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 1400a Findings

 1400c4 The Act has been Impeded by Low Expectations and a Lack of Research

 1400c5 Special Education can be More Effective By . . . 

 #1400d Purposeof Special Education

 1401 Definitions

• Definition - Related Services
  Definition - Specific learning disability
  Definition - Supplementary Aids and Services

 1406 Prescribing Regulations

(a) (b) * * * (omitted)

(c) Findings.

The Congress finds the following:

(1) Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

(2) Before the date of the enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94 142)--

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  • (A) the special educational needs of children with disabilities were not being fully met;

    (B) more than one-half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity;

    (C) 1,000,000 of children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers;

    (D) there were many children with disabilities throughout the United States participating in regular school programs whose disabilities prevented such children from having a successful educational experience because their disabilities were undetected; and

    (E) because of the lack of adequate services within the public school system, families were often forced to find services outside the public school system, often at great distance from their residence and at their own expense.

(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this Act has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education and in improving educational results for children with disabilities.

• (PWDW Note: In part, the original statute was enacted because many children with disabilities were denied "access" to educational services without due process of law. Public Law 94-142 provided access to an appropriate education through an elaborate system of legal checks and balances designed to provide due process of law. IDEA 97 has maintained these goals of access and due process while addressing the quality of special education.

(4) However, the implementation of this Act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.

• (PWDW Note: The new law emphasizes the need to use "proven methods of teaching and learning" that are based on "replicable research." The new law also emphasizes the importance of measuring educational progress objectively.

  Special education has generated negative publicity because the system often fails to teach children the basic academic skills they need. Special education outcomes are poor. In most cases, educational progress is not measured objectively. You will see greater emphasis on measurable progress and positive outcomes. IDEA 97 expects children in special education to participate in standardized state and district assessment programs.

  Litigation will focus on whether special education programs are based on sound, replicable research and whether effective practices are being used.)

(5) Over 20 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by--

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  • (A) having high expectations for such children and ensuring their access in the general curriculum to the maximum extent possible;
     
    • (PWDW Note: Future litigation will focus on special education programs that have low expectations for children with disabilities. Although most disabled children need remediation, special education programs usually include modifications, accommodations. and "compensatory techniques." These programs "lower the bar," and don't provide these children with the remediation they need. Modifications and accommodations do not teach basic skills, i.e., how to read, write, spell, do arithmetic. Remember: one of the primary purposes of special education is to promote "economic self-sufficiency for individuals with disabilities." To be self-sufficient, children need to learn to read, write, spell, and do arithmetic.)
      •  

    (B) strengthening the role of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home;
     

    •  
      • (PWDW Note: IDEA 97 strengthens the role of parents. Parents should not be barred from taking an active role in their child's education. If schools balk at providing special education services that work, or claim that schools can choose a "methodology" that doesn’t work, litigation will increase.)
         

    (C) coordinating this Act with other local, educational service agency, State, and Federal school improvement efforts in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where they are sent;
     

    •  
      • (PWDW Note: Litigation will focus on how placement decisions are made. Many districts develop one-size-fits-all programs to meet their own needs. In most cases, these one-size-fits-all programs do not adequately address the unique needs of the child.)
         

    (D) providing appropriate special education and related services and aids and supports in the regular classroom to such children, whenever appropriate;
     

    •  
      • (PWDW Note: The new law moves special education into the regular classrooms. Children will be receiving their special educational services, aids and supports in the regular classroom, with non-disabled children. )
         

    (E) supporting high-quality, intensive professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary to enable them--
     

    •  
      • (i) to meet developmental goals and, to the maximum extent possible, those challenging expectations that have been established for all children; and

        (ii) to be prepared to lead productive, independent, adult lives, to the maximum extent possible;
         

    (F) providing incentives for whole-school approaches and pre-referral intervention to reduce the need to label children as disabled in order to address their learning needs; and
     

    •  
      • (PWDW Note: If children need intervention services, they need these services sooner, not later. Many schools drag their feet when providing services, which means that several years pass before children finally receive help.

        Neurological windows of opportunity in learning begin to close when children are still in elementary school. This makes later remediation more difficult and more costly, economically and emotionally. Congress emphasizes the need to provide intervention services early, instead of waiting until the child is failing and has been damaged.)
         

    (G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results.

(6) * * *

(7)

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  • (A) The Federal Government must be responsive to the growing needs of an increasingly more diverse society. A more equitable allocation of resources is essential for the Federal Government to meet its responsibility to provide an equal educational opportunity for all individuals.

    (B) America’s racial profile is rapidly changing. Between 1980 and 1990, the rate of increase in the population for white Americans was 6 percent, while the rate of increase for racial and ethnic minorities was much higher: 53 percent for Hispanics, 13.2 percent for African-Americans, and 107.8 percent for Asians.

    (C) By the year 2000, this Nation will have 275,000,000 people, nearly one of every three of whom will be either African-American, Hispanic, Asian-American, or American Indian.

    (D) Taken together as a group, minority children are comprising an ever larger percentage of public school students. Large-city school populations are overwhelmingly minority, for example: for fall 1993, the figure for Miami was 84 percent; Chicago, 89 percent; Philadelphia, 78 percent; Baltimore, 84 percent; Houston, 88 percent; and Los Angeles, 88 percent.

    (E) Recruitment efforts within special education must focus on bringing larger numbers of minorities into the profession in order to provide appropriate practitioner knowledge, role models, and sufficient manpower to address the clearly changing demography of special education.

    (F) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation. In the Nation’s 2 largest school districts, limited English students make up almost half of all students initially entering school at the kindergarten level. Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education. The Department of Education has found that services provided to limited English proficient students often do not respond primarily to the pupil’s academic needs. These trends pose special challenges for special education in the referral, assessment, and services for our Nation’s students from non-English language backgrounds.

(8)

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  • (A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities.

    (B) More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.

    (C) Poor African-American children are 2.3 times more likely to be identified by their teacher as having mental retardation than their white counterpart.

    (D) Although African-Americans represent 16 percent of elementary and secondary enrollments, they constitute 21 percent of total enrollments in special education.

    (E) The drop-out rate is 68 percent higher for minorities than for whites.

    (F) More than 50 percent of minority students in large cities drop out of school.

(9)

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  • (A) * * *

    (B) In 1993, of the 915,000 college and university professors, 4.9 percent were African-American and 2.4 percent were Hispanic. Of the 2,940,000 teachers, prekindergarten through high school, 6.8 percent were African-American and 4.1 percent were Hispanic.

    (C) Students from minority groups comprise more than 50 percent of K - 12 public school enrollment in seven States, yet minority enrollment in teacher training programs is less than 15 percent in all but six States.

    (D) As the number of African-American and Hispanic students in special education increases, the number of minority teachers and related service personnel produced in our colleges and universities continues to decrease.

    (E) Ten years ago, 12 percent of the United States teaching force in public elementary and secondary schools were members of a minority group. Minorities comprised 21 percent of the national population at that time and were clearly underrepresented then among employed teachers. Today, the elementary and secondary teaching force is 13 percent minority, while one-third of the students in public schools are minority children.

(F) (G) (H)* * *

(10) Minorities and underserved persons are socially disadvantaged because of the lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream of society.

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  • (PWDW Note: Given the emphasis above in Sections 7, 8, 9, and 10, school districts can expect close scrutiny in audits and investigations by the U. S. Department of Education and the Office of Civil Rights. In light of this Congressional finding, I expect OCR to look closely at the special education services provided to minority children and children with limited proficiency in English.)

(d) Purposes.--The purposes of this title are--

(1)

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  • (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 employment and independent living;

    (B) to ensure that the rights of children with disabilities and parents of such children are protected; and

    (C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities;

(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;

(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting systemic-change activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

Except as otherwise provided, as used in this Act:

(1) Assistive technology device.--The term ‘assistive technology device’ means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.

(2) Assistive technology service.--The term ‘assistive technology service’ means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes--

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  • (A) the evaluation of the needs of such child, including a functional evaluation of the child in the child’s customary environment;
     
    •  
      • (PWDW Note: This can mean a functional evaluation of the child within the home setting.)
         

    (B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child;

    (C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology devices;

    (D) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

    (E) training or technical assistance for such child, or, where appropriate, the family of such child; and

    (F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child.
     

    •  
      • (PWDW Note: It is clear that Congress intends assistive technology services to extend beyond the classroom and schoolhouse.)

(3) Child with a disability.--

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  • (A) In general.--The term ‘child with a disability’ means a child--
     
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      •  (i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as ‘emotional disturbance’), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

        (ii) who, by reason thereof, needs special education and related services.
         

        •  
          • (PWDW Note: This is in line with the earlier definition. The mere existence of a disability, does not qualify a child for services under IDEA. A child may have a disability but not need special education. If a child has a disability but does not need special education and related services, then the child is not included under IDEA. However, having a disability can mean that the child is entitled to the protections afforded by Section 504 of the Rehabilitation Act and cannot be discriminated against for reasons related to the disability.

            Section 504 also mandates access to services and an appropriate education. Section 504 does not provide an education from which the child must receive educational benefit. Section 504 addresses access to an appropriate education. A child who is eligible for services under IDEA 97 is, by definition, a child with a disability. This means that the IDEA 97 child is entitled to a free appropriate public education, (FAPE), as described in this statute. This child is entitled to an IEP (described in 20 U.S.C. § 1414) that provides educational benefit. Because the child has a disability, the child will automatically receive the protections of Section 504. However, the child with a disability who does not receive services under IDEA 97 is not entitled to protections and rights under this statute.)
             

    (B) Child aged 3 through 9.--The term ‘child with a disability’ for a child aged 3 through 9 may, at the discretion of the State and the local educational agency, include a child--
     

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      • (i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and

        (ii) who, by reason thereof, needs special education and related services.
         

        •  
          • (PWDW Note: Providing services to children with "developmental delays" again focuses on the importance of early intervention. This addresses the need to provide special education services to young children who have not been officially classified with specific disabilities. Although a district may claim that a child is not eligible for special services because of a disagreement about the definition or classification of the disability, if the child has a developmental delay, then the child should be found eligible on that basis. The child does not have to be diagnosed with a specific disability to be eligible under this section.)

(4) - (7) * * *

(8) Free appropriate public education.--The term ‘free appropriate public education’ means special education and related services that--

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  • (A) have been provided at public expense, under public supervision and direction, and without charge;

    (B) meet the standards of the State educational agency;

    (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

    (D) are provided in conformity with the individualized education program required under section 614(d).

(9) (10) * * *

(11) Individualized education program.--The term ‘individualized education program’ or ‘IEP’ means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 614(d).

(12) -(14) * * *

(15) Local educational agency.--

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  • (A) The term ‘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, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. * * *

(16) - (21) * * *

(22) Related services.--The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

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  • (PWDW Note: "Related services" is tied to the need to receive benefit from special education. Compare this to supplementary aids and services, in subsection 29 below. Both related services and supplementary services can include individualized tutoring and remediation in the acquisition of basic reading, writing, spelling and arithmetic skills. To receive tutoring or remediation services, the child does not have to be placed in a resource or self-contained classroom.)

(23) - (24) * * *

(25) Special education.--The term ‘special education’ means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including--

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  • (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

    (B) instruction in physical education.

(26) Specific learning disability.--

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  • (A) In general.--The term ‘specific learning disability’ means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.
     
    •  
      • (PWDW Note: The legal definition of a "learning disability" is unchanged (see above). As you can see, the legal definition does not contain any reference to a "discrepancy" between IQ and educational achievement test scores. The discrepancy formulas that are used in some states say that there must be a specific statistical difference between the child IEP and the child's educational achievement scores. The IQ must be significantly higher than the educational test scores. The "discrepancy" varies from one state to another, and one jurisdiction to the next. Children can be "cured" of their learning disabilities simply by moving across town to a jurisdiction that uses a wider discrepancy measure.

        Public Law 94-142 does not contain any reference to a discrepancy formula to determine whether or not children are eligible for special education services due to learning disabilities. The phrase "discrepancy" appeared later, after the law was passed, in the Code of Federal Regulations.

        Various groups have advised the U. S. Department of Education that extensive research has shown that discrepancy formulas are not a valid way to assess for the presence or absence of a learning disability. The Learning Disabilities Association of America and the National Institute of Child Health and Human Development (National Institute of Health) urged the U. S. Department of Education to eliminate discrepancy formulas as a means of identifying learning disabilities. Despite this, the proposed regulation 34 C.F.R. § 300.541 includes the term "severe discrepancy."

        On October 22, 1997, the U. S. Department of Education issued a statement that:

        The Secretary intends to review carefully over the next several years the additional procedures for evaluating children suspected of having a specific learning disability contained in proposed Sections 300.540 - 300.543 in light of research, expert opinion, and practical knowledge in identifying children with a specific learning disability with the purpose of considering whether legislative proposals should be advanced for revising these procedures. (Federal Register, Volume 62, No. 204, page 55048, October 22, 1997 issue)

        This begs the question. If Congress did not include a "discrepancy formula" in the statute which they wrote, then it should not require an act of Congress, i. e. "legislative proposals," to remove this phrase from the statute. Reductio Ad Adsurdum.)

        NOTE: The authority cited to support maintaining the old regulations, despite the lack of statutory authority, is reported as "Note to Section 1411." I am unable to find a "Note to Section 1411" that addresses the issue of discrepancy formulas. The improper use of discrepancy formulas has received considerable attention. Litigation will increase for school districts that rely on rigid discrepancy formulas to find children ineligible for services, or to find that children are no longer eligible for services because their IQ scores drop while enrolled in special education programs. End of PWDW Note.)
         

    (B) Disorders included.--Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
     

    •  
      • (PWDW Note: If the child’s overall IQ and achievement test scores do not show a "severe discrepancy" (as discussed above), but the child's scores show significant subtest scatter (which suggests perceptual disabilities), then the child may be found eligible for special education on this basis alone. "Minimal brain dysfunction" is a diagnostic label used by the American Psychiatric Association during the middle 1970’s when Public Law 94-142 was enacted. The term "minimal brain dysfunction" is an old name for conditions now referred to as "Attention Deficit Disorders.")
         

    (C) Disorders not included.--Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
     

    •  
      • (PWDW Note: If a child has a disability that adversely affects educational performance and if the child is not retarded, does not have visual, hearing or other motor disability, is not emotionally disturbed, or negatively affected by environmental, cultural or economic disadvantage, then (by process of elimination), the child has a learning disability.)

(28) State educational agency.--The term ‘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, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.

(29) Supplementary aids and services.--The term ‘supplementary aids and services’ means, aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 612(a)(5).

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  • (PWDW Note: See my note in subsection 22 about related services. Related services and supplementary services can include individualized tutoring and remediation in the acquisition in basic reading, writing, spelling and arithmetic skills. This does not require the child to be placed into a resource or self-contained class to receive these services. This phrase can be especially important in school discipline proceedings because the extent of such services can affect the outcome of a disciplinary placement. See 20 U.S.C. § 1415(k)(2)(C))

(30) Transition services.--The term ‘transition services’ means a coordinated set of activities for a student with a disability that--

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  • (A) are designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

    (B) are based upon the individual student’s needs, taking into account the student’s preferences and interests; and

    (C) include instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

20 U.S.C. § 1402 Office of Special Education Program. * * *

20 U.S.C. § 1403 Abrogation of State Sovereign Immunity. * * *

20 U.S.C. § 1404 Acquisition of Equipment; Construction or Alteration of Facilities. * * *

20 U.S.C. § 1405 Employment of Individuals with Disabilities. * * *

(a) Public Comment Period.--The Secretary shall provide a public comment period of at least 90 days on any regulation proposed under part B or part C of this Act on which an opportunity for public comment is otherwise required by law.

(b) Protections Provided to Children.--The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this Act that would procedurally or substantively lessen the protections provided to children with disabilities under this Act . . . (particularly as such protections relate to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at individualized education program meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of the Congress in legislation.

(c) Policy Letters and Statements.--The Secretary may not, through policy letters or other statements, establish a rule that is required for compliance with, and eligibility under, this part without following the requirements of section 553 of title 5, United States Code.

(d) Correspondence From Department of Education Describing Interpretations of This Part.--

(1) In general.--The Secretary shall, on a quarterly basis, publish in the Federal Register, and widely disseminate to interested entities through various additional forms of communication, a list of correspondence from the Department of Education received by individuals during the previous quarter that describes the interpretations of the Department of Education of this Act or the regulations implemented pursuant to this Act.

(2) Additional information.--For each item of correspondence published in a list under paragraph (1), the Secretary shall identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate.

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  • (PWDW Note: Having the Federal Register published on the Internet means that everyone, on an equal basis, has access to the most recent interpretations of the Act and the Regulations. Below are a list of web sites where you can obtain a copy of 20 U.S.C. § 1401 et. seq., the Federal Register, the Code of Federal Regulations, Department of Education Opinion letters and other pertinent legal information:

    U. S. Department of Education: http://www.ed.gov/offices/OSERS/IDEA/)

    LD Online (Sponsored by NPR) http://www.ldonline.org

    Legal Special Ed web site http://www.edlaw.net

    Special Ed Advocate (our website) http://www.wrightslaw.com

    (End of PWDW Note)

(e) Issues of National Significance.--If the Secretary receives a written request regarding a policy, question, or interpretation under part B of this Act, and determines that it raises an issue of general interest or applicability of national significance to the implementation of part B, the Secretary shall--

(1) include a statement to that effect in any written response;

(2) widely disseminate that response to State educational agencies, local educational agencies, parent and advocacy organizations, and other interested organizations, subject to applicable laws relating to confidentiality of information; and

(3) not later than one year after the date on which the Secretary responds to the written request, issue written guidance on such policy, question, or interpretation through such means as the Secretary determines to be appropriate and consistent with law, such as a policy memorandum, notice of interpretation, or notice of proposed rulemaking.

(f) Explanation.--Any written response by the Secretary under subsection (e) regarding a policy, question, or interpretation under part B of this Act shall include an explanation that the written response--

(1) is provided as informal guidance and is not legally binding; and

(2) represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented.

The comments and formatting were prepared by:
Peter W. D. Wright, Esq.
P. O. Box 1008
Deltaville, VA 23043
804-776-7008

http://www.wrightslaw.com
pwright@wrightslaw.com

© 1998 Peter W. D. Wright, Deltaville, Virginia.