CHAPTER TWO

FEDERAL LAWS

Introduction

Chapter Two includes an outline of the key provisions of the Individuals with Disabilities Education Act (IDEA).  Following the fact sheets on this law is a brief description of other key federal laws.  You can obtain a copy of these laws by writing to your Congressman.

Within the Fact Sheet on IDEA you will see references to the New Jersey Administrative Code (N.J.A.C. 6A:14).  These are New Jersey's regulations regarding special education services.  It is through N.J.A.C. 6A:14 that the principles of IDEA are defined in our State.  Obtain a copy of the code from your local school district Department of Special Services and read through at least once, underlining any areas that pertain to your child. 

Think of yourself as participating in the evolution of rights for children.  Express your ideas at public hearings about how you think children with disabilities - and all children - can best be educated.  Stay informed through our SPAN Newsletter, The Bridge, regarding new developments in the law.  Also, join our Parents Engaged in Public Policy (PEPP) list to receive action alerts on education, health and human services critical to your child and family.

Laws or statutes govern the affairs within a community or among states and come through elected officials (U.S. Congress, state legislature, etc.).

Rules or regulations are written to assist agencies with specific procedures to carry out the law.  Rules have the same force as the law.

Policies (written or unwritten) or guidelines are often developed by governmental bodies (school districts, state agencies, etc.) to help carry out rules more efficiently.  Sometimes they are in conflict with the intent of law.  If they are in conflict with the law, they do not carry the force of law and can be challenged.

Laws, regulations and policies can be changed when they do not work for families and students.  Often this requires working closely with other civil rights and education activists.

 

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FACT SHEET ON INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

What does the Individuals with Disabilities Education Act (IDEA) say?

It is the purpose of this act to assure that all children with disabilities have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of the children with disabilities and their parents or guardians are protected.  (P.L. 94-142 sec.3, 89)

When a law is passed, the government agency in charge of working with or enforcing that law writes regulations, or rules, explaining what the law means.  These regulations also define, or give the meanings, of the words used in the law.  In 1999, the U.S. Department of Education issued new regulations for the reauthorized IDEA.

Who is protected?

"Children with disabilities" means those evaluated as having mental retardation, hearing impairment or deafness, speech impairment, visual impairment, serious emotional disturbance, orthopedic impairment, other health impairments, deaf-blindness, multiple disabilities, or as having specific learning disabilities, who because of those impairments need special education and related services.  The act encompasses all children with disabilities ages 0-21 (from 0-3, infants and toddlers with disabilities and developmental delays are eligible for early intervention services under the auspices of the NJ Department of Health and Senior Services).

What are the Six Principles of IDEA?

1. Zero-Reject / Child Find: A school system cannot exclude a student with a disability from a public education because of the specific nature or degree of his/her disability.  All children and youth from birth to 21 who may have disabilities must be located and provided with appropriate educational services.  All states are required to implement child find procedures to locate unserved children and to inform parents or guardians of available programs.

2. Parent Participation / Shared Decision-Making: Participatory democracy is a term that describes decision-making in the schools or in other public agencies.  It refers to the legal right or political opportunity of those affected by a public agency's decision to participate in making those decisions.  The Individuals with Disabilities Education Act carries out parent/consumer involvement through policy in the following ways: Notice, Evaluation, Individualized Education Programs, Procedural Due Process, Advisory Panels to the State Education Agency, and Protection/Access to Records.

3. Nondiscriminatory Testing, Classification, and Placement:  Students who are being considered for specialized services must be evaluated by a multidisciplinary team including at least one teacher or specialist with knowledge in the area of the specific disability.  Test or assessment instruments must be administered in the child's native language or other modes of communication.  Testing instruments must be validated for the specific purpose for which they are used and tailored to assess specific areas of educational need and not merely those designed to provide a single general intelligence quotient.  No single test can be used as the sole criterion for determining placement into a special education program.  A multidisciplinary team must carry out the assessments.  Additional methods of evaluation would include observations of the student in his/her natural environment, at home, in the classroom or playground to better assess current skill levels.  Progress, services and placement must be reviewed at least annually and revised when necessary.

4. Individualized and Appropriate Education 

a. Free Appropriate Education:  All students with disabilities must be provided with appropriate services, personnel, and facilities necessary to meet full educational opportunities.  In regard to students with disabilities this would include: appropriate student-teacher ratios, qualified teachers and service providers, appropriate age ranges within classrooms, normal school day hours, interactions with peers without disabilities, adequate supportive staff, appropriate and adequate materials and equipment, functional curriculum content, including the Core Curriculum Content Standards applicable to all students for that age and grade, data based instruction, and transportation services.  These services are to be provided at no cost.  [(N.J.A.C. 6A:14-1.1(a)), (C.F.R. 300.300)]  In order to ensure proper staff preparation, a comprehensive system of personnel development was developed.  As required, the State must include: (a) a system for the continuing education of regular and special education and related services personnel to enable these personnel to meet the needs of children with disabilities under this part; (b) procedures for acquiring and disseminating to teachers, administrators, and related services personnel significant knowledge derived from education research and other sources; and (c) procedures for adopting, if appropriate, promising practices, materials, and technology, proven effective through research and demonstration.

b. Individualized Education Program (IEP): For each student with disability, a written statement must be developed and implemented which includes 1) a statement of the student's present level of educational performance including strengths and needs; 2) a statement of annual goals including short-term instructional objectives tied to the Core Curriculum Content Standards; 3) a statement of specific education and related services to be provided to the student and the extent to which the student will be able to participate in general educational programs to enable progress in the Core Curriculum Content Standards and to meet other needs; 4) the projected dates for initiation of services and the anticipated duration of services; and 5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short-term instructional objectives are being achieved.  [(N.J.A.C. 6A:14-3.6), (34 C.F.R. 300.340-350)]

5. Least Restrictive Environment:  To the maximum extent appropriate, students with disabilities, including children in public or private institutions or other care facilities, are to be educated with non-disabled children with needed supports, services, modifications and accommodations.  A continuum of alternative placements must be available to meet the needs of children with disabilities for special education and related services.  [(N.J.A.C. 6A:14-2.10), (34 C.F.R. 300.550)] 

6. Procedural Safeguards / Impartial Procedural Due Process: Procedural safe-guards assure fairness.  Due Process ensures that children and families, schools and professionals are all treated equally.  Procedural Due Process, the right to notice and the opportunity to protest, is a necessary educational ingredient in every phase of the education of a child with a disability.  Procedural Due Process is seen as a constitutional requisite under the requirements of the Fifth and Fourteenth Amendments that no person shall be deprived of life, liberty, or property without due process of law.  This means no child with a disability can be deprived of an education without exercising the right to protect what happens to him or her.  [(N.J.A.C. 6A:14-2.6-7), (34 C.F.R. 300.500-515)].

Parents of children with disabilities must be given prior notice at each step of the process.  The safeguards available to the parents include mediation and impartial due process hearings, a description of action, and a description of the evaluation procedures.  The notice must be written in language understandable to the general public and provided in the native language of the parents.  Written consent must be obtained from the parents before any action is taken to conduct any evaluation (initial or re-evaluation) or place the student in special education.  Due Process will be explained fully in Chapter Six of this manual.

Excerpted from Free Appropriate Public Education: The Law and Children with Disabilities, H. Rutherford Turnbull III; Iowa Exceptional Parent Center, Fort Dodge, Iowa, 1994-5.

Yonina Cohen, Age 7

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YOU AND THE LAW: OVERVIEW OF KEY FEDERAL LEGISLATION

Following in chronological order are some important laws protecting children with disabilities and families.

P.L. 89-10:  The Elementary and Secondary Education Act of 1965

Provided a comprehensive plan for readdressing the inequality of educational opportunity for economically underprivileged children.  Became the statutory basis upon which early special education legislation was drafted.

P.L. 89-313:  The Elementary and Secondary Education Act Amendments of 1965

Authorized grants to state institutions and state-operated schools devoted to the education of children with disabilities.  The first federal grant program specifically targeted for children with disabilities.

P.L. 89-750:  The Elementary and Secondary Education Amendments of 1966

Amended Title VI of P.L. 89-10 and established the first federal grant program for the education of youth with disabilities at local school level, rather than at state-operated schools or institutions.  Established the Bureau of Education of the Handicapped (BEH) and National Advisory Council (now National Council on Disability).

P.L. 91-230:  The Education of the Handicapped Act of 1970

Amended Title VI of P.L. 89-750 and established a core grant program for local educational agencies, known as Part B.  Also authorized a number of discretionary programs.

P.L. 93-112:  The Rehabilitation Act of 1973

Provides a comprehensive plan for providing rehabilitation services to all individuals, regardless of the severity of their disability.  Also provided for civil rights enforcement under Section 504.  Amended by P.L. 98-221 in 1983, and by P.L. 99-506 in 1986.  For more information, see following section in this chapter and additional information in Chapter Six.

P.L. 93-380:  The Education Amendments of 1974

These amendments to the Elementary and Secondary Education Act contained two important laws.  One is the Education of the Handicapped Act Amendments of 1974, the first to mention the provision of an appropriate education for all children with disabilities.  Also re-authorized the discretionary programs.  The second important law, the Family Education Rights and Privacy Act, often called Buckley Amendment, gives parents and students under the age of 18, and students age 18 and over, the right to examine records kept in the student's personal file.

P.L. 94-142:  The Education for All Handicapped Children Act of 1975

Mandated a free appropriate public education for all children with disabilities, ensured due process rights, mandated education in the least restrictive environment, and mandated Individualized Education Programs (IEPs), among other things.  This was the core of federal funding for special education.

P.L. 98-199:  The Education of the Handicapped Act Amendments of 1983

Re-authorized the discretionary programs including the establishment of services to facilitate the transition from school to work for youths with disabilities through research and demonstration projects; the establishment of parent training and information centers; and funding for demonstration projects and research in early intervention and early childhood special education.

P.L. 98-524:  The Carl D. Perkins Vocational Education Act of 1984

Authorized funds to support vocational education programs to include youths with disabilities.  The law stated that individuals who are members of special populations must be provided with equal access to recruitment, enrollment, and placement activities in vocational education.

P.L. 99-372:  The Handicapped Children's Protection Act of 1986

Provides for reasonable attorneys' fees and costs to parents and guardians who prevail in administrative hearings or court when there is a dispute with a school system concerning their child's right to a free appropriate special education and related services.

P.L. 99-457:  The Education of the Handicapped Act Amendments of 1986

Mandates services for preschoolers with disabilities and established the Part H (now Part C) program to assist states in the development of a comprehensive, multidisciplinary, and statewide system of early intervention services for infants and toddlers (birth to age 3).  Also reauthorized the discretionary programs and expanded transition programs.

P.L. 100-407:  The Technology-Related Assistance for Individuals with Disabilities Act of 1988

Primarily purpose to help states develop comprehensive, consumer-responsive programs of technology-related assistance and to extend the availability of technology to individuals with disabilities and their families.  "Assistive technology device" is broadly defined to give states flexibility in developing programs.  Assistive technology services include eight activities related to developing consumer-responsive services with federal funds.

P.L. 101-127:  The Children with Disabilities Temporary Care Reauthorization Act of 1989

Part of the larger Children's Justice Act, P.L. 99-401.  Title II of this law includes provisions to fund temporary child care (e.g., respite care) for children who have a disability or chronic illness and crisis nurseries for children at risk of abuse or neglect.  In 1989, P.L. 101-127 extended and expanded this program for two years and included an increase in funding for these programs from $5 million to $20 million in 1990 and 1991.  By July 1990, 87 grants were awarded to states to develop and establish respite care programs and crisis nurseries.

P.L. 101-336:  The Americans with Disabilities Act of 1990

Based on concepts of the Rehabilitation Act of 1973, ADA guarantees equal opportunity for individuals with disabilities in employment, public accommodation, transportation, State and local government services and telecom-munications.  The most significant federal law assuring full civil rights of all individuals with disabilities.

P.L. 101-392:  The Carl D. Perkins Vocational and Applied Technology Education Act of 1990

Amended P.L. 98-524 for the purpose of making the U.S. more competitive in the world economy.  Closely interwoven with the Education of the Handicapped Act (P.L. 94-142) toward guaranteeing full vocational education opportunity for youth with disabilities.

P.L. 101-476:  The Education of the Handicapped Act Amendments of 1990

Changed the name of Education for all Handicapped Children Act to the Individuals with Disabilities Education Act (IDEA).  Reauthorized and expanded the discretionary programs, mandated transition services and assistive technology services to be included in a child's or youth's IEP, and added autism and traumatic brain injury to the list of categories of children and youth eligible for special education and related services.

P.L. 101-496:  The Developmental Disabilities Assistance and Bill of Rights Act of 1990

Authorizes grants to support planning, coordination, and delivery of specialized services to persons with develop-mental disabilities.  Provides funding for the operation of state protection and advocacy systems for persons with developmental disabilities.  The original law was enacted in 1963 by P.L. 88-164.  In 1987, P.L. 100-146 significantly expanded the Act to include persons with mental retardation, autism, cerebral palsy, and epilepsy.

IDEA Amendments of 1997

Brought many changes to the law initially passed in 1975 as P.L. 94-142.  In addition to the free and appropriate public education, the amendments specifically cover: participation of children with disabilities in State and district-wide assessment programs; the way evaluations are conducted; parent participation in eligibility and placement decisions; development and review of the IEP; transition planning; voluntary mediation; and discipline of children with disabilities.

Goals 2000:  The Educate America Act, 1994

Provides a framework for meeting the National Education Goals by supporting new initiatives at federal, state, local, and school levels to provide equal educational opportunity for all students to achieve high educational and occupational skill standards and to succeed in the world of employment and civic participation.  Initiatives will need to be undertaken to provide all students with opportunities to meet high standards.

Adapted from: National Information Center for Children and Youth with Disabilities (NICHCY) Vol. 1, Nov. 1, 1990.

There are several other legislative initiatives that can assist children and their families.  For more information, contact SPAN or your representatives in Washington, D.C.

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SECTION 504 OF THE REHABILITATION ACT OF 1973

Section 504 of the Rehabilitation Act of 1973 is often called "Civil Rights Law for the Disabled."  The first law of this kind, Section 504 states:

"No otherwise qualified individual with handicaps[1] in the United States... shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance..."

This regulation applies to all recipients of Federal financial assistance from the Department of Education.  Recipients include state education agencies, elementary and secondary school systems, colleges and universities, libraries, vocational schools and state vocational rehabilitation agencies, many childcare and after-school providers, and most municipal recreational programs.

Recipients of federal funding that operate education programs (public schools) must provide a free appropriate public education which may consist of general or special education and related aids and services that are designed to meet the individual student's needs.  Further, it is required that students with and without disabilities be placed in the same setting, to the extent appropriate to meet the needs of the individual with a disability.

Section 504 defines a "handicapped person" as any person who (i) has a physical or mental impairment that substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.  Major life activities defined in the regulation include: caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  A determination that a child does not fit a category of disability named in the Individuals with Disabilities Act (IDEA) is not a sufficient determination that the child does not have a disability under the Section 504 definition.  It is possible for a school district, for example, to violate Section 504 by failing to provide a child with a disability with a free appropriate education even though the child was not entitled to it under IDEA.

If there is reason to believe that a child has a disability, the school district must evaluate the child.  The school district is not required to have a separate evaluation process for Section 504 from IDEA.  However, they must follow the requirements for evaluation specified in the Section 504 regulation.  There is no eligibility criteria for funding nor is there an assignment of a classification in Section 504, as there is for IDEA.  Under Section 504 they must answer the following questions:  Is there impairment?  Does it substantially limit a major life activity?  What are the accommodations or services that are needed to keep that impairment from substantially limiting the activity (i.e., learning)?  A student in school may be entitled to Section 504 services even if the disability does not limit their ability to learn, but rather limits their ability to attend school or participate in school activities.  An evaluation needs to be conducted before determining the student's needs.

The Local Education Agency (LEA, the school district) should draw upon a variety of sources in the evaluation process to minimize any margin for error.  Tests and evaluation materials should be chosen to assess the specific areas of need and must be administered by trained personnel (see Chapter Three for further details on the evaluation procedure).

Schools must establish a system of procedural safeguards that permit a student's parents to participate in or contest decisions regarding the identification, evaluation and placement of the student.  The procedural safeguards do not have to be different than those provided under IDEA.  Procedural safeguards must include, however, notice, opportunity for parents to examine relevant records, impartial hearing with opportunity for parents to participate, representation by counsel, and an appeals procedure.

There must be a designated 504 Grievance Coordinator to facilitate procedural safeguards within the district.  This should be someone in school administration not effected in the dispute to coordinate grievance internally and solve it amicably.  Contact your case manager to learn who has that responsibility.

Services through Section 504 for Children with Attention Deficit Disorder (ADD)

"Under Section 504, if a parent believes their child is handicapped by Attention Deficit Disorder, the Local Education Agency [LEA, your school district] must evaluate the child to determine whether he or she is handicapped as defined by Section 504.  If an LEA determines that the 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 and/or related aids and services."

"Should 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 classroom teachers with ADD.  Regular classroom teachers are important in identifying the appropriate educational adaptations and interventions for many children with ADD."

Excerpted from the policy memorandum issued by the U.S. Department of Education on September 16, 1991.

For more information on ADD/ADHD, contact the SPAN
office at 1-800-654-SPAN to request a copy of our ADD/ADHD packet.

 

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CHILDREN WITH DISABILITIES: HOW CAN WE MEET THEIR NEEDS THROUGH SECTION 504 & IDEA?

Section 504	IDEA
Who Must Comply?
·          Recipients of federal dollars	·          State education agencies (SEA)
	·          Local education agencies (LEA)
	·          Entities that contract with SEAs or LEAs to provide educational services for a child with a disability
Who is Protected?
·          Individual who has, has had, or is perceived as having a physical or mental impairment which substantially limits one or more major life activities; caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working); limits ability to attend, participate, receive benefit from schooling.  (Examples: cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, diabetes, heart disease, HIV/AIDS, dyslexia, dysgraphia, rheumatoid arthritis, ADD/ADHD, cystic fibrosis, severe allergies, asthma.)	·          Child, 0-21 years, with disability, that affects ability to learn and requires special education. ·          Covered disabilities: mental retardation, hearing impaired, speech/language impaired, visually impaired, serious emotional disturbance, autism, traumatic brain injury, other health impaired, learning disabled, multiply disabled, deaf, deaf-blind
What is Required?
FREE APPROPRIATE PUBLIC EDUCATION IN THE LEAST RESTRICTIVE ENVIRONMENT (“FAPE IN LRE”)
a.  Identify eligible students
b.  Non-discriminatory assessment & eligibility determination  (initial & annual review)
·          Team knowledgeable about child and disability	·          Multi-disciplinary team (also triennial)
·          Right to independent evaluation and to provide relevant information
Section 504	IDEA
c.  Provision of necessary services:
·   Services/ Accommodations PLAN:  Non-discrimination, reasonable accommodations, meaningful program access, adequate education Individualized Education Program (IEP):  Annual goals, short-term instructional objectives, methods to determine if they are being achieved ·    Accommodations: physical barrier removal, seating placement, extended time for testing, testing modifications, adjust class schedule, rest periods, use of aids (tape recorders, calculators, computers, audio-visual equipment, modified texts). ·     In class or pull-out services: note-taking (class and homework), oral catheterization, administration of medication (no waivers, inhalers, oral, epipen), monitoring of blood levels, monitoring of physical status, behavior management plan, consultation services coordination, tutors, counseling, OT/PT, etc.	·     Special education and related services, assistive technology, transition services, audiology, psychological services, physical therapy, occupational therapy, medical services for diagnosis and evaluation only, school health services, recreation (including therapeutic), counseling, social work services, transportation, speech pathology, parent counseling/ training, and administration of medication (this is not an exhaustive list)
d.  Services in Least Restrictive Appropriate Environment:
The class or school that the student would be in if not disabled; not to be removed from general education class unless the nature or severity of the disability is such that education in general education classes with use of supplementary aids and services cannot be achieved satisfactorily.
·    Comparable facilities if segregated	·    Continuum of placement/services
·    Meaningful program accessibility
e.  Confidentiality
What Are Due Process / Accountability Mechanism?
·  LEA Sec. 504 Grievance Coordinator US Dept of Education Office of Civil Rights ·  No exhaustion of administrative remedies ·  Impartial hearing, or OCR complaint, or immediate federal court (Sec. 1983)	·  LEA SEA US Dept of Education Office of Special Education Programs ·  Exhaustion of administrative remedies ·  Impartial hearing at Office of Administrative Law ? Federal or State Court

Written by Diana MTK Autin, Esq.

For more information on Section 504 and schools, contact the SPAN office at 1-800-654-SPAN to request our Section 504 fact sheet and information packet.  For information on Section 504 and childcare, request our Map to Inclusive Child Care brochure and Resources Guide.

Emilia Autin-Hefner, age 4

“In every difficult or troubled time, a student ought to be able to look around and see a teacher standing in his or her corner.”

[1] Please note that the word "handicap" is used throughout this article when quoting Section 504 because the language of Section 504 has not changed.

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