Articles

Basics of a Bright IDEA- The Individuals with Disabilities Education Act

Phillip J. Trobaugh
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Mansfield, Tanick & Cohen, P.A.
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Minneapolis, MN 55402
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©2001 Mansfield, Tanick & Cohen, P.A.

Parents who have children with disabilities and special education issues need to know the basics of a law that provides educational assistance, the Individuals with Disabilities Education Act, known as IDEA.

I. What Is IDEA?

Essentially, IDEA is an attempt to remove the barriers children with disabilities face in the educational setting. The IDEA became law in 1975, and underwent major revisions in 1997 and 1999. The IDEA law can be found at 20 U.S.C. § 1400 et seq. In the IDEA's preamble, Congress stated:

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.

20 U.S.C. § 1400 (c)(1).

The specific purpose of the law is, among other things:

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.

20 U.S.C. § 1400 (d)(1)(A). This guarantee extends to any school district which receives federal assistance. Thus, IDEA does not usually apply to students who are currently enrolled in private or parochial schools. An important exception is included later in these materials.

II. Which Children Does IDEA Apply to?

The term "child with a disability" is defined as a child

(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance ..., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.

20 U.S.C. § 1401(3)(A).

III. What Is a "Free Appropriate Public Education"?

The IDEA does not define this term, but the United States Supreme Court did in the case of Board of Education v. Rowley, 458 U.S. 176 (1982). A FAPE is defined by Rowley as special education and related services that:

1) have been provided at public expense, under public supervision and direction, without charge;

2) meet the standards of the State educational agency;

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

4) are provided in conformity with the individualized education program required under IDEA.

Further, the special educational placement of the child must be meaningful in terms of access and benefit. See id., at 188.

Parents should be aware that the IDEA is a federal law, which establishes the law of the land. However, States may have additional laws that provide additional benefits. Both the IDEA and the applicable State law must be taken together, and laws can vary widely across the country on this issue.

IV. What is an Individualized Education Program/Plan?

In order to provide a free appropriate public education for children with disabilities, school districts often prepare what are called "individualized education programs" or, IEPs for children with disabilities. 20 U.S.C. § 1414(d). Specifically, an IEP is "a detailed written statement arrived at by a multi-disciplinary team summarizing the child's abilities, outlining the goals for the child's education and specifying the services the child will receive." Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988). Parents must be allowed to participate and have input on their child's IEP. 20 U.S.C. § 1414(d)(1)(B).

V. General Components of an Appropriate IEP.

1. The IEP must be individualized. IDEA requires that each special education program must be based on a student's individual and unique needs, not the school district's previously established programs.

2. The IEP must reflect program and services provided. Generally, technical violations on an IEP will not constitute a denial of a free and appropriate education.

3. The IEP must provide an educational benefit. This usually means a steady or consistent progress. The School district needs to be able to demonstrate this progress, and that the progress data is tied to specific goals and objectives.

VI. Formation of the IEP and IEP Meetings.

1. The IEP must be in effect before placement of the child in the special education program.

2. IEP formation is separate and distinct from a child's evaluation regarding disability.

3. IEP meetings

a. How many? As many as any one child needs. Mandatory to have 1 IEP meeting every year, and periodically throughout.

b. When first initiated? Within 30 days of determination that the child needs special education.

c. Who can call an IEP meeting? School to call the first meeting and to ensure that the yearly and periodic meetings are held. Parents can request IEP meetings at any time, additionally.

d. What about notice? School district is to provide notice of such meetings, including the purpose, time, location, and who will be in attendance. Time and place should be mutually agreed upon. IEP meetings may be conducted if the parents do not wish to attend after receiving appropriate notice.

e. Who can attend IEP meetings? The list includes parents, regular and special education teacher(s)/provider(s), school representative, evaluation team representative, child, transition services representative, attorneys and lay advocates, and others with knowledge or expertise regarding the child.

VII. The IEP Decision.

The goal of the IEP meeting(s) is to arrive at a joint decision. The decision flowing from the IEP meeting(s) is not subject to a majority vote or even consensus. No one at the meeting has a veto.

If an agreement is not reached, the educational institution must formulate the IEP to the best of its ability in accordance with the information developed, affording parents their proper due process rights with regard to the plan. Hollenbeck v. Board of Educ., 699 F. Supp. 658, 667 (N.D. Ill. 1988). Disputes are handled through either mediation or a hearing, among other things, and is detailed in these materials below.

VIII. The IEP Document.

The IEP document needs to be in writing, and contain the following:

a. A statement of the child's present levels of educational performance;

b. A statement of measurable annual goals, including benchmarks or short-term objectives;

c. A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child;

d. An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and in the special education activities; a statement of any individual modifications in the administration of state or district-wide assessments of student achievement that are needed in order for the child to participate in such assessment;

e. The projected date for the beginning of the services and modifications described in the IEP, and the anticipated frequency, location, and duration of those services and modifications;

f. A statement of the needed transition services; and

g. A statement of how the child's progress toward the annual goals described in the IEP will be measured and how the child's parents will be regularly informed (by such means as periodic report cards) of their child's progress.

Technical deviations from the above will not render an IEP entirely invalid.

IX. Dispute Procedures.

Unfortunately, there may be circumstances in which the parents and the rest of the IEP team disagree with the specifics of the IEP, or there are problems in implementing the IEP. In these situations, the IDEA contemplates and provides for a three-step dispute resolution mechanism. The first stage is a "impartial due process hearing." 20 U.S.C. § 1415(f). If an acceptable resolution is not achieved, aggrieved parties may then appeal to their state's educational agency. 20 U.S.C. § 1415(g). Thereafter, a dissatisfied party may then file a civil action. 20 U.S.C. § 1415(i)(2).

At both the initial hearing and its appeal, parents are allowed to be represented by legal counsel; other rights at such proceedings include the right to present evidence, cross-examine and compel witnesses, the right to a written record of the proceeding(s), and the right to a written record of the facts and decisions made. 20 U.S.C. § 1415(h).

Additionally, IDEA also allows the parties the voluntary option to mediate their dispute in lieu of the initial hearing or the appeal therefrom. 20 U.S.C. § 1415(e). Mediation can often be a relatively fast and low-cost alternative to administrative and/or formal legal proceedings. At mediation, the parties voluntarily agree to submit the dispute to a mediator, whose job is not to decide which party "prevails." Instead, the mediator tries to work with both parties in attempt to fashion a resolution that is acceptable to all.

Parents should be aware that they may be entitled to reimbursement by the school district for their reasonable attorneys' fees in connection with representation at such hearings, if the parents prevail at the hearing. 20 U.S.C. § 1415(i)(3). To be considered to have "prevailed," the parents must have succeeded on any significant issue in litigation which achieved some of the benefit sought. Texas Teachers' Assoc. v. Garland Independent School District, 489 U.S. 782, 791 (1983). Attorneys fees may also be awarded if the IDEA action is settled or mediated. Barlow-Gresham Union High School Dist. 2 v. Mitchell, 940 F.2d 1280, 1285 (9^th Cir. 1991). A very recent U.S. Supreme Court case, however, may deny attorneys fees in such settlements. Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 121 S.Ct. 1835 (2001) held that a "prevailing party" is one who has been awarded some relief by a court. Settlement and/or mediation is not an award from a court.

Finally, as a general matter, attorneys' fees will not be reimbursed as a result of an attorney's attendance at IEP meetings, unless it is done in preparation for a due process hearing. Fenneman v. Town of Gorham, 19 IDELR 155; Rappaport v. Vance, 21 IDELR 709.

X. Private School Reimbursement.

Parents may seek reimbursement for the private school expenses, but there is no longer a per se right to such reimbursement. If the public school district refuses to reimburse the private school expenses, then a hearing is held, and reimbursement will be awarded if the public school district is unable to prove that its program is appropriate and the parent can prove the private placement is appropriate. 20 U.S.C. § 1412 (a)(10)(C)(ii); 34 C.F.R. § 300.403 (2001). This is known as the Burlington test, a fact-intensive determination with a legal presumption favoring the School District. The IDEA was amended in 1996 (effective 1997), which now denies an automatic right to reimbursement. Further statutes, regulations and case law round out the requirements, both procedurally and substantively.

The U.S. Supreme Court has held that parents are entitled to reimbursement for private school expenses if a) they can show that the school district failed to provide the "free appropriate public education" ("FAPE") mandated by the IDEA, and b) that their chosen private school provided an appropriate education. School Comm. of the Town of Burlington, Massachusetts v. Dep't. of Educ., 471 U.S. 359 (1985). In the lexicon of subsequent court decisions dealing with this issue, the standard has become more commonly known as the "Burlington test." This unilateral action on the part of the parents is done at "their own financial risk." Id. at 373-74.

Burlington was expanded somewhat by a subsequent decision, Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993), which allows reimbursement at a private facility that is not state approved. As one commentator noted:

This decision simply states that a student with disabilities should not be denied a free appropriate public education because the parents failed to make their unilateral placement in a facility that had received the state's stamp of approval.

Osborne, A.G., Jr., Reimbursement for Unilateral Parental Placements In Unapproved Private Schools Under IDEA, 90 Ed. Law Rep. 1, 8 (June, 1994).

The applicable portion of the IDEA reads as follows:

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private ... secondary school without consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrolment and that the private placement is appropriate. A private placement may be found to be appropriate ... even if it does not meet the State standards that apply to education.

20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.403(c).

However, the reimbursement may be reduced or denied altogether if the parents failed to notify the school district at least 10 business days prior to removal of the child from public school. 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb); 34 C.F.R. § 300.403(d)(1)(ii) (emphasis supplied). Other conditions which could reduce or deny reimbursement are if: a) the parents failed to inform the school district that they were rejecting the proposed IEP; b) before removal the school district gave notice of its intent to evaluate the child; or c) there is a judicial finding that the parents' actions were unreasonable. 20 U.S.C. §§ 1412(a)(10)(C)(iii)(I)(aa), (II)-(III); 34 C.F.R. §§ 300.403(d)(1)(i), (d)(2)-(3).

There are exceptions to these limitations. Most notably, if complying with the parental notice requirements (i.e., either the notice of rejecting the IEP proposal, or the 10 day notice prior to removal) would "likely result in physical or serious emotional harm to the child," then there will not be a reduction or denial of the reimbursement. 20 U.S.C. § 1412(a)(10)(C)(iv)(II); 34 C.F.R. § 300.403(e)(2).⁽¹⁾

By way of example of how courts have handled this issue, these materials will briefly examine two cases from Minnesota. These cases are significant, as they show a) there is a presumption in favor of child's placement in public schools and b) explains the amendments to the IDEA which came into effect in 1997. The cases are briefly discussed here.

ISD No. 283 v. S.D., 88 F.3d 556 (8^th Cir. 1996) - child was diagnosed with severe dyslexia and attention deficit disorder, and was given special education services within mainstream, regular classes. IEP was instituted and amended, but parents were dissatisfied and unilaterally enrolled child in a private school without the School District's consent. A 12 day hearing ensued over reimbursement. The hearing officer denied reimbursement, but review hearing officer overruled, prompting a lawsuit. District Court reaffirmed the original hearing officer's findings that reimbursement was inappropriate, which was upheld on appeal. As part of its holding, the Appeals Court found that the IDEA "enacted a strong preference that handicapped children attend regular classes with children who are not handicapped. This gives rise to a presumption in favor of [the child's] placement in the public schools." Id. at 561 (citations omitted) (emphasis supplied). Dispositive for the Court were several elements: a) there must be substantive differences between the School District's programs, and those of the private school; b) there must be a good reason why the IDEA's preference for "mainstreamed" education should be disregarded; c) where there has been open communication with the parents (including conciliation conferences), who have had a major, participative role in the education process, the presumption for the School District is buttressed; and d) only those procedural and technical deficiencies of the IEP which "materially affect the resolution" of the reimbursement issue will be considered.

Peter v. Wedl, 155 F.3d 992 (8^th Cir. 1998) - child had severe physical disabilities requiring the use of a full-time paraprofessional. Parents eventually enrolled child in a private, religious school, and sought reimbursement only for the hiring and use of the paraprofessional, which it refused to do. The case dealt with a number of issues, including the Establishment and Free Exercise Clauses to the U.S. Constitution, as well as state law. The case straddled the implementation of amendments to the IDEA, and the Court held that these amendments "substantially limited the rights of disabled children enrolled by their parents in a private school." Id. at 998. The Court repeated its language from another case:

'[t]he 1997 Amendments expressly provide that public school agencies are not required to pay the costs of special education services for a particular child,' and that disabled children and their 'parents now have no individual right under IDEA to [specific] special education and related services ..., so they have no right to a federal decree mandating that those services be provided at a particular location.'

Id. (quoting Foley v. Special School Dist. of St. Louis County, 153 F.3d 863, 865 (8^th Cir. 1998) (emphasis supplied). The Court went on to discuss whether the School District had violated the IDEA in regards to its status before the Amendments went into effect, and determined that it had, as well as remanding for a determination of religious discrimination.

XI. The Out-of-State School Issue.

There may be instances where the child's special education needs are better met at an institution in a state other than where the child normally resides. A recent case indicates that this may add an additional hurdle to securing reimbursement for the tuition and fees.

J.B. v. Killingly Bd. of Educ., 990 F. Supp. 57 (D. Conn. 1997) held that if a state does not have the facilities to educate a child with a specific disability, an out-of-state residential placement will be appropriate under IDEA if it is first approved by the commissioner or the local or regional board of education. This case seems to say that the out-of-state school must provide something that cannot be obtained in the state where the child and his parents normally reside. It is unclear how Killingly Bd. of Educ. squares with the U.S. Supreme Court's pronouncement in Florence County, cited above.

XII. Resources.

For more information, the following websites are helpful concerning IDEA issues:

• The U.S. Department of Education funds an organization called IDEApractices, which is an umbrella group that supplies information and support services related to the IDEA.
  www.ideapractices.org

• National Early Childhood Technical Assistance System
  www.nectas.unc.edu/idea/idea.asp

• Office of Special Education Program
  www.ed.gov/offices/OSERS/OSEP/#IDEA '97

• National Eye Health Education Program
  www.nei.nih.gov/nehep/

• National Education Association
  www.nea.org/

1. Other exceptions include where: a) the parent is illiterate and cannot write in English, b) the school prevented the parents from providing notice, and c) school district failed to provide notice. 20 U.S.C. §§ 1412(a)(10)(C)(iv)(I), (III)-(IV); 34 C.F.R. §§ 300.403(e)(1), (3).