person is frequently a principal or assistant principal of the student's campus.

  • An individual who can interpret the instructional implications of evaluations (typically an educational diagnostician, school psychologist, or specially-trained special education teacher);

  • The student, when appropriate; and

  • Other individuals asked to attend at the discretion of the school or the parent who have knowledge or special expertise regarding the student (such as related service providers and/or family members or family friends maintaining a close relationship with the student). Parents also have the right to invite an advocate if they so desire. Depending on the age of the student, other individuals may be included in the meeting including rehabilitation or transition service providers or early intervention representatives.

 

PHASE SEVEN: IEP Implementation

Once the IEP is developed and signed by members of the IEP team it is the responsibility of the entire IEP team to ensure that the IEP is implemented. The IEP team may meet as frequently as needed to discuss the implementation of the IEP. School personnel are required to provide documentation of the mastery of benchmarks and annual goals. The IEP document is a “living” document and can be altered during the school term if needed. The IEP goals and benchmarks provide the objectives for the education of the student and prescribe what services will be provided by the local school district and school campus to achieve those objectives. However, it must be understood that school agencies are not required to meet all the goals within the school term, but they must provide evidence of a “good faith effort” toward achieving the goals.

 

PHASE EIGHT: Reevaluation

Each year, the IEP team is required to meet for the dual purpose of evaluating the implementation of the current IEP and to develop the next annual IEP. During these annual meetings, the IEP team should discuss the positive and negative elements of the special education services provided and determine, based on any new assessment data, what services should be provided in the upcoming school year.

While the IEP is redeveloped each year, the IEP team does not have to conduct the battery of assessments each year. At a minimum, the IEP team is to determine if formal evaluation is required every three years. However, the IEP team can ask that formal evaluations be conducted more frequently if needed. There are times when, after the reevaluation takes place, it is determined that the student does not need special education services. One example of this might be young children who are provided speech and language services and have developed the ability to speak without problems. In this case, the IEP team will need to file appropriate documentation to support the fact that the student no longer is eligible for services and the IEP team will disband for this student.