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:
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
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.
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 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]
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]
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]
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]
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]
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.
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.
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.
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.