Education Law
Special Education and Education Law
Education
Law is the legal discipline covering all the issues pertaining to
learning institutions, from pre-school through higher education such as
graduate and professional schools. More specifically, Education Law
refers to a collection of laws, rules and regulations that govern the
operation of our education systems. Its
primary focus is to improve and create new standards in the area of
public learning institutions, school systems and school boards charged
with great responsibility of educating the youth of our society.
On
November 19, 1975, Public Law 94-142 was enacted into law. The law was
originally called The Education for All Handicapped Children Act of
1975. (The legislative history of the law is reported in the 1975 United States Code Congressional and Administrative News, beginning at page 1425.) The original legislation was introduced in May, 1972, after several:
- .
. . landmark court cases establishing in law the right to education for
all handicapped children . . . In 1954, the Supreme Court of the United
States (in Brown v. Board of Education) established the
principle that all children be guaranteed equal educational
opportunity. The Court stated “In these days, it is doubtful that any
child may reasonably be expected to succeed in life if he is denied the
opportunity of an education. Such an opportunity . . . is a right which
must be made available to all on equal terms.” (At 1430 in the
legislative history.)
Congress
described the high social and economic costs that society pays for
failing to provide disabled children with an appropriate
education:
- Yet,
the most recent statistics provided by the Bureau of Education for the
Handicapped estimated that of the more than 8 million children . . .
with handicapping conditions requiring special education and related
services, only 3.9 million such children are receiving an appropriate
education. 1.75 million handicapped children are receiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education. (At 1432) .
The
long-range implications of these statistics are that public agencies
and taxpayers will spend billions of dollars over the lifetimes of
these individuals to maintain such persons as dependents and in a
minimally acceptable lifestyle. With proper education services, many
would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society. (At 1433) .
There
is no pride in being forced to receive economic assistance. Not only
does this have negative effects upon the handicapped person, but it has
far-reaching effects for such person’s family. (At 1433) .
Providing
educational services will ensure against persons needlessly being
forced into institutional settings. One need only look at public
residential institutions to find thousands of persons whose families
are no longer able to care for them and who themselves have received no
educational services. Billions of dollars are expended each year to
maintain persons in these subhuman conditions . . . (At
1433).
Parents of handicapped children all too frequently are not able to advocate the rights of their children because they have been erroneously led to believe
that their children will not be able to lead meaningful lives . . . It
should not . . . be necessary for parents throughout the country to
continue utilizing the courts to assure themselves a remedy . . . (At
1433) .
The Individuals with Disabilities Education Act of 1997
Since
1975, The Individuals with Disabilities Education Act was amended
several times. Today, the statute is referred to as “IDEA.” The statute is located in the United States Code (U.S.C.) at Volume 20, Section 1401.
The
Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as
amended, 20 U.S.C. § 1400 et seq. (1988 ed. and Supp. IV), requires all
States to provide disabled children with a “free appropriate public
education,” §1401(a)(18). This case presents the question whether a
court may order reimbursement for parents who unilaterally withdraw
their child from a public school that provides an inappropriate
education under IDEA and put the child in a private school that
provides an education that is otherwise proper under IDEA, but does not
meet all the requirements of § 1401(a)(18). The Court held that the
court may order such reimbursement.
The
Part B regulations define 11 specified disabilities. 34 CFR §
300.5(b)(1)-(11). The Education of the Handicapped Act Amendments of
1990 amended the Individuals with Disabilities Education Act [formerly
the Education of the Handicapped Act] to specify that autism and
traumatic brain injury are separate disability categories. See section
602(a)(1) of the Act, to be codified at 20 U.S.C.
1401(a)(1).
Section
300.505 of the Part B regulations sets out the elements that must be
contained in the prior written notice to parents: (1) A full
explanation of all of the procedural safeguards available to the
parents under Subpart E; (2) A description of the action proposed or
refused by the agency, an explanation of why the agency proposes or
refuses to take action, and a description of any options the agency
considered and the reasons why those options were rejected; (3) A
description of each evaluation procedure, test, record, or report the
agency uses as a basis for the proposal or refusal; and (4) A
description of any other factors which are relevant to the agency’s
proposal or refusal. 34 CFR § 300.505(a)(1)-(4).
Government & Education:
Our government is charged with
many different functions and responsibilities. One major area where
government intervention and regulation is readily apparent is within
the field of education, which is administered through the many
different public school systems across our nation, by the United
States Department of Education. The Department of Education oversees
and sets minimum standards whereby each public school system in the
United States must meet in order to graduate its students. This is
usually administered by state board regents exams which test each
public school student to see if they have met the minimum requirements
to pass a certain grade level. Each state has the primary
responsibility for the maintenance of the exam and the daily operation
of the public schools located within its specific jurisdiction. It’s
important to note, that the federal government also has a primary
interest in the area of education. For example, the National Institute
of Education was created to improve and foster public education
throughout the United States. The National Institute of Education also
finds ways to improve education standards by creating and developing
better teaching methodologies and techniques. Each state is required by
its specific Constitution to provide a public school system whereby
children may receive an education. State legislatures may exercise
power over their school systems in any manner consistent with its own
Constitution. Many state legislatures accomplish this by delegating
power over the school system to a state board of education.
The law of education
historically was focused on providing access to high-quality education
for all children, no matter what their race, disability status, income
or gender.
The law of education strived
to make higher education more accessible to students who wished to
attend a college or university. Many of the changes in Education law
since the first schools were built have been brought about by court
interpretations of the federal Constitution and by the congressional
enactment of federal statutes based on constitutional laws and
principles. Over time, as public schools changed and evolved under the
law, so did the private educational institutions. Private schools were
also inspired by the broad sweeping changes in Education law. These
private institutions began lobbying their own state legislatures and
bringing about lawsuits to help foster and change public opinion and
sentiment about private education and teaching as a whole.
Attorneys specializing in Education Law:
Attorneys
specializing in Education law must have great insight and knowledge in
areas such as Constitutional Law, Administrative Law, Family Law,
Disability Law, Federal Code Regulations and many other legal areas
that govern the existing legal obligations that exist between state
legislatures and their respective schools boards. Attorneys who
practice Education law usually work or deal with state or local
administrative agencies such as school boards or private individuals
and help their clients by reforming or creating new rules and
regulations that can be implemented into each state’s public and
private educational system.
Individuals
looking for an attorney specializing in Education law need to find
someone who is well versed in the Equal Opportunity Education Act of
1974 and the Family Privacy Educational Act. A good attorney
specializing Education law will also understand the subtle
Constitutional differences between private and public educational
institutions and the appropriate rules and regulations that govern them.
CLICK HERE TO SPEAK WITH AN ATTORNEY WHO SPECIALIZES IN EDUCATION LAW
CLICK HERE TO READ MORE ON EDUCATION LAW
CLICK HERE TO READ THE JOINT MEMORANDUM ON ADD (Attention Deficit Disorder) (published
by the Office of Special Education and Rehabilitative Services, the
Office for Civil Rights, and the Office of Elementary and Secondary
Education.)
Congress
provides federal funding to states that develop plans meeting Federal
Education goals. See 20 U.S.C. § 1412. One of the prerequisites for the
receipt of federal funds is that a state establish procedures to
assure:
[t]hat
to the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are not disabled, and that
special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only if
the nature or severity of the disability is such that education in
regular classes with the use of supplementary aids and services cannot
be achieved satisfactorily. 20 U.S.C. § 1412(5); see also 34 C.F.R. §§
300.132, 300.550(b). Although the statute itself does not use the term,
this preference is known as the “least restrictive environment,” or
LRE, in the accompanying regulations. See 34 C.F.R. § 300.550-300.556.
In addition, the state educational agency also is responsible for
assuring that the requirements of the IDEA are carried out and that
programs for children with disabilities administered within the state
by the local educational agency as well as all programs administered by
another state agency, meet the educational standards of the state
educational agency. See 20 U.S.C. § 1412(6).20.
Under
the IDEA, the educational needs of a handicapped child and the services
required to meet those needs must be memorialized annually in that
child’s IEP. See 20 U.S.C. § 1414(a)(5); Walczak, 142 F.3d at 122
(summarizing the contents of the IEP). IEPs are formulated based on the
input of a school official qualified in special education, the child’s
teacher, the child’s parents, and when appropriate, the child. See 20
U.S.C. § 1401(a)(20).21 When parents are not satisfied with the IEP
proposed for their child, they may file a complaint with the state
educational agency; such complaints are resolved through an impartial
due process hearing conducted by either the local or state educational
agency. See 20 U.S.C. § 1415(b), (c); see also Conn. Gen.Stat. § 10-76a
et seq. (setting forth the procedural and substantive obligations of
parents and educational agencies in the appeals process under state
law). In Connecticut, the state educational agency conducts due process
hearings, though the hearing officers appointed by the DOE are not
employees of the DOE. See Conn. Gen.Stat. § 10-76h(c); M.C. v.
Voluntown Board of Educ., 178 F.R.D. 367, 370 (D.Conn.1998). Any party
not satisfied with the decision of the hearing officer may bring a
civil action in the Connecticut Superior Court or the U.S. District
Court, as the plaintiff did here. See 20 U.S.C. § 1415(e).
The
IDEA contains several provisions establishing the role of agencies
(other than the state educational agency) in providing educational
services. For instance, it provides, in part, that:
Any
State meeting eligibility requirements … and desiring to participate
in the program … shall submit to the Secretary, through its State
educational agency, a State plan … [that] shall -
(13)
set forth policies and procedures for developing and implementing
interagency agreements between the State educational agency and other
appropriate State and local agencies to -
(A)
define the financial responsibility of each agency for providing
children with disabilities and youth with free appropriate public
education, and
(B)
resolve interagency disputes, including procedures under which local
educational agencies may initiate proceedings under the agreement in
order to secure reimbursement from other agencies or otherwise
implement the provisions of the agreement[.]
20
U.S.C. § 1413(a); see also 34 C.F.R. § 300.152. Further, the duty of
the state educational agency to comply with the IDEA does not “limit
the responsibility of agencies other than educational agencies in a
State from providing or paying for some or all of the costs of a free
appropriate public education.” See 20 U.S.C. § 1412(6).28
B. Claims against the DOE and the DCF under the ADA
1. The ADA in General
The
ADA provides, in part, that “no qualified individual with a disability,
shall, by reason of the disability, be excluded from participation in
or be denied the benefits of the services, programs or activities of a
public entity, or be subjected to discrimination by such entity.” 42
U.S.C. § 12132. This requirement is contained in Title II of the ADA,
which prohibits discrimination by public entities against qualified
individual with a disability in the benefits or activities of the
public entity.35 Recently, however, the Second Circuit held that in
enacting Title II of the ADA, Congress exceeded its power under § 5 of
the Fourteenth Amendment and therefore, failed to validly abrogate
Eleventh Amendment immunity. Garcia v. S.U.N.Y. Health Sciences Center
of Brooklyn, No. 00-9223, 2001 WL 1159970, at *9 (2d Cir. Sept.26,
2001). But, “a private suit for money damages under Title II of the ADA
may only be maintained against a state if the plaintiff can establish
that the Title II violation was motivated by either discriminatory
animus or ill will due to disability.”36 Id. Here, the plaintiff
demands injunctive relief from both defendants, which is not affected
by the court’s ruling in Garcia.37 See id. at *12; Board of Trustees of
the University of Alabama v. Garrett, 531 U.S. 356, 374 n. 9, 121 S.Ct.
955, 148 L.Ed.2d 866 (2001) (holding that although Congress did not
validly abrogate the States’ sovereign immunity from suit by private
individuals for money damages under Title I of the ADA, those standards
can be enforced by private individuals in actions for injunctive relief
under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)).
Therefore,
a plaintiff need not show discriminatory animus or ill will due to
disability, as this is the standard when a damages claim is involved.
Courts have previously recognized that where the handicapping condition
is related to the benefit provided, it will rarely, if ever, be
possible to say with certainty that a particular decision was
discriminatory…. [T]he question of who is otherwise qualified and
what actions constitute discrimination under § 504 would seem to be two
sides of a single coin; the ultimate question is the extent to which a
grantee is required to make reasonable modifications in its programs
for the needs of the handicapped. ….. The appropriate focus in the
case before us, therefore, is not whether [the plaintiff] is otherwise
qualified for … benefits, but the extent to which the defendants are
required by the anti-discrimination statutes to modify their programs
to meet all of [the plaintiff's] needs as a disabled individual …..
[N]either the ADA nor the Rehabilitation Act establish an obligation to
meet a disabled person’s particular needs vis-a-vis the needs of other
handicapped individuals, but mandate only that the services provided
… to nonhandicapped individuals not be denied to a disabled person
because he is handicapped. Doe, 148 F.3d at 83 (citations omitted).
The
Court in this case stated that the plaintiff does not allege, nor
present any evidence, that he was treated differently than any
non-disabled individual. Instead, the evidence shows that the DCF
modified its program several times to meet the needs of the plaintiff.
For example, it added medical monitoring as part of his program when it
was requested by the plaintiff’s mother. Further, it tailored the
mentoring and counseling activities to meet the needs of the plaintiff
and his family as expressed in the family planning group meetings. In
short, the Court finds that there is no evidence that either the DOE or
the DCF acted with any bad faith or gross misjudgment. See R.B., 99
F.Supp.2d at 419. Perhaps the plaintiff did not receive the same
services as he would have received had he been admitted to a
residential facility, but the evidence shows that the DCF expended
substantial funds on behalf of the plaintiff when he was participating
in the NCTP. Not only were he and his family provided with various
kinds of counseling, he also enjoyed medical care and recreational
activities through the DCF. The Court finds that his programs were
reasonably tailored to meet his needs.
C. Rehabilitation Act Claim against the DCF
Section
504 of the Rehabilitation Act guarantees that “no otherwise qualified
individual with a disability, … shall, solely by reason of her or his
disability, be excluded from the participation in, be denied benefits
of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). While
actions for money damages under the Rehabilitation Act are most likely
foreclosed, see Garcia, 2001 WL 1159970 at *11 (holding that the
plaintiff’s § 504 damage claim against New York fails because the state
did not waive its sovereign immunity from suit), actions for injunctive
relief are still possible, see id. (holding that deliberate
indifference still remains the necessary showing for § 504 claims).
In
order to establish a violation of § 504 of the Rehabilitation Act, a
plaintiff must show essentially the same elements required under the
ADA, see Doe, 148 F.3d at 82, though § 504 covers entities receiving
federal financial assistance. Messier, 1999 WL 20910, at *8 n. 7. More
particularly, “[t]he elements of a claim for retaliation under Section
504 … are: (i) a plaintiff was engaged in protected activity; (ii)
the alleged retaliator knew that the plaintiff was involved in
protected activity; (iii) an adverse decision or course of action was
taken against plaintiff; and (iv) a causal connection exists between
the protected activity and the adverse action.” Weixel v. Board of
Educ. of the City of New York, 97 CIV. 9367(DAB), 2000 WL 1100395, at
*4, (S.D.N.Y. Aug. 7, 2000) (citing cases).
The
right to procedural due process requires that “`deprivation of life,
liberty or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’” Logan
v. Zimmerman Brush Co. 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265
(1982) (quoting Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). A plaintiff asserting a
procedural due process claim must show: (1) that he had a property
right; (2) that the state deprived him of that right; and (3) that the
deprivation was effected without due process of law. Local 342 v. Town
Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir.1994).
Related services include:
transportation, and such developmental, corrective, and other
supportive services (including speech pathology and audiology,
psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, social work services, counseling
services, including rehabilitation counseling, and medical services,
except that such medical services shall be for diagnostic and
evaluation purposes only) as may be required to assist a child with a
disability to benefit from special education, and includes the early
identification and assessment of disabling conditions in children. 20
U.S.C. § 1401(a)(17); see also Cedar Rapids, 526 U.S. at 68 n. 1, 119
S.Ct. 992. In other words, related services are those “that enable a
disabled child to remain in school during the day provide the student
with `the meaningful access to education that Congress envisioned.’”
Cedar Rapids, 526 U.S. at 73, 119 S.Ct. 992 (quoting Irving Independent
School Dist. v. Tatro, 468 U.S. 883, 891, 104 S.Ct. 3371, 82 L.Ed.2d
664 (1984)).
State
educational agency “means the State board of education or other agency
or officer primarily responsible for the State supervision of public
elementary and secondary schools….” 20 U.S.C. § 1401(a)(7). Local
educational agency “means a public board of education or other public
authority legally constituted within a State for either administrative
control or direction of, or to perform a service function for, public
elementary or secondary schools in a city, county, township, or other
political subdivision of a State….” Id. § 1401(a)(8).
Under
state law, the IEP is formulated by the child’s PPT, which does not
include the parents or the child, but the parents have the right to
participate in PPT meetings under the IDEA. See Conn. State Reg. §
10-76a-1(p). The IEP must include: (1) a statement of the child’s
present levels of educational performance; (2) a statement of annual
goals, including long and short-term objectives; (3) a statement of the
specific educational services to be provided to the child; (4) a
statement of the transition services needed by the child, where
applicable; (5) the projected date on which the services will begin and
their anticipated duration; and (6) objective criteria and evaluation
procedures to be used to determine whether the instructional objectives
are being achieved. See 20 U.S.C. § 1401(20).
The following Joint Policy
Memorandum was published by the Office of Special Education and
Rehabilitative Services, the Office for Civil Rights, and the Office of
Elementary and Secondary Education. The Memo clarifies that children
with Attention Deficit Disorder (ADD) and/or Hyperactive Attention
Deficit Disorder (ADHD) may be eligible
for special education services under three IDEA disability categories -
SLD, OHI, and ED. The Joint Policy Memorandum also describes the
circumstances under which public schools must provide education and
related services under Section 504 of the Rehabilitation Act.
Joint Policy Memorandum (ADD)
Office of Special Education and Rehabilitative Services
September 16, 1991
Robert
R. Davila, Assistant Secretary, Office of Special Education and
Rehabilitative Services. Michael L. Williams, Assistant Secretary,
Office for Civil Rights. John T. MacDonald, Assistant Secretary, Office
of Elementary and Secondary Education.
I. Introduction
There
is a growing awareness in the education community that attention
deficit disorder (ADD) and attention deficit hyperactive disorder
(ADHD) can result in significant learning problems for children with
those conditions.[1]
While
estimates of the prevalence of ADD vary widely, we believe that three
to five percent of school-aged children may have significant
educational problems related to this disorder. Because ADD has broad
implications for education as a whole, the Department believes it
should clarify State and local responsibility under Federal law for
addressing the needs of children with ADD in the schools. Ensuring that
these students are able to reach their fullest potential is an inherent
part of the National education goals and AMERICA 2000. The National
goals, and the strategy for achieving them, are based on the
assumptions that:
(1) all children can learn and benefit from their education; and
(2) the educational community must work to improve the learning opportunities for all children.
This
memorandum clarifies the circumstances under which children with ADD
are eligible for special education services under Part B of the
Individuals with Disabilities Education Act (Part B), as well as the
Part B requirements for evaluation of such children’s unique
educational needs. This memorandum will also clarify the responsibility
of State and local educational agencies (SEAs and LEAs) to provide
special education and related services to eligible children with ADD
under part B. Finally, this memorandum clarifies the responsibilities
of LEAs to provide regular or special education and related aids and
services to those children with ADD who are not eligible under Part B,
but who fall within the definition of “handicapped person” under
Section 504 of the Rehabilitation Act of 1973. Because of the overall
educational responsibility to provide services for these children, it
is important that general and special education coordinate their
efforts.
II. Eligibility for Special Education and Related Services under Part B
Last
year during the reauthorization of the Education of the Handicapped Act
[now the Individuals with Disabilities Education Act, Congress gave
serious consideration to including ADD in the definition of “children
with disabilities” in the statute. The Department took the position
that ADD does not need to be added as a separate disability category in
the statutory definition since children with ADD who require special
education and related services can meet the eligibility criteria for
services under Part B. This continues to be the Department’s
position.
No
change with respect to ADD was made by Congress in the statutory
definition of “children with disabilities”; however, language was
included in Section 102(a) of the Education of the Handicapped Act
Amendments of 1990 that required the Secretary to issue a Notice of
Inquiry (NOI) soliciting public comment on special education for
children with ADD under Part B. In response to the NOI (published
November 29, 1990 in the Federal Register,) the Department received
over 2000 written comments, which have been transmitted to the
Congress. Our review of these written comments indicates that there is
confusion in the field regarding the extent to which children with ADD
may be served in special education programs conducted under Part
B.
A. Description of Part B
Part
B requires SEAs and LEAs to make a free appropriate public education
(FAPE) available to all eligible children with disabilities and to
ensure that the rights and protections of Part B are extended to those
children and their parents. 20 U.S.C. 1412(2); 34 CFR §§ 300.121 and
300.2. Under Part B, FAPE, among other elements, includes the provision
of special education and related services, at no cost to parents, in
conformity with an individualized education program (IEP). 34 CFR §
300.4.
In
order to be eligible under Part B, a child must be evaluated in
accordance with 34 CFR §§ 300.530-300.534 as having one or more
specified physical or mental impairments, and must be found to require
special education and related services by reason of one or more of
these impairments.2 20 U.S.C. 1401(a)(1); 34 CFR § 300.5. SEAs and LEAs
must ensure that children with ADD who are determined eligible for
services under Part B receive special education and related services
designed to meet their unique needs, including special education and
related services needs arising from the ADD. A full continuum of
placement alternatives, including the regular classroom, must be
available for providing special education and related services required
in the IEP.
B. Eligibility for Part B services under the “Other Health Impaired” Category
The
list of chronic or acute health problems included within the definition
of “other health impaired” in the Part B regulations is not exhaustive.
The term “other health impaired” includes chronic or acute
impairments that result in limited alertness, which adversely affects
educational performance. Thus, children with ADD should be classified
as eligible for services under the “other health impaired” category in
instances where the ADD is a chronic or acute health problem that
results in limited alertness, which adversely affects educational
performance. In other words, children with ADD, where the ADD is a
chronic or acute health problem resulting in limited alertness, may be
considered disabled under Part B solely on the basis of this disorder
within the “other health impaired” category in situations where special
education and related services are needed because of the
ADD.
C. Eligibility for Part B services under other Disability Categories
Children
with ADD are also eligible for services under Part B if the children
satisfy the criteria applicable to other disability categories. For
example, children with ADD are also eligible for services under the
“specific learning disability” category of Part B if they meet the
criteria stated in §§ 300.5(b)(9) and 300.541 or under the “seriously
emotionally disturbed” category of Part B if they meet the criteria
stated in § 300.5(b)(8).
III. Evaluations under Part B
A. Requirements
SEAs
and LEAs have an affirmative obligation to evaluate a child who is
suspected of having a disability to determine the child’s need for
special education and related services. Under Part B, SEAs and LEAs are
required to have procedures for locating, identifying and evaluating
all children who have a disability or are suspected of having a
disability and are in need of special education and related services.
34 CFR §§ 300.128 and 300.220. This responsibility, known as “child
find,” is applicable to all children from birth through 21, regardless
of the severity of their disability.
Consistent
with this responsibility and the obligation to make FAPE available to
all eligible children with disabilities, SEAs and LEAs must ensure that
evaluations of children who are suspected of needing special education
and related services are conducted without undue delay. 20 U.S.C.
1412(2). Because of its responsibility resulting from the FAPE and
child find requirements of Part B, an LEA may not refuse to evaluate
the possible need for special education and related services of a child
with a prior medical diagnosis of ADD solely by reason of that medical
diagnosis. However, a medical diagnosis of ADD alone is not sufficient
to render a child eligible for services under Part B.
Under
Part B, before any action is taken with respect to the initial
placement of a child with a disability in a program providing special
education and related services, “a full and individual evaluation of
the child’s educational needs must be conducted in accordance with
requirements of § 300.532.” 34 CFR § 300.531. Section 300.532(a)
requires that a child’s evaluation must be conducted by a
multidisciplinary team, including at least one teacher or other
specialist with knowledge in the area of suspected disability.
B. Disagreements over Evaluations
Any
proposal or refusal of an agency to initiate or change the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child is subject to the written prior
notice requirements of 34 CFR §§ 300.504-300.505.3 If a parent
disagrees with the LEA’s refusal to evaluate a child or the LEA’s
evaluation and determination that a child does not have a disability
for which the child is eligible for services under Part B, the parent
may request a due process hearing pursuant to 34 CFR §§ 300.506-300.513
of the Part B regulations.
Even A. Definition Section B. Programs and Services Under Section 504 Under Under Should SEAs “providing Other Through C. Procedural Safeguards Under Section 504 Procedural V. Conclusion Congress In In It
If
IV.
Obligations Under Section 504 of SEAs and LEAs to Children with ADD
Found Not To Require Special Education and Related Services under Part B
if a child with ADD is found not to be eligible for services under Part
B, the requirements of Section 504 of the Rehabilitation Act of 1973
(Section 504) and its implementing regulation at 34 CFR Part 104 may be
applicable. Section 504 prohibits discrimination on the basis of
handicap by recipients of Federal funds. Since Section 504 is a civil
rights law, rather than a funding law, its requirements are framed in
different terms than those of Part B. While the Section 504 regulation
was written with an eye to consistency with Part B, it is more general,
and there are some differences arising from the differing natures of
the two laws. For instance, the protections of Section 504 extend to
some children who do not fall within the disability categories
specified in Part B.
504 requires every recipient that operates a public elementary or
secondary education program to address the needs of children who are
considered “handicapped persons” under Section 504 as adequately as the
needs of nonhandicapped persons are met. “Handicapped person” is
defined in the Section 504 regulation as any person who has a physical
or mental impairment which substantially limits a major life activity
(e.g., learning). 34 CFR § 104.3(j). Thus, depending on the severity of
their condition, children with ADD may fit within that definition.
Section 504, an LEA must provide a free appropriate public education to
each qualified handicapped child. A free appropriate public education,
under Section 504, consists of regular or special education and related
aids and services that are designed to meet the individual student’s
needs and based on adherence to the regulatory requirements on
educational setting, evaluation, placement, and procedural safeguards.
34 CFR §§ 104.33, 104.34, 104.35, and 104.36. A student may be
handicapped within the meaning of Section 504, and therefore entitled
to regular or special education and related aids and services under the
Section 504 regulation, even though the student may not be eligible for
special education and related services under Part B.
Section 504, if parents believe that their child is handicapped by ADD,
the LEA must evaluate the child to determine whether he or she is
handicapped as defined by Section 504. If an LEA determines that a
child is not handicapped under Section 504, the parent has the right to
contest that determination. If the child is determined to be
handicapped under Section 504, the LEA must make an individualized
determination of the child’s educational needs for regular or special
education or related aids and services. 34 CFR § 104.35. For children
determined to be handicapped under Section 504, implementation of an
individualized education program developed in accordance with Part B,
although not required, is one means of meeting the free appropriate
public education requirements of Section 504.4 The child’s education
must be provided in the regular education classroom unless it is
demonstrated that education in the regular environment with the use of
supplementary aids and services cannot be achieved satisfactorily. 34
CFR § 104.34.
it be determined that the child with ADD is handicapped for purposes of
Section 504 and needs only adjustments in the regular classroom, rather
than special education, those adjustments are required by Section 504.
A range of strategies is available to meet the educational needs of
children with ADD. Regular classroom teachers are important in
identifying the appropriate educational adaptations and interventions
for many children with ADD.
and LEAs should take the necessary steps to promote coordination
between special and regular education programs. Steps also should be
taken to train regular education teachers and other personnel to
develop their awareness about ADD and its manifestations and the
adaptations that can be implemented in regular education programs to
address the instructional needs of these children. Examples of
adaptations in regular education programs could include the following:
a structured learning environment; repeating and simplifying
instructions about in-class and homework assignments; supplementing
verbal instructions with visual instructions; using behavioral
management techniques; adjusting class schedules; modifying test
delivery; using tape recorders, computer-aided instruction, and other
audio-visual equipment; selecting modified textbooks or workbooks; and
tailoring homework assignments.”
provisions range from consultation to special resources and may include
reducing class size; use of one-on-one tutorials; classroom aides and
note takers; involvement of a “services coordinator” to oversee
implementation of special programs and services, and possible
modification of nonacademic times such as lunchroom, recess, and
physical education.
the use of appropriate adaptations and interventions in regular
classes, many of which may be required by Section 504, the Department
believes that LEAs will be able to effectively address the
instructional needs of many children with ADD.
safeguards under the Section 504 regulation are stated more generally
than in Part B. The Section 504 regulation requires the LEA to make
available a system of procedural safeguards that permits parents to
challenge actions regarding the identification, evaluation, or
educational placement of their handicapped child whom they believe
needs special education or related services. 34 CFR § 104.36. The
Section 504 regulation requires that the system of procedural
safeguards include notice, an opportunity for the parents or guardians
to examine relevant records, an impartial hearing with opportunity for
participation by the parents or guardian and representation by counsel,
and a review procedure. Compliance with procedural safeguards of Part B
is one means of fulfilling the Section 504 requirement.5 However, in an
impartial due process hearing raising issues under the Section 504
regulation, the impartial hearing officer must make a determination
based upon that regulation.
and the Department have recognized the need to provide information and
assistance to teachers, administrators, parents and other interested
persons regarding the identification, evaluation, and instructional
needs of children with ADD. The Department has formed a work group to
explore strategies across principal offices to address this issue. The
work group also plans to identify some ways that the Department can
work with the education associations to cooperatively consider the
programs and services needed by children with ADD across special and
regular education.
fiscal year 1991, the Congress appropriated funds for the Department to
synthesize and disseminate current knowledge related to ADD. Four
centers will be established in Fall, 1991 to analyze and synthesize the
current research literature on ADD relating to identification,
assessment, and interventions. Research syntheses will be prepared in
formats suitable for educators, parents and researchers. Existing
clearinghouses and networks, as well as Federal, State and local
organizations will be utilized to disseminate these research syntheses
to parents, educators and administrators, and other interested persons.
addition, the Federal Resource Center will work with SEAs and the six
regional resource centers authorized under the Individuals with
Disabilities Education Act to identify effective identification and
assessment procedures, as well as intervention strategies being
implemented across the country for children with ADD. A document
describing current practice will be developed and disseminated to
parents, educators and administrators, and other interested persons
through the regional resource centers network, as well as by parent
training centers, other parent and consumer organizations, and
professional organizations. Also, the Office for Civil Rights’ ten
regional offices stand ready to provide technical assistance to parents
and educators.
is our hope that the above information will be of assistance to your
State as you plan for the needs of children with ADD who require
special education and related services under Part B, as well as for the
needs of the broader group of children with ADD who do not qualify for
special education and related services under Part B, but for whom
special education or adaptations in regular education programs are
needed.
you have any questions, please contact Jean Peelen, Office for Civil
Rights; (Phone: ), Judy Schrag, Office of Special Education
Programs (Phone: 202/732-1007); or Dan Bonner, Office of Elementary and
Secondary Education (Phone: 202/401-0984).
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