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Source: Wikipedia, 1/20/2011

Background

Before the EHA statute was enacted in 1975, U.S. public schools educated only 1 out of 5 children with disabilities. Until that time, many states had laws that explicitly excluded children with certain types of disabilities from attending public school, including children who were blind, deaf, and children labeled "emotionally disturbed" or "mentally retarded." At the time the EHA was enacted, more than 1 million children in the U.S. had no access to the public school system. Many of these children lived at state institutions where they received limited or no educational or rehabilitation services. Another 3.5 million children attended school but were “warehoused” in segregated facilities and received little or no effective instruction.

As of 2006, more than 6 million children in the U.S. receive special education services through IDEA.

 


Eligibility for services

Having a disability does not automatically qualify a student for special education services under the IDEA. The disability must result in the student needing additional or different services to participate in school.

IDEA defines a "child with a disability" as 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; AND, who... [because of the condition] needs special education and related services."

Children with disabilities who qualify for special education are also automatically protected by Section 504 of the Rehabilitation Act of 1973 and under the Americans with Disabilities Act (ADA). However, all modifications that can be provided under Section 504 or the ADA can be provided under the IDEA if included in the student's IEP.

Students with disabilities who do not qualify for special education services under the IDEA may qualify for accommodations or modifications under Section 504 and under the ADA. Their rights are protected by due process procedure requirements.

The zero reject rule was affirmed in Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.1985) and Timothy W. v. Rochester School District 875 F.2d 954 (1st Cir. 1989). The courts have ruled that even if the student is completely incapable of benefiting from educational services and all efforts are futile—even if the child is unconscious or in a coma—the school is still required to provide educational services to the child.

IEPs


Individualized Education Program

The act requires that public schools create an Individualized Education Program (IEP) for each student who is found to be eligible under both the federal and state eligibility/disability standards. The IEP is the cornerstone of a student's educational program. It specifies the services to be provided and how often, describes the student's present levels of performance and how the student's disabilities affect academic performance, and specifies accommodations and modifications to be provided for the student.

An IEP must be designed to meet the unique educational needs of that one child in the Least Restrictive Environment appropriate to the needs of that child. That is, the least restrictive environment in which the child learns. When a child qualifies for services, an IEP team is convened to design an education plan. In addition to the child’s parents, the IEP team must include at least one of the child’s regular education teachers (if applicable), a special education teacher, someone who can interpret the educational implications of the child’s evaluation, such as a school psychologist, any related service personnel deemed appropriate or necessary, and an administrator or CSE (Committee of Special Education) representative who has adequate knowledge of the availability of services in the district and the authority to commit those services on behalf of the child. Parents are considered to be equal members of the IEP team along with the school staff. And of course, parents have fundamental rights as parents. Based on the full educational evaluation results, this team collaborates to write an IEP for the individual child, one that will provide a free, appropriate public education. The required content of an IEP is described in Individualized Education Program. Alternatively, parents may prepare an IEP if the school's IEP is not fair to the child.


Related services

The definition of related services in the IDEA includes, but is not limited to: transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, music therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and *mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.

Free Appropriate Public Education

Guaranteed by the Individuals with Disabilities Education Act (IDEA), FAPE is defined as an educational program that is individualized to a specific child, designed to meet that child's unique needs, and from which the child receives educational benefit. To provide FAPE, schools must provide students with an “… education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”

Some of the criteria specified in various sections of the IDEA statute includes requirements that schools provide each disabled student an education that:

  • Is designed to meet the unique needs of that one student
  • Provides “ …access to the general curriculum to meet the challenging expectations established for all children” (that is, it meets the approximate grade-level standards of the state educational agency)
  • Is provided in accordance with the Individualized Education Plan (IEP) as defined in 1414(d)(3).
  • Results in educational benefit to the child.


Least Restrictive Environment

The U.S. Dept. Education, 2005a regulations implementing IDEA states: "...to the maximum extent appropriate, children with disabilities including children in public or private institutions or care facilities, are educated with children who are nondisabled; and special classes, separate schooling or other removal of children with disabilities from 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."

Simply put, the LRE is the environment most like that of typical children in which the child with a disability can succeed academically (as measured by the specific goals in the student's IEP). This refers to the two questions decided upon in Daniel R. R. v. State Board of Education, 874 F.2D 1036 (5TH CIR. 1989).

This court, relying on Roncker, also developed a two-part test for determining if the LRE requirement is met. The test poses two questions:

  1. Can an appropriate education in the general education classroom with the use of supplementary aids and services be achieved satisfactorily?
  2. If a student is placed in a more restrictive setting, is the student "integrated" to the "maximum extent appropriate"? (Standard in AL, DE, GA, FL, LA, MS, NJ, PA, TX).

Discipline of a child with a disability

Pursuant to IDEA, discipline of a child with a disability must take that disability into account. For example, if a child with Asperger syndrome is sensitive to loud noises, and if the child runs out of a room filled with loud noises, any discipline of that child for running out of the room must take into account the sensitivity and whether appropriate accommodations were in place. According to the United States Department of Education, for children with disabilities who have been suspended for 10 days total for each school year, including partial days, the local education agency (LEA) must hold a manifestation determination hearing within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct following either the Stay Put law which states that the child shall not be moved from his or her current placement or interim services in an alternative placement if the infraction was deemed to cause danger to other students. The LEA, the parent, and relevant members of the individualized education program (IEP) team (as determined by the parent and LEA) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was:

  • Caused by, or had a direct and substantial relationship to, the child's disability; or
  • The direct result of the LEA's failure to implement the IEP.

If the LEA, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the child’s disability, the IEP team shall:

  • Conduct a functional behavioral assessment and implement a behavioral intervention plan for such child, provided that the LEA had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in Section 615(k)(1)(C) or (G);
  • In the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
  • Except as provided in Section 615(k)(1)(G), return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavior intervention plan.

If it is determined that a student's behavior is a manifestation of his or her disability, then he or she may not be suspended or expelled. However, under IDEA 2004,if a student "brings a weapon to school or a school function; or knowingly possess, uses, or sells illegal drugs or controlled substances at school or a school function"; or causes "serious bodily injury upon another person," he or she my be placed in an interim alternate educational setting (IAES) for up to 45 school days. This allows the student to continue receiving educational services while the IEP team has time to determine the appropriate placement and the appropriate course of action including reviewing the FBA and the BIP.


Child Find

Public school districts are responsible for identifying all students with disabilities within their districts, regardless of whether they are attending public schools, since private institutions may not be funded for providing accommodations under IDEA.

Procedural safeguards

IDEA includes a set of procedural safeguards designed to protect the rights of children with disabilities and their families, and to ensure that children with disabilities receive a FAPE. The procedural safeguards include the opportunity for parents to review their child's full educational records; full parent participation in identification and IEP team meetings; parent involvement in placement decisions; Prior Written Notice; the right of parents to request independent educational evaluations at public expense; Notice of Procedural Safeguards; Resolution Process; and objective mediation funded by the state education agency and impartial Due Process Hearings. IDEA guarantees the following rights to parents:

  • Right to be informed in writing of the Procedural Safeguards (There is a booklet)
  • Right to review all educational records
  • To be equal partners on the IEP team, along with the school staff
  • To participate in all aspects of planning their child’s education
  • To file complaints with the state education agency
  • Request mediation, or a due process hearing
  • At this time, parents may present an alternative IEP and their witnesses (experts and others), to support their case.
  • These hearings are Alternative Dispute Resolution (ADR) hearings and can be appealed. This is not a trial.

 


Early intervention

Part C of the IDEA requires that infants and toddlers with disabilities receive early intervention services from birth through age 3. These services are provided according to an Individualized Family Service Plan (IFSP. In contrast, Part B of the IDEA requires that children with disabilities, from age 3 to 21, are provided a free appropriate public education.

Department of Education Regulations

In addition to the Federal law, the U.S. Department of Education publishes regulations that clarifies what the law means. States may add more provisions to further regulate how schools provide services, but they cannot reverse any provision specifically included in the federal statute.

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Dr. Nomura is a Psychologist and Behavior Analyst in Cypress, Texas. Providing: Therapy, Psychotherapy, Psychological Therapy, Counseling, Assessment, Evaluation, Consultation, Intervention. Located in Cypress, Texas. Also serving: Houston, Katy, Tomball, Klein, Woodlands, Spring, CyFair, Waller