HomeIndividuals with Disabilities Education Act
The IDEA behind the IEP
In 2004 Congress passed the Individuals with Disabilities Education Act (“IDEA”), and authorized the Department of Health and Human Services to issue regulations to implement the law. The final regulations were issued in 2006 in the Code of Federal Regulations. In the summary below you will find see references that look like this: 34 C.F.R. §300.1. Translated into English (Title 34 of the Code of Federal Regulations, Section 300.1), this tells you where to find the specific section being discussed, both in the physical book itself, which is available in law libraries, generally, and in some public libraries, or online.
Here is a link to the Federal Government’s Web site for these regulations:
IDEA Government Regulations
The law requires every public school in the United States to provide free, appropriate public education (called “FAPE” in the regulations) to every student between the ages of 3 and 21 who has a disability. In order to provide that education, your school is required to prepare an Individualized Education Plan (“IEP”) tailored to the needs of your child, as long as your child meets the requirements, both federal and state, for special education. The phrase “IEP” refers to both the educational program/plan for your child, and to the written document that describes the program/plan.
In order to develop an IEP, your child first has to be evaluated to determine eligibility. He or she will be assessed in all areas related to his/her specific condition(s), including access to the school’s general curriculum; how the disability affects your child’s learning and what your child’s current level of performance is. Part of the process is to develop goals and objectives intended to make the biggest difference for your child, and then choosing a school placement that is in the least restrictive environment. As a parent you are an essential, integral, and legally mandatory part of the evaluation.
The IEP has to be tailored to your child’s needs, as identified by the evaluation process. However, it seems fairly clear that the IEP won’t be based just on your statements and beliefs about what is best for your child, but rather on the totality of all the information gathered in the evaluation. The IEP is intended to help teachers and providers of related services understand your child’s condition and how the condition affects his or her learning process.
NOTE: The regulations issued by the Department of Health and Human Services, which are lengthy, complex, and over 300 pages long when all of the comments and analyses are included. What follows, therefore, is not an analysis of every section and sub-section. Instead, it’s a summary of the sections we believe are most likely to be of help to you in starting to understanding the rights and obligations of your school and you and your child. But don’t just take our word for it. Always check for yourself. You can download the complete Regulations (with all comments and analysis), or download just the Regulations themselves below.
Regulations with Comments and Analysis
Just the Regulations
NOTE: The phrase “your school,” as used in this section, is shorthand for whatever the particular entity might be in your locale (board of education, school district, city, county, etc.) which has the legal obligation to conform to IDEA and the Regulations.
Purpose & Definitions - Sections 300.1-300.45
The purposes of the Federal Regulations relating to IDEA are :
(a) To ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes
special education and related services designed to meet their unique
needs and prepare them for further education, employment, and
independent living;
(b) To ensure that the rights of children with disabilities and their parents are protected;
(c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate children with disabilities.
34 C.F.R. §300.1
The Regulations apply to each state that receives Federal funding, to
all political subdivisions of the state that engage in educating
children with disabilities, including the primary state educational
agency, local educational agencies such as school districts or charter
schools, state departments of mental health and welfare; state schools
for deaf or blind children, and state and local juvenile and adult
correctional facilities. [34 C.F.R. §300.2]
A child with a
disability is a child needs special education or related services
because he or she has been evaluated pursuant to the Regulations, and is
determined to have mental retardation, a hearing impairment (including
deafness), speech or language impairment; a visual impairment (including
blindness); a serious emotional disturbance; an orthopedic impairment,
autism, traumatic brain injury, an other health impairment, a specific
learning disability, deaf blindness, or multiple disabilities. [34
C.F.R. §300.8]
In the above definition, an “orthopedic
impairment” is further defined as “a severe orthopedic impairment that
adversely affects a child’s educational performance. This includes
impairments caused by a congenital anomaly, by disease, or other causes
that include cerebral palsy, amputations, and fractures or burns that
cause contractures. [34 C.F.R. §300.8(c)(8)]
The Regulations
speak from time to time of a parent’s informed consent. That means
that you have been fully informed about all information that is relevant
to the activity for your consent being sought; that the information has
been provided in a way you can understand (if your native language is
Spanish, the information should be provided in Spanish); that you have
not only understood but you have agreed in writing to the activity; that
the consent form describes the activity and lists records (if any) that
will be released and to whom. Your consent is voluntary and can be
revoked at any time. If you do revoke your consent, it only works
“forward.” Revocation does not invalidate any action taken after your
consent but before you changed your mind. [34 C.F.R. §300.9]
For purposes of the Regulations you are a “parent” if you are the
biological or adoptive parent of a child with disability; if you are a
foster parent (so long as State law permits you to act as if you were a
biological or adoptive parent); a guardian who is generally authorized
to act as a parent or is authorized to make educational decisions for
the child; an individual acting in the place of a biological or adoptive
parent with whom the child lives, such as a grandparent, step-parent or
other relative; an individual who is legally responsible for the
child’s welfare, or a surrogate parent appointed in accordance with the
law and the Regulations. Generally, if there is more than one person
who fits the definition of a parent, the biological or adoptive parent
is presumed to be the parent under the Regulations, unless a court order
gives someone other than a biological or adoptive parent the right to
act as the parent of the child, or to make educational decisions for the
child. [34 C.F.R. § 300.30]
Your child with a disability is
entitled to “free appropriate public education” (referred to as “FAPE”
in the Regulations). This means special education and related services
are provided at public expense, under public supervision and direction,
and without charge to you. The FAPE has to meet the standards of the
state’s primary education agency and of the Regulations. It must
include an appropriate preschool, elementary school or secondary school
education in your state, and the FAPE must be provided in conformity
with the “individualized education program” (“IEP”) standards set in the
Regulations. [34 C.F.R. § 300.17]
An IEP is a written
statement of the plan for educating an individual child with a
disability. which is developed, implemented, reviewed and revised in
accordance with the Regulations. [34 C.F.R. § 300.22]
An
“IEP Team” is a group of people specified by the Regulations who are
responsible for developing, reviewing or revising an IEP. [34 C.F.R. §
300.23]
A local educational agency (“LEA”) is a public board
of education or other public entity with the authority and obligation to
provide for public elementary or secondary schools within a specific
part of the State, such as a city, county, township, school district, or
a combination of school districts or counties. [34 C.F.R. § 300.28]
“Special education” means specially designed instruction, at no cost
to you, to meet the needs of a child with a disability, including
instruction conducted in the classroom, home, hospitals, institutions
and institutions, and in other settings; and instruction in physical
education. Special education will generally include speech pathology
services, or any other related service (as long as your state considers
the “other service” as part of special education); travel training and
vocational education. [34 C.F.R. §300.39]
“At no cost to
you” does not mean you cannot be charge incidental fees, if those fees
are normally charged to non-disabled students or their parents as part
of the school’s regular education program. [34 C.F.R. §300.39]
“Physical education” means the development of physical and motor
fitness; fundamental motor skills and patterns; skills in aquatics,
dance, and individual and group games and sports (including intramural
and lifetime sports), as well as special physical education, adapted
physical education, movement education, and motor development. [34
C.F.R. §300.39]
“Specially designed instruction” means
adapting, as appropriate to your child’s needs, the content,
methodology, or delivery of instruction, both to address the unique
needs of your child resulting from the disability; and to ensure your
child’s access to the school’s general curriculum, so that your child
can meet the educational standards in your state that apply to all
children. [34 C.F.R. §300.39]
“Travel training” means
providing instruction, as appropriate, to children with significant
cognitive disabilities, and any other children with disabilities who
require this instruction, to enable them to develop an awareness of the
environment in which they live; and learn the skills necessary to move
effectively and safely from place to place within that environment
(e.g., in school, in the home, at work, and in the community). [34
C.F.R. §300.39]
“Vocational education” means organized
educational programs that are directly related to the preparation of
individuals for paid or unpaid employment, or for additional preparation
for a career not requiring a baccalaureate or advanced degree. [34
C.F.R. §300.39]
FAPE Requirements - Sections 300.101-102 & 300.103-113
FAPE Requirements Generally
A FAPE
must be available to all children residing in the State between the ages
of 3 and 21, inclusive, including children with disabilities who have
been suspended or expelled from school. [34 C.F.R. §300.101(a)]
Each State has to ensure that the obligation to make FAPE available to
your child begins no later than his or her third birthday, and that an
IEP is in effect by that date. If your child’s birthday is in the
summer, the IEP team will decide when IEP services will begin. [34
C.F.R. §300.101(b)]
Even if your child is advancing from
grade to grade, and has not failed or been held back, the FAPE still has
to be provided if your child has a disability and needs special
education and related services. Any decision on eligibility must be
made on an individual basis by the group within the LEA responsible for
making eligibility determinations. [34 C.F.R. §300.101(c)]
Other FAPE Requirements
Your State has an
obligation to ensure there is no delay in implementing your child’s
IEP, even if the payment source for providing or paying for special
education and related services is in the process of being determined.
[34 C.F.R. §300.103]
Your State has an obligation to ensure
that your child has available the same variety of educational programs
and services that are available to children without disabilities,
including art, music, industrial arts, consumer and homemaking
education, and vocational education. [34 C.F.R. §310]
Your
state has an obligation to ensure that an IEP is developed, reviewed,
and revised for each child with a disability in accordance the
Regulations. [34 C.F.R. §300.112]
Least Restrictive Environment - Sections 300.114-120
Both your State and your LEA must ensure that to the maximum
extent possible, your child is to be educated with children who do not
have disabilities. Special classes, separate schooling, or some other
removal of your child from the regular environment is limited to
situations where the nature or severity of your child’s condition is
such that education in regular classes, even with the use of
supplemental aids and services, cannot be achieved satisfactorily. [34
C.F.R. §300.114]
Placements
When
deciding your child’s educational placement (including preschool
placement), your State and LEA have to make sure that the decision is
made by a group of people, including you and others who are
knowledgeable about your child, the meaning of the evaluation data, and
placement options, and that the decision is made in conformity with the
least restrictive environment standards of the Regulations. Your
child’s placement has to be determined no less than once a year, must be
based on your child’s IEP, and is as close as possible to your home.
Unless your child’s condition requires something else, your child should
be educated in the same school he or she would attend if not disabled.
Consideration must be given to any potential harmful effect on your
child or on the quality of services he or she needs. Your child cannot
be removed from education in age appropriate regular classrooms solely
because modifications in the general education curriculum may be
needed. [§ 300.116]
State Advisory Panel - Section 300.167
Your State is required to establish and maintain an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in your State. In Kansas that is the Special Education Advisory Council (SEAC).
Here is a link to their Web site: http://www.kcdcinfo.com/index.aspx?NID=109
In Missouri, the agency is the Missouri Special Education Advisory Panel (SEAP).
The link: http://www.dese.mo.gov/divspeced/Administration/AdvisoryPanel/94142mainpage.html [34 C.F.R. §300.167]
Prohibition on Mandatory Medication - Section 300.174
Neither your State nor your LEA can require you to obtain prescription medications under Schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for your child as a condition of attending school, receiving an evaluation under the Regulations, or receiving services. [34 C.F.R. §300.174]
Parental Consent - Section 300.300
If your school or school district wishes to evaluate your child
for IEP eligibility, you have to be provided with a notice in the manner
set out in the Regulations, and your informed consent must be obtained
before conducting the evaluation. Consenting to the evaluation does not
mean you consent to the provision of special education and related
services. Note: There are special provisions and procedures relating
to situations in which a child is a ward of the state and not living
with his/her parent(s), or if you refuse your consent, that may still
allow the evaluation to go forward.
Your informed consent is
required for the school responsible for making FAPE available to your
child can start providing special education and related services.
Generally speaking, if you don’t respond to the request for consent, or
if you refuse, the school will not be in violation of the law for not
providing the services. Similarly, if the school wants to reevaluate
your child, your informed consent is required, and in its absence, the
school, in its discretion, may follow the procedures to allow the
reevaluation to go forward, or may decline to do so, without violating
its obligations under the law and the Regulations.
Your
consent is not required before any review of existing data as part of an
evaluation or reevaluation, or before administering a test or other
evaluation to your child that is also administered to all children,
unless consent is required from all parents.
Generally, your
school may not use your refusal to consent to one service or activity as
a reason for denying you or your child any service, benefit or activity
of the school.
Our comment: Don’t expect/demand services
from your school if you are unwilling to cooperate and participate in
the process. You are unlikely to be successful if you do nothing, no
services are provided to your child, and then you complain that services
should have been provided anyway. Always remember that the interaction
between you and your school about your child’s IEP is just that:
interactive. Both sides must actively participate in order to achieve
the best results—the best education—for your child.
Initial Evaluations - Section 300.301
Your school is required to conduct a full and individual initial
evaluation of your child before starting to provide special education
and related services. You or your school may make the request for the
evaluation to determine eligibility. The evaluation has to be conducted
within sixty days of your consent, or if your State has set a different
time frame, then within that range. There are some exceptions to this
time frame requirement.
The evaluation must consist of procedures
to determine if your child has a disability within the meaning of the
law, and to determine your child’s educational needs.
Evaluation Procedures - Section 300.304
Your school has to provide you with notice that describes the
evaluation procedures. The school has to use “a variety of assessment
tools to gather relevant functional, developmental, and academic
information [your] child, including information provided by [you]” that
may assist in determining your child’s eligibility and the content of
your child’s IEP, “including information related to enabling [your]
child to be involved in and progress in the general education curriculum
(or for a preschool child, to participate in appropriate activities).
The school can’t use a single measure or assessment as the sole basis
for deciding eligibility and determining an appropriate educational
program. The school has to use “technically sound instruments that may
assess the relative contribution of cognitive and behavioral factors, in
addition to physical or developmental factors.”
Your school has
to ensure that the evaluation methods are selected and administered in a
way that does not discriminate on the basis of race or culture.
Generally, the evaluation must be done in your child’s native language
or some other mode of communication that is most likely “to yield
accurate information on what [your] child knows and can do academically,
developmentally, and functionally.” The methods must be “used for the
purposes for which the assessments or measures are valid and reliable;”
they must be “administered by trained and knowledgeable personnel,” and
that they are administered “in accordance with any instructions provided
by the producer of the assessments.” It is acceptable to use evaluation
materials tailored to assess specific areas of educational need and not
just ones designed to provide a single general intelligence quotient.
If
your child has impaired sensory, manual or speaking skills, the methods
have to be selected and administered so that the results accurately
reflect your child’s aptitude or achievement level or whatever other
factors the test purports to measure, rather than reflecting just your
child’s impaired sensory, manual, or speaking skills. The evaluation has
to cover all areas related to the suspected disability, including, if
appropriate, health, vision, hearing, social and emotional status,
general intelligence, academic performance, communicative status, and
motor abilities.
The evaluation has to be sufficiently
comprehensive so as to identify all of your child’s special education
and related services needs, even if they are not commonly linked to the
disability category in which your child has been classified. In other
words, the evaluation tools and methods have to provide relevant
information that will directly assist in determining the educational
needs of your child.
There are additional standards for evaluations and reevaluations found in 34 C.F.R. §300.305.
Determination of Eligibility - Section 300.306
When the administration of test and assessment methods is
complete, you and a group of qualified professionals jointly determine
if your child is eligible, and if so, the educational needs of your
child. Your school must provide you with a copy of the evaluation report
and the documentation of determination of eligibility at no cost.
In
interpreting the evaluation data, your school must “draw upon
information from a variety of sources, including aptitude and
achievement tests, parent input, and teacher recommendations, as well as
information about [your] child’s physical condition, social or cultural
background, and adaptive behavior;” and ensure “that information
obtained from all of these sources is documented and carefully
considered.” If a decision is made that your child is eligible for and
needs special education and related services, the next step is to
develop an IEP.