Know Your Rights: IDEA and State Law

As a parent of a child with special needs, it is important for you to know about the Individuals with Disabilities Education Act (IDEA), the federal law that sets specific standards for the education of your child. IDEA serves to provide protection for you as a parent by making sure that your state (through your local school district) is providing a Free and Appropriate Public Education (FAPE) for your child. FAPE reflects the requirement that each student with a disability is entitled to a publicly-funded education that is designed to meet the individual needs of that student.

IDEA provides overarching laws and regulations regarding special education, but states are allowed to “interpret” these laws as long as the basic standards of IDEA are met. In Michigan, Public Act 451 functions as a Mandatory Special Education Act. Michigan’s law provides educational services to students with disabilities up to the age of 26, which is a higher standard than IDEA (age 21). In addition to children diagnosed at birth, Michigan serves infants and toddlers under the age of 3 who are at risk for a disability. You can find information about your state’s interpretation of IDEA here .

• History
• Changes to IDEA in 2008
• Qualifying for Services
• Section 504
• The IEP
• Internet Resources

History

When the U.S. Department of Education crafted the regulations to implement the Education for All Handicapped Children Act of 1975 (P.L. 94-142), now known as IDEA, it needed to provide a process and criteria for identifying students in the category of "specific learning disability," which is how most children with dyslexia are identified for services in the public schools.

In 2004, IDEA was re-authorized to align closely with the No Child Left Behind (NCLB) legislation. NCLB was enacted as federal law in 2001, calling for school accountability, supplemental services to under-performing schools, and the eventual restructuring of schools that continued to fail to make Adequate Yearly Progress (AYP). AYP specifies that 100% of students will maintain a passing grade in reading and math by the year 2014. NCLB also requires that all core curriculum teachers be highly qualified and that role of the parents in education should be valued and strengthened. The current IDEA of 2004, as well as NCLB, directed schools to focus more on helping all children learn by addressing the problems that are brought about by the eligibility requirements to receive special education services.

Technically, the re-authorized special education law is called the Individuals with Disabilities Education Improvement Act (IDEIA), but it is still commonly referred to as IDEA. Since 2004, IDEA has had several amendments and re-visions that make it a “dynamic” governing law. As a result of ongoing legislative committee work at the federal level, new regulations are routinely issued. Sometimes, new regulations or amendments are a reflection of case law, where rulings at the Supreme Court level have required that the law be amended because of a new (and possibly wrongful) interpretation. Changes at the federal level will require that states re-visit their own governing special education laws and amend as necessary.

In December of 2008, new regulations specific to Part B of the IDEA were issued. For clarification purposes, IDEA is divided into two main sections: Part B and Part C.

• Part B: Specifies all services provided to children and youth with disabilities, ages 3–21. (Or in Michigan’s case, until the age of 26.)
• Part C: Specifies services provided to infants and toddlers with disabilities, from birth to age 2.11 years. In Michigan, this program is called Early On.

Highlights of Changes to IDEA in 2008

• As a parent, you can revoke consent for your child who has been receiving special educational services under IDEA. You must provide the revocation in writing. The school is not required to amend or purge your child’s educational records in order to remove references to previously received special education services.
• Once you have revoked consent for services, the school must put in writing when services will end. The school system is not allowed to use mediation or due process to challenge your revocation. At this point, the school will not be out of compliance with IDEA for failure to provide a FAPE to your otherwise eligible child.

There may come a time when special education services are no longer needed for your child. These new steps and governing rules are the result of significant case law that essentially left schools vulnerable to law suits. And, the fact that schools cannot counter your decision with due process, in essence, protects you as well.

In the previous section, you reviewed both the IDEA and NCLB. The two other key pieces of legislation that are worth exploring are the Americans with Disabilities Act (ADA), which was re-authorized in 2008, and Section 504, which is a section of the Vocational Rehabilitation Act of 1973.

Both ADA and Section 504 address the civil rights of individuals with disabilities, with extensive regulations related to discrimination, equal access to programs, services or activities, especially those receiving federal assistance. The ADA’s language actually mirrors that of Section 504, so we will explore the key points of Section 504 as it relates to public education. Again, both landmark acts provide the broadest legal protection for individuals with disabilities in areas such as employment, education, and physical access to public buildings, services and activities.

Qualifying for Services under IDEA

Historically, a child qualified for special education services if a “severe discrepancy” between academic success and intellectual ability was identified. Services were not provided if the student demonstrated low achievement because of low ability (as measured by IQ testing), but students whose low achievement was "unexpected" (those with normal or above normal ability, or IQ) were given services. To differentiate the two and to determine the existence of a "severe discrepancy," a student was generally administered a standardized ability (IQ) test and academic achievement tests, followed by a comparison of the standard scores of the tests. If this comparison showed that the student's "achievement" was well below his or her "ability" in at least one area (such as reading, spelling, writing, etc.), then the student was eligible to receive special education services under the category of "specific learning disability." A significant concern for parents and educators was how to help children who did not meet these requirements, yet experienced difficulty learning to read. 

Relatively recently, we realized that the discrepancy model was not the best way to identify dyslexia. A study funded and released in November 2011 by the National Institutes of Health (NIH) reported that there was no basis to distinguish between groups of poor readers based on IQ. As a result, we now look for a pattern of strengths and weaknesses, with strengths in spoken language comprehension in particular and weaknesses in phonemic awareness, rapid automatic naming, basic reading skills (such as decoding), reading fluency, reading comprehension, spelling, and/or writing.

In recent years, a new framework called Response to Intervention (RTI) has been initiated to eliminate the discrepancy model and ensure services for all children who struggle in academic settings. Proponents of RTI promote this system for its ability to provide help to a student by working with all students in a class, administering frequent assessments, and delivering interventions that are specific to an individual child's needs. These components of the RTI model require additional responsibilities for staff that are well beyond those of the SLD identification model that schools have used since the 1977 IDEA regulations were adopted. It remains to be seen how this new framework is working for our students with dyslexia.

Section 504

From a theoretical standpoint, many aspects of Section 504 mirror the intent of IDEA. Section 504 provides additional protection to an individual whose impairment is not considered severe enough for special education services, but warrants physical, classroom, or testing accommodations. Very often, children with health conditions such as Attention Deficit Disorder (ADD), asthma, diabetes, etc. are covered under Section 504 (as is a child with a broken limb). Section 504 requires a school to make reasonable accommodations for children with special needs or health conditions.

Basic rights covered by Section 504:

• No person with a disability shall be excluded from the participation in, or subjected to discrimination under any program or activity receiving financial assistance from the federal government.
• No person with a disability will be excluded from participation in or be denied the benefits of services or activities of a public entity.
• The remedies, procedures and rights under ADA apply to Section 504. Any person alleging discrimination on the basis of disability is entitled to the same protection as stipulated in the ADA.

To be eligible for protections under Section 504, children must have physical or mental impairments that substantially limit at least one major life activity such as walking, talking, seeing, breathing, hearing, learning, reading, writing, working, caring for oneself, and performing manual tasks. Section 504 requires an evaluation be completed by many different sources. It does not require, however, that a meeting take place before a change in placement happens.

Unlike IDEA, Section 504 and ADA do not

• Ensure that a child with a disability will receive an individualized educational program (IEP) that is designed to meet the unique learning needs of a child with a disability.
• Have the same “procedural safeguards” that IEPs have such as a student with an IEP must receive a written notice before any change in placement occurs and a family has a right to an independent educational evaluation at public expense if there is disagreement with what the schools have determined the child’s disability to be.

The IEP

• The IEP meeting, required by federal statute, is convened at least once a school year to plan an educational program that is tailored to the needs of each disabled child.
• The child's "team" attends the meeting: teachers, therapists, parents, school administrators, and any other invited parties.
• These IEP procedural safeguards are key legal provisions that ensure that parents and students are informed of their legal rights and that certain steps, procedures, and timelines are followed from start to finish.
• Parents are equal members of the IEP team. They assist in identifying the child’s needs selecting appropriate services and placement.
  • Since parents know their child very well and can talk about their child’s strengths and needs, they also contribute essential ideas for enhancing their child’s education.
  • By working as equal members of the IEP team, parents can listen to others’ ideas about what their child needs to work on at school and share their suggestions.
  • They can also report on whether the skills their child is learning at school are being used at home or not.
  • If the child’s placement is decided by a different group than the IEP team, the parents must be part of that group as well.
  • Parents may also ask that the IEP meeting be postponed until a later date if the team cannot agree on a given plan of action.
  • If the parents have a limited proficiency in English or are deaf, they may need an interpreter in order to understand and be understood. Therefore, if parents need an interpreter for a meeting to discuss their child’s evaluation, eligibility for special education, or IEP, they should let the school know ahead of time. Telling the school in advance allows the school to make arrangements for an interpreter so that parents can participate fully in the meeting.

When a child has a significant learning disability or delay, it is usually preferable to have an IEP, because IDEA is the federal law (with some funding behind it) that mandates that schools comply with specific standards and processes in implementing an educational plan. Section 504 is a civil rights law that is easily interpreted with a great degree of disparity, and differs by state, county, and school district. In essence, there tends to be less accountability by districts for 504 plans.

However, when it comes to medical conditions, allergies, or physical limitations, and where there are no significant learning issues involved, 504 plans are often recommended.

One key point to think about is the difference between the words access and educational benefit.

If your child needs an individualized educational program that includes special services such as speech-language or occupational therapies, or a customized curriculum, then an IEP will serve as the legal document outlining these services. If your child needs to be placed in the front of the classroom, or requires an allergy-free environment, but the general education curriculum remains the same, then a 504 plan is adequate to detail these environmental accommodations.

Consider the differences in these two cases:

• Johnny has a severe peanut allergy. He cannot eat or come in contact with any peanut products. Special accommodations have to be made for him in the lunchroom, classroom and throughout the entire building. A comprehensive and detailed directive will be included in a 504 plan, giving Johnny access to a safe and peanut-free educational environment. Specifics might include signage throughout the building indicating “peanut free rooms” or even a building-wide mandate that no peanut products are allowed in the school. His curriculum or educational experience will not be affected by a 504 plan.
• Lisa has a speech and language delay and has trouble comprehending written text. She would benefit from an Individualized Education Plan (IEP) which would itemize special services including speech-language therapy, occupational therapy, and reading intervention. An IEP in this case would provide maximum educational benefit because it would be specific to her individual learning needs. Many aspects of her day-to-day educational experience will be altered because of her specific learning needs.