Helping You Become All You are Capable of Becoming
The Federal Laws Governing Education for Exceptional Students
13. Federal Laws Governing Education for Exceptional Students Tools for Getting Parents Involved in the Exceptional Education Process By James J. Messina, Ph.D. & Constance M. Messina, Ph.D.
Federal laws are usually designated like PL 94-142. PL means public law, the first two numbers (94) indicate the number of the Congress during which the law w as passed. The last three numbers indicate the piece of legislation passed during that Congress. For example: PL 94-142 was the 142nd piece of legislation passed by the 94th Congress. PL 98-199 was the 199th piece of legislation passed by the 98th Congress. The Congressional number lasts for a two year period and changes every even year . For example: the 98th Congress was 1983-84.
The IDEA and other Amendments to Public Law 94-142
Public Law 94-142 was enacted by Congress in 1975. The regulations implementing this law were published in 1977. The law and the regulations stated that a free appropriate public education would be available for all handicapped children aged 3-21, no later than September 1, 1980. (An exception was made for children ages 3, 4, and 5 if it was inconsistent with state law.)
In 1983, the programs under the Education of the Handicapped Act (EHA) were amended by PL 98-199 to encourage expanding the services to preschool aged children.
In 1986, EHA was amended through PL 99.457. The age of eligibility for all children with disabilities was lowered to 3 years of age. This law established the Handicapped Infants and Toddlers Program (Part H). This program was directed to the needs of children, from birth to their third birthday.
In 1990, Education of the Handicapped Act Amendments of 1990 (PL 100-476) which changed the name of the EHA law to Individuals with Disabilities Education Act (IDEA). New program to improve the services to children called transition services and assistive technology services were now required to be included in an IEP. Rehabilitation counseling and social work were included as related services under the law. The rights under the law were expanded to more fully include children with autism and traumatic brain injury.
KEY Provisions of the IDEA:
1. Identification- the state and local education agencies must actively seek out and identify children who have special education needs (Child Find)
2. Evaluation - A child must be evaluated appropriately prior to placement. All methods used for testing and evaluation must be in the primary language or ''mode of communication'' of the child. No one test may be the determining factor for placement.
3. Individualized Education Plan (IEP) - An IEP must be prepared for each child based on their individual educational needs.
4. Parents are equal participants in the decision-making process and students may be participants in their IEP development.
5. Related Services - shall be provided on an individualized basis to assist the child to benefit from special education.
6. Least Restrictive Environment (LRE) - Each child shall be educated to the maximum extent appropriate with children who are non-handicapped and children should be educated in more restrictive (different) settings only when less restrictive alternatives are not appropriate.
7. Private School - When children are placed in private schools by state or local education agencies in order to receive an appropriate education, this must be done at no cost to parents; private school programs must meet standards set by law.
8. Early Intervention and Preschools - The IDEA now makes early intervention services available to children ages 0-5 years.
9. Due Process - rights of parents and children must be guaranteed by states and localities; including notice, right to hearing, and appeal procedures.
10. Advisory Board - Each state must set up an advisory board, including handicapped individuals, teachers and parents of handicapped children.
11. Funds - IDEA/ PL. 94-142 provides flow through funds per child per year to supplement state and local program efforts. Funds may be withheld for non-compliance. Payments by the state to local school districts may also be suspended for non-compliance.
12. Records - Parents have access to their child's educational records and can request that they be amended.
Section 504 of Public Law 93-122 - The Rehabilitation Act of 1973
The law was created to insure affirmative action in employment and non-discrimination because of handicapping conditions and was amended in 1974, 1978, and 1984. It is usually referred to by specific sections which address different issues:
Section 501 - Employment of Handicapped Individuals
Section 502 - Architectural and Transportation Board Compliance
Section 503 - Employment under Federal Contract
Section 504 - Non-discrimination under Federal Grants Section 504:
This section reads as follows: ''No otherwise qualified handicapped individual . .. shall, solely by reason of his 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.''
Major Differences in IDEA/PL 94-142 and Section 504:
1. Enforcement As an education statute, enforcement of IDEA/PL 94142 is administered by the Office of Special Education of the U.S. Department of Education and each state department of education that subscribes to PL 94142. Section 504 enforcement, because Section 504 is a civil statute, is the responsibility of the Office for Civil Rights of the U.S. Department of Education.
2. Financial Assistance IDEA/PL 94142 provides federal financial assistance in the form of grants to assist in education of handicapped children and to assist in monitoring these programs. Section 504, as a civil rights law, is concerned with a broader range of issues, including employment discrimination, education at all levels and accessibility. Section 504 does not furnish federal funds for implementation of its requirements.
However, because Section 504 covers recipients of federal funds and IDEA/PL 94142 subscribers are recipients of federal funds, all recipients of IDEA/PL 94142 funds are required to meet the mandates of Section 504. Even though New Mexico is the only State that has ever elected not to receive PL 94-142 funds, it was mandated to meet the requirements of Section 504 because it received other federal funds.
3. Definition of Handicap Section 504 deals with a very broad definition of handicapped persons which includes both actual and perceived handicaps, as well as some conditions that are not normally considered to be handicapping conditions (in educational terms), such as drug addiction and alcoholism. This definition includes persons who may be amputees, temporarily handicapped, wheelchair-bound, or have cancer or other serious physical diseases that do not need special education services. In contrast, the definition of a "handicapped child" in IDEA/ PL. 94-142 is much more specific and focuses on educational and medical conditions that have been appropriately identified and evaluated. Section 504 has been found to cover the diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and children with ADHD are able to have a 504 Plan which is an IEP for this condition.
4. Age Requirements One of the specific criteria of Section 504 is that services be provided to handicapped persons to ''whom state is required to provide a 'free appropriate education' under Section 612 of the Education of the Handicapped Act.'' IDEA/ PL 94142 is more specific than Section 504 in that it specified the ages when services must be provided.
Family Educational Rights and Privacy Act of 1974 PL 93-380 FERPA
(Also known as the Buckley Amendment)
Provides for confidentiality of all school records. Your child's records are private. The Buckley Amendment allows access to information that is part of public records.
Public Law 98-524 (Carl D. Perkins Vocational Education Act)
The Vocational Educational Act (94482) was passed in 1963, but a new law governing federally funded vocational education programs was enacted on October 19,1984.
The key provisions of this act are:
1. Insures that students gain both broader academic skills and experience in all aspects of an entire industry or enterprise, i.e., the skills needed to participate actively in running a business, not just to fit into one narrow production slot.
2. States must assess the:
quality of vocational education programs
the current and projected occupational needs and the current and projected demand for general occupational skills
the needs of students, including adults, to determine how to best improve students skill level in light of the State's occupational and skill requirements
the special needs of handicapped students, disadvantaged, adults needing training or retraining, single parents or homemakers, individuals who participate in programs designed to eliminate sex bias and stereotype and criminal offenders who are serving in correctional institutions. The special needs must be assessed in terms of access to vocational education and vocational services in terms of labor market needs
The relationship between programs offered and the jobs available and to new and emerging technologies
3. The state board shall, with respect to vocational education services and activities for handicapped individuals and disadvantaged individuals, provide assurances that:
equal access will be provided to handicapped and disadvantaged individuals in recruitment, enrollment, and placement activities
equal access will be provided to handicapped and disadvantaged individuals to the full range of vocational programs available to non-handicapped and non-disadvantaged individuals, including occupationally specific courses of study, cooperative education, and apprenticeship programs
vocational education programs and activities for handicapped individuals will be provided in the least restrictive environment in accordance with IDEA and will, whenever appropriate, be involved as a component IEP of the individualized education plan.
vocational education planning for handicapped individuals will be coordinated between appropriate representatives of vocational education and special education.
each local educational agency shall, with respect to that portion of the allotment distributed in accordance with section 203(a) for vocational education services and activities for handicapped individuals and disadvantaged individuals, provide information to handicapped and disadvantaged students and parents of such students concerning the opportunities available in vocational education at least one year before the students enter the grade level in which vocational education programs are first generally available in the State, but in no event later than the beginning of the ninth grade, together with the requirements for eligibility for enrollment in such vocational education programs
PL 99-457 (Amendments to 94-142)
99-457 authorized a new preschool program for children three through five years old; and an early intervention program for handicapped infants and toddlers from birth through age two.
What the law provided
Preschool age (3 - 5)
Expanded coverage of 94-142 to mandate a preschool program to serve children three through five years old.
Children in this age group will not need to be labeled with a specific disability.
Programs can range from part-day, home-based, or full-day, center-based, depending on child's unique needs.
Though administered through state and local agencies, may be contracted out to other public and private programs.
Early Intervention (0-2)
Established new Early Intervention Grant program to serve handicapped infants and toddlers from birth through two years old.
Handicapped infants and toddlers means children from birth through two year who need early intervention because they are:
experiencing developmental delays in one or more of the following areas: cognitive, physical, language and speech, psycho-social, or self-help skill development, or
have a diagnosed physical or mental condition which has a high probability of resulting in a developmental delay, or
Early Intervention Services include:
Family training, counseling, and home visits
Speech pathology and audiology
Medical Services only for diagnosis/evaluation
Early identification, screening, and assessment
EXCERPTS FROM the IDEA and PL 94.142 STATUTES AND REGULATIONS
Definition - Handicapped Children
(Reg.)121a.5(a) As used in this part, the term "handicapped children" means those children evaluated in accordance with 121a.530 121a.534 as being mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, other health impaired, deaf-blind, multi-handicapped, or as having specific learning disabilities, who because of those impairments need special education and related services.
Free Appropriate Public Education
(Statute)601c It is the purpose of this Act to assure that all handicapped children have available to them, within the time periods specified in section 612(2)(B), a free appropriate public education which emphasizes special education and related. services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.
(Statute)612(5)(c) Procedures to assure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of handicapped children wil1 be selected and administered so as not to be racially or culturally discriminatory. Such materials or procedures shall be provided and administered in the child's native language or mode of communication unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child.
(Reg.)121a.531 Before any action is taken with respect to the initial placement of a handicapped child in a special education program, a full and individual evaluation of the child's education needs must be conducted in accordance with the requirements of 121a532.
(Reg.)121a.533(a) In interpreting evaluation data and in making placement decisions, each public agency shall:
(3) Insure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.
(Reg.)121a.552 Placements. Each public agency shall insure that:
(a) Each handicapped child's educational placement:
(1) Is determined at least annually.
(2) Is based on his or her individualized education program, and
(3) Is as close as possible to the child's home.
(Reg.121a.534(b) Each State and local educational agency shall insure:
(b) That an evaluation of the child, based on procedures which meet the requirements under 121a.532, is conducted every three years or more frequently if conditions warrant or if the child's parent or teacher requests an evaluation.
Least Restrictive Environment
(Reg)121a.550(b) Each public agency shall insure:
(1) That to the maximum extent appropriate handicapped children, including children in public or private institutions or other care facilities are educated with children who are not handicapped, and (2) That special classes, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
Kinds of Exceptional Student Education Programs
(Statute)602(16) The term ''special education'' means specifically designed instruction at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.
(Reg.)121a.551(a) Each public agency shall insure that a continuum of alternative placements is available to meet the needs of handicapped children for special education and related services.
(b) The continuum required under paragraph (a) of this section must:
(1) Include the alternative placements listed in the definition of special education under
121a.13 of Subpart A (instruction in regular classes, special classes, special schools, home
instruction, and instruction in hospitals and institutions) and
(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.
Individualized Education Program (I.E.P.)
(Statute)602(19) The term ''individualized education program" means a written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such a child, and whenever appropriate, such child, which statement shal1 include: a statement of the present levels of educational performance of such child, a statement of annual goals, including short-term instructional objectives, a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, the projected date for initiation and anticipated duration of such services, and appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.
(Reg.)121a.343(d) Review. Each public agency shall initiate and conduct meetings to periodical ly review each child's individualized education program and if appropriate revise its provisions. A meeting must be held for this purpose at least once a year.
(Reg.121a.344(a) General. The public agency shall insure that each meeting includes the following participants:
(1) A representative of the public agency, other than the child's teacher, who is qualified to provide, or supervise the provision of special education.
(2) The child's teacher.
(3) One or both of the child's parents, subject to 121a.345.
(4) The child, where appropriate.
(5) Other individuals at the discretion of the parent or agency.
(Reg.121a.345 (a) Each public agency shall take steps to insure that one or both of the parents of the handicapped child are present at each meeting or are afforded the opportunity to participate, including:
(1) Notifying parents of the meeting early enough to insure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) The notice under paragraph (a)(1) of this section must indicate the purpose, time, and location of the meeting, and who will be in attendance. If neither parent can attend, the public agency shall use other methods to insure parent participation, including individual conference telephone calls.
Parent Participation, Notice and Consent
(Reg.)121a.504 (a) Notice. Written notice which meets the requirements under 121a.505 must be given to the parents of a handicapped child a reasonable time before the public agency: (1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child, or (2) Refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child.
(b) Consent. (1) Parental consent must be obtained before: (I) Conducting a pre-placement evaluation; and (ii) Initial placement of a handicapped child in a program providing special education and related services. (2) Except for pre-placement evaluation and initial placement, consent may not be required as a condition of any benefit to the parent or child.
c. Procedures where parent refuses consent. (1) Where State law requires parental consent before a handicapped child is evaluated or initially provided special education and related services, State procedures govern the public agency in over-riding a parent's refusal to consent.
Due Process Hearing
(Statute)615(b)(2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.
(Reg.)121a.503(a)(1) General. (1) The parents of a handicapped child have the right under this part to obtain an independent educational evaluation of the child subject to paragraphs (b) through (e) of this section.
(Reg.)121a503(a)(3)(I) "Independent educational evaluation" means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in questions.
(Reg.)121a503(b) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. However, the public agency may initiate a hearing under 121a.503 of this subpart to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.
(Statute)617c. The Secretary shall take appropriate action, in accordance with the provisions of Section 438 of the General Education Provisions Act, to assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Commissioner and by the State and local educational agencies pursuant to the provisions of this part.
(Reg.)121a.562(b) The right to inspect and review educational records under this section includes:
(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records, and
(3) The right to have a representative of the parent inspect and review the records.
(Reg.)121a.571(a) Parental consent must be obtained before personally identifiable information is:
(1) Disclosed to anyone other than officials of participating agencies collecting or using the information under this part, subject to paragraph (h) of this section;
(Reg.)121a.573(a) The public agency shall inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child.
(b) The information must be destroyed at the request of the parents . . .
(Reg.)121a.567(a) A parent who believes that information in education records collected, maintained, or used under this part is inaccurate or misleading or violates the privacy or other rights of the child, may request the participating agency which maintains the information to amend the information.