CENTER FOR LAW AND EDUCATION

 

Reply to:                                                                                 Main Office:

515 Washington Street, Third Floor                                          1875 Connecticut Ave., NW

Boston, Massachusetts   02111                                                Suite 510

Phone: 617/451-0855                                                              Washington, D.C.  20009

Fax: 617/451-0857                                                                  Phone: 202/986-3000

Fax: 202/986-6648

                                               

                                                                                                           

Overview:

 

Education Rights of Children With Disabilities

Under The

Individuals With Disabilities Education Act

And

Section 504 of the Rehabilitation Act of 1973

Eileen L. Ordover

Revised May, 1994

Modified December, 1998 to reflect the IDEA Amendments of 1997

Modified July, 1999 to reflect IDEA regulations issued March, 1999*

 

 

I.                   Statutory Framework

 

 

A.                                                   The Individuals with Disabilities Education Act or "IDEA"

 

            The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et seq., originally enacts as Public Law 94-142, is the preeminent federal statute addressing the education rights of children and youth with disabilities.1  IDEA provides federal funds to assist state and local education agencies in meeting the needs of students with disabilities.  In exchange, states and local school systems must abide by the Act’s substantive and procedural mandates.

           

            No state or local education agency can receive such funding unless the state has demonstrated to the satisfaction of the U.S. Department of Education that it has in effect policies and procedures to ensure that the state’s education system meets a number of conditions.  These include ensuring that each child with a disability within the state is provided with a free public education specifically tailored to meet his or her


individual needs.  Also required are procedural due process safeguards in evaluation, placement decisions, hearings, and appeals, as well as safeguards for student records related to this process.  In addition, IDEA explicitly addresses school discipline and students with disabilities.2

 

            IDEA is more than a funding statute.  For state and local education agencies, it is both a source of funds and a source of obligations.  Moreover, the Act guarantees parents and guardians of children with disabilities the right to secure the provision of a free appropriate public education through both administrative and judicial remedies.

 

 

B.                 Section 504 of the Rehabilitation Act of 1973

 

                        Section 504 of the Rehabilitation Act of 19733 is a civil rights statute designed to prohibit discrimination on the basis of disability in federally-funded activities.  Section 504 as amended provides in relevant part that:

 

"No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefit of, or be subject to discrimination under any program or activity receiving federal financial assistance..."

 

29 U.S.C. §794(a).  Because virtually all local schools and school districts receive federal funds of some sort, §504 provides an additional tool for assuring that school-age children with disabilities receive the education to which they are entitled.

 

            The U.S. Department of Education regulations implementing §504 in the preschool, elementary and secondary education context operate in two basic ways: (1) by generally prohibiting certain practices as discriminatory ones, and (2) by compelling school districts and other recipients to take certain affirmative steps to ensure that students with disabilities receive an appropriate public education.4  As discussed in further detail below, the latter include requirements for identification, provision of free appropriate education, evaluation and placement, procedural safeguards, and non-academic services.

 

 

II.                  Eligibility, Identification and Program Responsibility

 

A.                    Population Protected

 

1.         IDEA

 

            For purposes of IDEA, an eligible “child with a disability” is a child

 

"with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance..., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities...who, by reason thereof, needs special education and related services."5

 

The regulations implementing IDEA define each of these disabilities in further detail.6

            At a the discretion of the state and local education agency, the term "child with a disability" may also include 3 through 9 year olds who are "(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in...physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) who, by reason thereof need special education and related services."7  States have the option of adopting “developmental delay” as an eligibility category.  However, even if a state does so, individual school systems within the state do not have to use it unless they so choose.  However, a local school system may not use the “developmental delay” category unless the state has adopted and defined this category.8

 

            IDEA does not allow for the possibility that some children are too severely disabled to be served: states and school systems may not refuse to provide educational services on the ground that a child is too severely disabled to benefit from them.9

 

 

2.         §504

 

            For purposes of §504, a protected "individual with a disability" is one

 

"who i) has a physical or mental impairment which substantially limits one or more major life activities; ii) has a record of such impairment; or iii) is regarded as having such an impairment."10

 

Virtually all children who meet IDEA eligibility criteria will fall within this definition and so be protected by §504 as well.  Like IDEA, the §504 regulations entitle children to a free appropriate public education, "regardless of the nature or severity of the person's handicap."11 

 

            The §504 definition of an "individual with a disability," however, is broader than the operative IDEA definition.  A child who does not fall within the IDEA definition of a "child with a disability" may nevertheless be an "individual with a disability" protected by §504 and its implementing regulations.12

                                                                                                           

            Section 504 protects only "otherwise qualified" individuals from disability-based discrimination.  For purposes of public preschool, elementary and secondary school services, an "individual with handicaps" is "otherwise qualified," and thus protected by §504, if he or she is: (1) of any age during which nonhandicapped persons are provided such services, (2) of any age during which it is mandatory under state law to provide such services to handicapped persons, or  (3) someone IDEA requires the state to provide with a free appropriate education.13 

 

 

B.                                                     Age Ranges

 

            States which accept federal monies under IDEA are required to serve all children with disabilities ages 3 through 21 years of age unless, with respect to the age group 3 through 5 and 18 through 21, this requirement is inconsistent with a state law or practice or a court order respecting the provision of public education to children or youth in these age ranges.14  However, a 1997 amendment to IDEA allows states to refuse to serve a limited subgroup of the youth aged 18 through 21 who are incarcerated in adult correctional facilities.15

 

 

C.                                                     Identification of Students with Disabilities

            Both IDEA and the regulations implementing §504 impose obligations upon state education agencies and local school districts to identify, locate, and evaluate children with disabilities.16

 

 

D..                   Local and State Program Responsibility 17

 

            Under IDEA, local school districts are responsible for providing and maintaining appropriate special education programs and placements for children with disabilities in accordance with standards established by the state board of education.  In general, a local school district may meet this responsibility in a variety of ways, including by providing the necessary programs and related services itself; by arranging for the provision of programs and services by cooperative agreement or contract with one or more other local school districts, or with a county or joint vocational school district; or by arranging through cooperative agreement or contract with a private agency or school.

 

            The state educational agency is ultimately responsible for ensuring that all children with disabilities receive a free appropriate public education that meets IDEA requirements, and that all local school systems,  other public agencies in the state involved in educating children, and private schools accepting publicly-placed students comply with the Act.18  This obligation includes (a) ensuring that all educational programs for children with disabilities, including those of local educational agencies and other state agencies, meet the requirements of federal law; (b) monitoring and evaluating IEPs and programs and providing written complaint procedures; (c) correcting deficiencies in program operations that are identified through monitoring and evaluation; (d) insuring proper disbursement of and accounting for federal funds paid to the state under the IDEA; and (e) making annual reports on children served.19  In addition, where a local school system is unable to  establish and maintain (or contract for) programs that meet IDEA requirements, the state educational agency must itself directly provide special education and related services to affected children.20

 

                                                                                                                       

III.                The Content and Quality of Education

 

            A.        "Free Appropriate Public Education"

 

            IDEA requires each state to have in effect policies and procedures to ensure that all children with disabilities in the state have available to them a "free appropriate public education."21  The §504 regulations likewise require public school systems to provide children with disabilities a free appropriate public education.22

 

1.         IDEA

 

            Under IDEA, "free appropriate public education" means "special education and related services" that --

 

 

•                      are provided at public expense, under public supervision, and without charge;

•                      meet the standards of the state educational agency;

•                      include an appropriate preschool, elementary, or secondary school education in the state involved; and

•                      are provided in conformity with an Individualized Education Program.23

 

            "Special education," in turn, means "...specially designed instruction...to meet the unique needs of a child with a disability....”24  “Specially designed instruction” means “adapting...the content, methodology, or delivery of instruction...[t]o address the unique needs of the child that result from...disability...and..[t]o ensure access...to the general curriculum, so that he or she can meet the educational standards...that apply to all children.”25

 

            Note that under these definitions, "special education" is a kind of instruction, not a place: once instruction for an individual child has been tailored as required to address his or her needs, it may, again depending upon the child's needs, be provided in a variety of settings, with consideration first being given to a regular education classroom.  Thus a school district cannot fulfill its obligation to provide "special education" by, for example, automatically placing a child with a particular disability in a particular classroom or program designated to serve that group.26   In addition to circumventing IDEA requirements, such conduct constitutes illegal discrimination under §504.27 

 

            For purposes of IDEA, "related services" are defined as:

 

"...transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, 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."28

 

This definition comes from the IDEA statute.  The IDEA regulations give “parent counseling and training” as an additional example of a related service that may be required.29

 

            The lists of related services in the statute and regulations offer examples only.  They are not meant to be exhaustive.  If a child needs a particular service in order to benefit from special education and the service is a developmental, supportive or corrective one, it is also a "related" one and should be provided regardless of whether it is expressly listed in IDEA or its regulations.30  For some children, for example, a part or full time aide might constitute a required related service, as might certain equipment or assistive technology, such as a computer or tape recorder.31

 

 

2.                   §504                                                                

 

            The free appropriate public education required by §504 may consist of "regular or special education and related aids and services."32  The §504 regulations do not define these terms, but do provide that special education and related services developed and delivered in accordance with IDEA dictates will ordinarily satisfy the §504 requirement as well.33

 

3.                   "Free" Means Free

3.                   " \l 3

5.                               Whether due pursuant to IDEA or §504, all special education and related services must be provided at public expense, without cost to child, parent or guardian.34  Parents cannot be required to use their child's social security or SSI benefits to fund services owed them under these statutes.35

6.                    

7.                               School districts may not require a parent to use private health insurance to pay for or defray the cost of any services necessary to provide a child with a free appropriate public education under IDEA; schools may access private insurance only with the parent’s informed consent.36  Each time a school would like to use a family’s private insurance, it must obtain informed consent and explain to the child’s parents that they may refuse to allow their insurance to be used, and that any such refusal will not relieve the school of its duty to ensure that the child receives all necessary services at no cost to the family.37

8.                    

9.                               The rules under IDEA regarding the use of insurance are different for children who have public insurance, such as Medicaid.  They do not expressly require schools to obtain informed consent from a parent before tapping a child’s Medicaid or other public insurance.38  However, before doing so, the school system must ascertain that tapping the child’s public health benefits will not

10.                

•                      decrease available lifetime coverage or any other benefit,

•               &