Special Education and Education Law
Education Law is the legal discipline covering all the issues pertaining to learning institutions, from pre-school through higher education such as graduate and professional schools. More specifically, Education Law refers to a collection of laws, rules and regulations that govern the operation of our education systems. Its primary focus is to improve and create new standards in the area of public learning institutions, school systems and school boards charged with great responsibility of educating the youth of our society.
On November 19, 1975, Public Law 94-142 was enacted into law. The law was originally called The Education for All Handicapped Children Act of 1975. (The legislative history of the law is reported in the 1975 United States Code Congressional and Administrative News, beginning at page 1425.) The original legislation was introduced in May, 1972, after several:
- . . . landmark court cases establishing in law the right to education for all handicapped children . . . In 1954, the Supreme Court of the United States (in Brown v. Board of Education) established the principle that all children be guaranteed equal educational opportunity. The Court stated "In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity . . . is a right which must be made available to all on equal terms." (At 1430 in the legislative history.)
Congress described the high social and economic costs that society pays for failing to provide disabled children with an appropriate education:
- Yet, the most recent statistics provided by the Bureau of Education for the Handicapped estimated that of the more than 8 million children . . . with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education. 1.75 million handicapped children are receiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education. (At 1432) .
The long-range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society. (At 1433) .
There is no pride in being forced to receive economic assistance. Not only does this have negative effects upon the handicapped person, but it has far-reaching effects for such person’s family. (At 1433) .
Providing educational services will ensure against persons needlessly being forced into institutional settings. One need only look at public residential institutions to find thousands of persons whose families are no longer able to care for them and who themselves have received no educational services. Billions of dollars are expended each year to maintain persons in these subhuman conditions . . . (At 1433).
Parents of handicapped children all too frequently are not able to advocate the rights of their children because they have been erroneously led to believe that their children will not be able to lead meaningful lives . . . It should not . . . be necessary for parents throughout the country to continue utilizing the courts to assure themselves a remedy . . . (At 1433) .
The Individuals with Disabilities Education Act of 1997
Since 1975, The Individuals with Disabilities Education Act was amended several times. Today, the statute is referred to as "IDEA." The statute is located in the United States Code (U.S.C.) at Volume 20, Section 1401.
The Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq. (1988 ed. and Supp. IV), requires all States to provide disabled children with a “free appropriate public education,” §1401(a)(18). This case presents the question whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA, but does not meet all the requirements of § 1401(a)(18). The Court held that the court may order such reimbursement.
The Part B regulations define 11 specified disabilities. 34 CFR § 300.5(b)(1)-(11). The Education of the Handicapped Act Amendments of 1990 amended the Individuals with Disabilities Education Act [formerly the Education of the Handicapped Act] to specify that autism and traumatic brain injury are separate disability categories. See section 602(a)(1) of the Act, to be codified at 20 U.S.C. 1401(a)(1).
Section 300.505 of the Part B regulations sets out the elements that must be contained in the prior written notice to parents: (1) A full explanation of all of the procedural safeguards available to the parents under Subpart E; (2) A description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take action, and a description of any options the agency considered and the reasons why those options were rejected; (3) A description of each evaluation procedure, test, record, or report the agency uses as a basis for the proposal or refusal; and (4) A description of any other factors which are relevant to the agency’s proposal or refusal. 34 CFR § 300.505(a)(1)-(4).
Government & Education:
Our government is charged with many different functions and responsibilities. One major area where government intervention and regulation is readily apparent is within the field of education, which is administered through the many different public school systems across our nation, by the United States Department of Education. The Department of Education oversees and sets minimum standards whereby each public school system in the United States must meet in order to graduate its students. This is usually administered by state board regents exams which test each public school student to see if they have met the minimum requirements to pass a certain grade level. Each state has the primary responsibility for the maintenance of the exam and the daily operation of the public schools located within its specific jurisdiction. It’s important to note, that the federal government also has a primary interest in the area of education. For example, the National Institute of Education was created to improve and foster public education throughout the United States. The National Institute of Education also finds ways to improve education standards by creating and developing better teaching methodologies and techniques. Each state is required by its specific Constitution to provide a public school system whereby children may receive an education. State legislatures may exercise power over their school systems in any manner consistent with its own Constitution. Many state legislatures accomplish this by delegating power over the school system to a state board of education.
The law of education historically was focused on providing access to high-quality education for all children, no matter what their race, disability status, income or gender.
The law of education strived to make higher education more accessible to students who wished to attend a college or university. Many of the changes in Education law since the first schools were built have been brought about by court interpretations of the federal Constitution and by the congressional enactment of federal statutes based on constitutional laws and principles. Over time, as public schools changed and evolved under the law, so did the private educational institutions. Private schools were also inspired by the broad sweeping changes in Education law. These private institutions began lobbying their own state legislatures and bringing about lawsuits to help foster and change public opinion and sentiment about private education and teaching as a whole.
Attorneys specializing in Education Law:
Attorneys specializing in Education law must have great insight and knowledge in areas such as Constitutional Law, Administrative Law, Family Law, Disability Law, Federal Code Regulations and many other legal areas that govern the existing legal obligations that exist between state legislatures and their respective schools boards. Attorneys who practice Education law usually work or deal with state or local administrative agencies such as school boards or private individuals and help their clients by reforming or creating new rules and regulations that can be implemented into each state’s public and private educational system.
Individuals looking for an attorney specializing in Education law need to find someone who is well versed in the Equal Opportunity Education Act of 1974 and the Family Privacy Educational Act. A good attorney specializing Education law will also understand the subtle Constitutional differences between private and public educational institutions and the appropriate rules and regulations that govern them.
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CLICK HERE TO READ THE JOINT MEMORANDUM ON ADD (Attention Deficit Disorder) (published by the Office of Special Education and Rehabilitative Services, the Office for Civil Rights, and the Office of Elementary and Secondary Education.)
Congress provides federal funding to states that develop plans meeting Federal Education goals. See 20 U.S.C. § 1412. One of the prerequisites for the receipt of federal funds is that a state establish procedures to assure:
[t]hat to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the 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. 20 U.S.C. § 1412(5); see also 34 C.F.R. §§ 300.132, 300.550(b). Although the statute itself does not use the term, this preference is known as the "least restrictive environment," or LRE, in the accompanying regulations. See 34 C.F.R. § 300.550-300.556. In addition, the state educational agency also is responsible for assuring that the requirements of the IDEA are carried out and that programs for children with disabilities administered within the state by the local educational agency as well as all programs administered by another state agency, meet the educational standards of the state educational agency. See 20 U.S.C. § 1412(6).20.
Under the IDEA, the educational needs of a handicapped child and the services required to meet those needs must be memorialized annually in that child’s IEP. See 20 U.S.C. § 1414(a)(5); Walczak, 142 F.3d at 122 (summarizing the contents of the IEP). IEPs are formulated based on the input of a school official qualified in special education, the child’s teacher, the child’s parents, and when appropriate, the child. See 20 U.S.C. § 1401(a)(20).21 When parents are not satisfied with the IEP proposed for their child, they may file a complaint with the state educational agency; such complaints are resolved through an impartial due process hearing conducted by either the local or state educational agency. See 20 U.S.C. § 1415(b), (c); see also Conn. Gen.Stat. § 10-76a et seq. (setting forth the procedural and substantive obligations of parents and educational agencies in the appeals process under state law). In Connecticut, the state educational agency conducts due process hearings, though the hearing officers appointed by the DOE are not employees of the DOE. See Conn. Gen.Stat. § 10-76h(c); M.C. v. Voluntown Board of Educ., 178 F.R.D. 367, 370 (D.Conn.1998). Any party not satisfied with the decision of the hearing officer may bring a civil action in the Connecticut Superior Court or the U.S. District Court, as the plaintiff did here. See 20 U.S.C. § 1415(e).
The IDEA contains several provisions establishing the role of agencies (other than the state educational agency) in providing educational services. For instance, it provides, in part, that:
Any State meeting eligibility requirements … and desiring to participate in the program … shall submit to the Secretary, through its State educational agency, a State plan … [that] shall —
(13) set forth policies and procedures for developing and implementing interagency agreements between the State educational agency and other appropriate State and local agencies to —
(A) define the financial responsibility of each agency for providing children with disabilities and youth with free appropriate public education, and
(B) resolve interagency disputes, including procedures under which local educational agencies may initiate proceedings under the agreement in order to secure reimbursement from other agencies or otherwise implement the provisions of the agreement[.]
20 U.S.C. § 1413(a); see also 34 C.F.R. § 300.152. Further, the duty of the state educational agency to comply with the IDEA does not "limit the responsibility of agencies other than educational agencies in a State from providing or paying for some or all of the costs of a free appropriate public education." See 20 U.S.C. § 1412(6).28
B. Claims against the DOE and the DCF under the ADA
1. The ADA in General
The ADA provides, in part, that "no qualified individual with a disability, shall, by reason of the disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. This requirement is contained in Title II of the ADA, which prohibits discrimination by public entities against qualified individual with a disability in the benefits or activities of the public entity.35 Recently, however, the Second Circuit held that in enacting Title II of the ADA, Congress exceeded its power under § 5 of the Fourteenth Amendment and therefore, failed to validly abrogate Eleventh Amendment immunity. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, No. 00-9223, 2001 WL 1159970, at *9 (2d Cir. Sept.26, 2001). But, "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability."36 Id. Here, the plaintiff demands injunctive relief from both defendants, which is not affected by the court’s ruling in Garcia.37 See id. at *12; Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374 n. 9, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (holding that although Congress did not validly abrogate the States’ sovereign immunity from suit by private individuals for money damages under Title I of the ADA, those standards can be enforced by private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)).
Therefore, a plaintiff need not show discriminatory animus or ill will due to disability, as this is the standard when a damages claim is involved. Courts have previously recognized that where the handicapping condition is related to the benefit provided, it will rarely, if ever, be possible to say with certainty that a particular decision was discriminatory…. [T]he question of who is otherwise qualified and what actions constitute discrimination under § 504 would seem to be two sides of a single coin; the ultimate question is the extent to which a grantee is required to make reasonable modifications in its programs for the needs of the handicapped. ….. The appropriate focus in the case before us, therefore, is not whether [the plaintiff] is otherwise qualified for … benefits, but the extent to which the defendants are required by the anti-discrimination statutes to modify their programs to meet all of [the plaintiff's] needs as a disabled individual ….. [N]either the ADA nor the Rehabilitation Act establish an obligation to meet a disabled person’s particular needs vis-a-vis the needs of other handicapped individuals, but mandate only that the services provided … to nonhandicapped individuals not be denied to a disabled person because he is handicapped. Doe, 148 F.3d at 83 (citations omitted).
The Court in this case stated that the plaintiff does not allege, nor present any evidence, that he was treated differently than any non-disabled individual. Instead, the evidence shows that the DCF modified its program several times to meet the needs of the plaintiff. For example, it added medical monitoring as part of his program when it was requested by the plaintiff’s mother. Further, it tailored the mentoring and counseling activities to meet the needs of the plaintiff and his family as expressed in the family planning group meetings. In short, the Court finds that there is no evidence that either the DOE or the DCF acted with any bad faith or gross misjudgment. See R.B., 99 F.Supp.2d at 419. Perhaps the plaintiff did not receive the same services as he would have received had he been admitted to a residential facility, but the evidence shows that the DCF expended substantial funds on behalf of the plaintiff when he was participating in the NCTP. Not only were he and his family provided with various kinds of counseling, he also enjoyed medical care and recreational activities through the DCF. The Court finds that his programs were reasonably tailored to meet his needs.
C. Rehabilitation Act Claim against the DCF
Section 504 of the Rehabilitation Act guarantees that "no otherwise qualified individual with a disability, … shall, solely by reason of her or his disability, be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). While actions for money damages under the Rehabilitation Act are most likely foreclosed, see Garcia, 2001 WL 1159970 at *11 (holding that the plaintiff’s § 504 damage claim against New York fails because the state did not waive its sovereign immunity from suit), actions for injunctive relief are still possible, see id. (holding that deliberate indifference still remains the necessary showing for § 504 claims).
In order to establish a violation of § 504 of the Rehabilitation Act, a plaintiff must show essentially the same elements required under the ADA, see Doe, 148 F.3d at 82, though § 504 covers entities receiving federal financial assistance. Messier, 1999 WL 20910, at *8 n. 7. More particularly, "[t]he elements of a claim for retaliation under Section 504 … are: (i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that the plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action." Weixel v. Board of Educ. of the City of New York, 97 CIV. 9367(DAB), 2000 WL 1100395, at *4, (S.D.N.Y. Aug. 7, 2000) (citing cases).
The right to procedural due process requires that "`deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’" Logan v. Zimmerman Brush Co. 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). A plaintiff asserting a procedural due process claim must show: (1) that he had a property right; (2) that the state deprived him of that right; and (3) that the deprivation was effected without due process of law. Local 342 v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir.1994)
Related services include: transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, 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. 20 U.S.C. § 1401(a)(17); see also Cedar Rapids, 526 U.S. at 68 n. 1, 119 S.Ct. 992. In other words, related services are those "that enable a disabled child to remain in school during the day provide the student with `the meaningful access to education that Congress envisioned.’" Cedar Rapids, 526 U.S. at 73, 119 S.Ct. 992 (quoting Irving Independent School Dist. v. Tatro, 468 U.S. 883, 891, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984)).
State educational agency "means the State board of education or other agency or officer primarily responsible for the State supervision of public elementary and secondary schools…." 20 U.S.C. § 1401(a)(7). Local educational agency "means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, or other political subdivision of a State…." Id. § 1401(a)(8).
Under state law, the IEP is formulated by the child’s PPT, which does not include the parents or the child, but the parents have the right to participate in PPT meetings under the IDEA. See Conn. State Reg. § 10-76a-1(p). The IEP must include: (1) a statement of the child’s present levels of educational performance; (2) a statement of annual goals, including long and short-term objectives; (3) a statement of the specific educational services to be provided to the child; (4) a statement of the transition services needed by the child, where applicable; (5) the projected date on which the services will begin and their anticipated duration; and (6) objective criteria and evaluation procedures to be used to determine whether the instructional objectives are being achieved. See 20 U.S.C. § 1401(20).
The following Joint Policy Memorandum was published by the Office of Special Education and Rehabilitative Services, the Office for Civil Rights, and the Office of Elementary and Secondary Education. The Memo clarifies that children with Attention Deficit Disorder (ADD) and/or Hyperactive Attention Deficit Disorder (ADHD) may be eligible for special education services under three IDEA disability categories – SLD, OHI, and ED. The Joint Policy Memorandum also describes the circumstances under which public schools must provide education and related services under Section 504 of the Rehabilitation Act.
Joint Policy Memorandum (ADD)
Office of Special Education and Rehabilitative Services
September 16, 1991
Robert R. Davila, Assistant Secretary, Office of Special Education and Rehabilitative Services. Michael L. Williams, Assistant Secretary, Office for Civil Rights. John T. MacDonald, Assistant Secretary, Office of Elementary and Secondary Education.
There is a growing awareness in the education community that attention deficit disorder (ADD) and attention deficit hyperactive disorder (ADHD) can result in significant learning problems for children with those conditions.
While estimates of the prevalence of ADD vary widely, we believe that three to five percent of school-aged children may have significant educational problems related to this disorder. Because ADD has broad implications for education as a whole, the Department believes it should clarify State and local responsibility under Federal law for addressing the needs of children with ADD in the schools. Ensuring that these students are able to reach their fullest potential is an inherent part of the National education goals and AMERICA 2000. The National goals, and the strategy for achieving them, are based on the assumptions that:
(1) all children can learn and benefit from their education; and
(2) the educational community must work to improve the learning opportunities for all children.
This memorandum clarifies the circumstances under which children with ADD are eligible for special education services under Part B of the Individuals with Disabilities Education Act (Part B), as well as the Part B requirements for evaluation of such children’s unique educational needs. This memorandum will also clarify the responsibility of State and local educational agencies (SEAs and LEAs) to provide special education and related services to eligible children with ADD under part B. Finally, this memorandum clarifies the responsibilities of LEAs to provide regular or special education and related aids and services to those children with ADD who are not eligible under Part B, but who fall within the definition of "handicapped person" under Section 504 of the Rehabilitation Act of 1973. Because of the overall educational responsibility to provide services for these children, it is important that general and special education coordinate their efforts.
II. Eligibility for Special Education and Related Services under Part B
Last year during the reauthorization of the Education of the Handicapped Act [now the Individuals with Disabilities Education Act, Congress gave serious consideration to including ADD in the definition of "children with disabilities" in the statute. The Department took the position that ADD does not need to be added as a separate disability category in the statutory definition since children with ADD who require special education and related services can meet the eligibility criteria for services under Part B. This continues to be the Department’s position.
No change with respect to ADD was made by Congress in the statutory definition of "children with disabilities"; however, language was included in Section 102(a) of the Education of the Handicapped Act Amendments of 1990 that required the Secretary to issue a Notice of Inquiry (NOI) soliciting public comment on special education for children with ADD under Part B. In response to the NOI (published November 29, 1990 in the Federal Register,) the Department received over 2000 written comments, which have been transmitted to the Congress. Our review of these written comments indicates that there is confusion in the field regarding the extent to which children with ADD may be served in special education programs conducted under Part B.
A. Description of Part B
Part B requires SEAs and LEAs to make a free appropriate public education (FAPE) available to all eligible children with disabilities and to ensure that the rights and protections of Part B are extended to those children and their parents. 20 U.S.C. 1412(2); 34 CFR §§ 300.121 and 300.2. Under Part B, FAPE, among other elements, includes the provision of special education and related services, at no cost to parents, in conformity with an individualized education program (IEP). 34 CFR § 300.4.
In order to be eligible under Part B, a child must be evaluated in accordance with 34 CFR §§ 300.530-300.534 as having one or more specified physical or mental impairments, and must be found to require special education and related services by reason of one or more of these impairments.2 20 U.S.C. 1401(a)(1); 34 CFR § 300.5. SEAs and LEAs must ensure that children with ADD who are determined eligible for services under Part B receive special education and related services designed to meet their unique needs, including special education and related services needs arising from the ADD. A full continuum of placement alternatives, including the regular classroom, must be available for providing special education and related services required in the IEP.
B. Eligibility for Part B services under the "Other Health Impaired" Category
The list of chronic or acute health problems included within the definition of "other health impaired" in the Part B regulations is not exhaustive.
The term "other health impaired" includes chronic or acute impairments that result in limited alertness, which adversely affects educational performance. Thus, children with ADD should be classified as eligible for services under the "other health impaired" category in instances where the ADD is a chronic or acute health problem that results in limited alertness, which adversely affects educational performance. In other words, children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the "other health impaired" category in situations where special education and related services are needed because of the ADD.
C. Eligibility for Part B services under other Disability Categories
Children with ADD are also eligible for services under Part B if the children satisfy the criteria applicable to other disability categories. For example, children with ADD are also eligible for services under the "specific learning disability" category of Part B if they meet the criteria stated in §§ 300.5(b)(9) and 300.541 or under the "seriously emotionally disturbed" category of Part B if they meet the criteria stated in § 300.5(b)(8).
III. Evaluations under Part B
SEAs and LEAs have an affirmative obligation to evaluate a child who is suspected of having a disability to determine the child’s need for special education and related services. Under Part B, SEAs and LEAs are required to have procedures for locating, identifying and evaluating all children who have a disability or are suspected of having a disability and are in need of special education and related services. 34 CFR §§ 300.128 and 300.220. This responsibility, known as "child find," is applicable to all children from birth through 21, regardless of the severity of their disability.
Consistent with this responsibility and the obligation to make FAPE available to all eligible children with disabilities, SEAs and LEAs must ensure that evaluations of children who are suspected of needing special education and related services are conducted without undue delay. 20 U.S.C. 1412(2). Because of its responsibility resulting from the FAPE and child find requirements of Part B, an LEA may not refuse to evaluate the possible need for special education and related services of a child with a prior medical diagnosis of ADD solely by reason of that medical diagnosis. However, a medical diagnosis of ADD alone is not sufficient to render a child eligible for services under Part B.
Under Part B, before any action is taken with respect to the initial placement of a child with a disability in a program providing special education and related services, "a full and individual evaluation of the child’s educational needs must be conducted in accordance with requirements of § 300.532." 34 CFR § 300.531. Section 300.532(a) requires that a child’s evaluation must be conducted by a multidisciplinary team, including at least one teacher or other specialist with knowledge in the area of suspected disability.
B. Disagreements over Evaluations
Any proposal or refusal of an agency to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child is subject to the written prior notice requirements of 34 CFR §§ 300.504-300.505.3 If a parent disagrees with the LEA’s refusal to evaluate a child or the LEA’s evaluation and determination that a child does not have a disability for which the child is eligible for services under Part B, the parent may request a due process hearing pursuant to 34 CFR §§ 300.506-300.513 of the Part B regulations.
IV. Obligations Under Section 504 of SEAs and LEAs to Children with ADD Found Not To Require Special Education and Related Services under Part B
Even if a child with ADD is found not to be eligible for services under Part B, the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504) and its implementing regulation at 34 CFR Part 104 may be applicable. Section 504 prohibits discrimination on the basis of handicap by recipients of Federal funds. Since Section 504 is a civil rights law, rather than a funding law, its requirements are framed in different terms than those of Part B. While the Section 504 regulation was written with an eye to consistency with Part B, it is more general, and there are some differences arising from the differing natures of the two laws. For instance, the protections of Section 504 extend to some children who do not fall within the disability categories specified in Part B.
Section 504 requires every recipient that operates a public elementary or secondary education program to address the needs of children who are considered "handicapped persons" under Section 504 as adequately as the needs of nonhandicapped persons are met. "Handicapped person" is defined in the Section 504 regulation as any person who has a physical or mental impairment which substantially limits a major life activity (e.g., learning). 34 CFR § 104.3(j). Thus, depending on the severity of their condition, children with ADD may fit within that definition.
B. Programs and Services Under Section 504
Under Section 504, an LEA must provide a free appropriate public education to each qualified handicapped child. A free appropriate public education, under Section 504, consists of regular or special education and related aids and services that are designed to meet the individual student’s needs and based on adherence to the regulatory requirements on educational setting, evaluation, placement, and procedural safeguards. 34 CFR §§ 104.33, 104.34, 104.35, and 104.36. A student may be handicapped within the meaning of Section 504, and therefore entitled to regular or special education and related aids and services under the Section 504 regulation, even though the student may not be eligible for special education and related services under Part B.
Under Section 504, if parents believe that their child is handicapped by ADD, the LEA must evaluate the child to determine whether he or she is handicapped as defined by Section 504. If an LEA determines that a child is not handicapped under Section 504, the parent has the right to contest that determination. If the child is determined to be handicapped under Section 504, the LEA must make an individualized determination of the child’s educational needs for regular or special education or related aids and services. 34 CFR § 104.35. For children determined to be handicapped under Section 504, implementation of an individualized education program developed in accordance with Part B, although not required, is one means of meeting the free appropriate public education requirements of Section 504.4 The child’s education must be provided in the regular education classroom unless it is demonstrated that education in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 104.34.
Should it be determined that the child with ADD is handicapped for purposes of Section 504 and needs only adjustments in the regular classroom, rather than special education, those adjustments are required by Section 504. A range of strategies is available to meet the educational needs of children with ADD. Regular classroom teachers are important in identifying the appropriate educational adaptations and interventions for many children with ADD.
SEAs and LEAs should take the necessary steps to promote coordination between special and regular education programs. Steps also should be taken to train regular education teachers and other personnel to develop their awareness about ADD and its manifestations and the adaptations that can be implemented in regular education programs to address the instructional needs of these children. Examples of adaptations in regular education programs could include the following:
"providing a structured learning environment; repeating and simplifying instructions about in-class and homework assignments; supplementing verbal instructions with visual instructions; using behavioral management techniques; adjusting class schedules; modifying test delivery; using tape recorders, computer-aided instruction, and other audio-visual equipment; selecting modified textbooks or workbooks; and tailoring homework assignments."
Other provisions range from consultation to special resources and may include reducing class size; use of one-on-one tutorials; classroom aides and note takers; involvement of a "services coordinator" to oversee implementation of special programs and services, and possible modification of nonacademic times such as lunchroom, recess, and physical education.
Through the use of appropriate adaptations and interventions in regular classes, many of which may be required by Section 504, the Department believes that LEAs will be able to effectively address the instructional needs of many children with ADD.
C. Procedural Safeguards Under Section 504
Procedural safeguards under the Section 504 regulation are stated more generally than in Part B. The Section 504 regulation requires the LEA to make available a system of procedural safeguards that permits parents to challenge actions regarding the identification, evaluation, or educational placement of their handicapped child whom they believe needs special education or related services. 34 CFR § 104.36. The Section 504 regulation requires that the system of procedural safeguards include notice, an opportunity for the parents or guardians to examine relevant records, an impartial hearing with opportunity for participation by the parents or guardian and representation by counsel, and a review procedure. Compliance with procedural safeguards of Part B is one means of fulfilling the Section 504 requirement.5 However, in an impartial due process hearing raising issues under the Section 504 regulation, the impartial hearing officer must make a determination based upon that regulation.
Congress and the Department have recognized the need to provide information and assistance to teachers, administrators, parents and other interested persons regarding the identification, evaluation, and instructional needs of children with ADD. The Department has formed a work group to explore strategies across principal offices to address this issue. The work group also plans to identify some ways that the Department can work with the education associations to cooperatively consider the programs and services needed by children with ADD across special and regular education.
In fiscal year 1991, the Congress appropriated funds for the Department to synthesize and disseminate current knowledge related to ADD. Four centers will be established in Fall, 1991 to analyze and synthesize the current research literature on ADD relating to identification, assessment, and interventions. Research syntheses will be prepared in formats suitable for educators, parents and researchers. Existing clearinghouses and networks, as well as Federal, State and local organizations will be utilized to disseminate these research syntheses to parents, educators and administrators, and other interested persons.
In addition, the Federal Resource Center will work with SEAs and the six regional resource centers authorized under the Individuals with Disabilities Education Act to identify effective identification and assessment procedures, as well as intervention strategies being implemented across the country for children with ADD. A document describing current practice will be developed and disseminated to parents, educators and administrators, and other interested persons through the regional resource centers network, as well as by parent training centers, other parent and consumer organizations, and professional organizations. Also, the Office for Civil Rights’ ten regional offices stand ready to provide technical assistance to parents and educators.
It is our hope that the above information will be of assistance to your State as you plan for the needs of children with ADD who require special education and related services under Part B, as well as for the needs of the broader group of children with ADD who do not qualify for special education and related services under Part B, but for whom special education or adaptations in regular education programs are needed.
If you have any questions, please contact Jean Peelen, Office for Civil Rights; (Phone: 202/732-1635 begin_of_the_skype_highlighting 202/732-1635 end_of_the_skype_highlighting begin_of_the_skype_highlighting 202/732-1635 end_of_the_skype_highlighting), Judy Schrag, Office of Special Education Programs (Phone: 202/732-1007); or Dan Bonner, Office of Elementary and Secondary Education (Phone: 202/401-0984).
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