WHT Law

Educational Mandates for Children with Disabilities with Disabilities

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Educational Mandates for Children with Disabilities:
School Policies, Case Law, and the School Social Worker

What Are the Educational Rights of Children with Disabilities?

How Does the Special Education System Work?

What Is the Role of the Local School System?

Who Is the Child with Disabilities?

What Is Special Education?

What Are Related Services?

What Services Must the School Provide?

What Is Placement in the Least Restrictive Environment?

What Are Placement Procedures?

Can Students with Disabilities Be Suspended or Expelled?

What Are Provisions for Mediation and for an Impartial Due Process Hearing?

What Are Due Process and Judicial Review?

What Is an Individualized Education Program?

This chapter is one of several in the book that focus on the implementation for school social workers of the mandate to provide a free appropriate public education (FAPE) to children with disabilities. Chapter 6 focused on the court decisions that defined the right. Here we provide an overview of the law and its interpretation in court decisions. Chapter 11 will focus on clinical and educational program development for preschool children with disabilities. Section III will discuss least restrictive environment and inclusion, the social developmental study, and the Individualized Education Program.

The Individuals with Disabilities Education Act (IDEA) and its accompanying regulations requires that every state and the District of Columbia ensure FAPE is available to all children with disabilities. The education of unserved or underserved children with disabilities has a clear priority over the education of children already receiving services. Such services must be provided to all qualifying children with disabilities without regard to their particular ability to benefit from special education and with no financial needs test. The act is heavily parent/guardian oriented and requires states to maximize parental involvement in educational decision making every step of the way. A formal administrative system for the resolution of disputes may be invoked by the schools or the parents of pupils with disabilities. Throughout this system, detailed steps of identification, evaluation, determination of eligibility, planning, service, and administrative appeals are set forth. The school social worker, as a school staff member, is an important figure throughout. Working knowledge of the requirements of the act is a necessity for school social workers, who inevitably work with children with disabilities and the special education system.

WHAT ARE THE EDUCATIONAL RIGHTS OF CHILDREN WITH DISABILITIES?

Over a period of twenty-five years a cumulative body of law, court decisions, and policies has developed in relation to the educational rights of children with disabilities to a FAPE. These became summarized in IDEA and its amendments, the most recent being P.L. 105-117, signed into law June 4, 1997. When we refer to the law, we are referring to legal principles in the law, codified in 20 United States Code, sections 1401-1468 (cited as 20 U.S.C. 1401-1468). When we refer to regulations, we are referring to 34 Code of Federal Regulations parts 300 and following (here cited as 34 C.F.R. 300 ff). These are frequently updated, as the law and its regulations develop, and can be found in any law library. For the school social worker in the United States, the contents of this book furnish a general update on the most recent provisions of the law through 1997. It is important for social workers in the United States to be familiar with this evolving body of law and its updates in order to design school social work roles that help the school respond to these mandates. For the international reader, practicing in a different legal orbit, it is important to see the relation of law to school policy and from this to the school social worker’s role. The legal context for schooling needs to be taken into account to develop the school social worker’s role. A large part of the law deals with the protection of vulnerable groups. It is out of this legal framework, as well as the educational mission of the school in any particular society, that the school social worker’s role is constructed.

In the face of some neglect of children with disabilities prior to 1968, the rights of these children to a FAPE have had considerable development in the United States. In a classic statement of this tradition, culminating in the 1997 amendments to IDEA, Turnbull and Turnbull summarize it in the form of six rights:

  1. The right to attend school-the principle of zero reject. Each school-age person with a disability has the right to be educated in a system of FAPE. Agencies and professionals may not expel or suspend students for certain behaviors or without following certain procedures; they may not exclude students on the basis that they are incapable of leaning; and they may not limit the access of students to school on the basis of their having contagious diseases.
  2. The right to a fair appraisal of their strengths and needs-the principle of nondiscriminatory evaluation. Socioeconomic status, language, and other factors need to be discounted and must not bias the student’s evaluation; agencies and professionals must obtain an accurate, nonbiased portrait of each student. Decisions need to be based on facts, not simply categories: on what students are doing and are capable of doing, in relation to behavioral outcomes individualized for the student. The resulting education would remedy the student’s impairments and build on strengths.
  3. The right to a beneficial experience in school-the principle of free appropriate public education-means that schools must individualize each student’s education, provide needed related services, engage in a fair process for determining what is appropriate for each student, and ensure that the student’s education indeed confers a benefit. Education must have a positive outcome for each student. The emphasis of this discussion is not simply on provision of access to education but on adapting the system and on building capacities in the person with a disability so that certain results are attained.
  4. The right to be included in the general education curriculum and other activities – the principle of the least restrictive environment – means that the schools must include the student in the general education program and may not remove a student from it unless the student cannot benefit from being in that program, even after the provision of supplementary aids and services and necessary related services.
  5. The right to be treated fairly – the principle of procedural due process – means that the school must provide certain kinds of information (notice and access to records) to students, special protection when natural parents are unavailable (surrogate parents), and access to a fair hearing process.
  6. The right to be included in the decision-making process – the principle of parent and student participation – means the schools must structure decision-making processes (including policy decisions on a statewide level) in such a way that parents and students have opportunities to affect meaningfully the education the students are receiving. A related principle of enhanced accountability to pupils and parents is moving in the direction of report cards related to individualized goals and educational programs.1

Building on this concept of educational rights, the term “free appropriate public education” means special education and related services that:

  1. Have been provided at public expense, under public supervision and direction, and without charge;
  2. Meet the standards of the state educational agency and secondary school educational agency;
  3. Include an appropriate preschool, elementary, or secondary school education in the state involved; and
  4. Are provided in conformity with a student’s individualized education program (20 U.S.C. 1401(8)).

HOW DOES THE SPECIAL EDUCATION SYSTEM WORK?

It is important to understand the impact of laws, court decisions, and policies on state and local educational systems. To respect the rights of children with disabilities to a FAPE and to qualify for federal financial assistance under IDEA, a state must demonstrate that it “has in effect a policy that assures all handicapped children the right to a free appropriate, public education” (26 U.S.C. 412(1)). That policy must be written in the form of a “state plan” and is subject to reapproval every three years by the U.S. Department of Education.

Children receiving no education are to have priority over those receiving some form of education (20 U.S.C. 1412(3)). Children with disabilities must be educated to the maximum extent appropriate with children who are not disabled. This is called the “least restrictive environment” mandate (20 U.S.C. 1412(5)). The FAPE required by IDEA must be tailored to the unique needs of each child, through a document called an “individualized education program” (IEP) prepared at a formal meeting between a qualified representative of the local education agency (LEA), the child’s teacher, the child’s parents or guardian, and, where appropriate, the child.3 Parental involvement and consultation in this process must be maximized.4

IDEA also imposes on the states detailed procedural requirements, that is, a set of  rules outlining exactly how the educational rights of children with disabilities are to be protected. The rights of parents to consent to the provision or termination of special education services, to question the decisions of educational personnel, and to invoke a highly specific administrative hearing process are all outlined in IDEA (20 U.S.C. 1415 et seq). Parents may request mediation or an “impartial due process hearing” to appeal virtually any educational decision.5 Any party dissatisfied with the results of the initial due process hearing may request and receive an impartial review by the state agency,6 and if not satisfied with that review, may then go to court.7

Although IDEA leaves many details to the states concerning development and implementation of particular programs, it imposes substantial requirements to be followed in the discharge of the states’ responsibilities. Noncompliance with federal procedural requirements-either in the state plan document or in implementation of federal requirements-may be sanctioned by the withholding of federal dollars flowing to the offending agency.8  For example, a state’s educational system might be investigated by the U.S. Department of Education for failing to educate children in the least restrictive environment. Such a failure would be evidenced by a pattern of educating physically disabled children in separate facilities even though the children in question may have no problems other than the physical ones that challenge them. The federal law requires education of children with disabilities to the maximum extent appropriate with nondisabled children. The failure of a particular state to meet this requirement raises a risk of sanctions.

WHAT IS THE ROLE OF THE LOCAL SCHOOL SYSTEM?

The impact of the law is ultimately to obligate the LEA to provide a FAPE with related services to all children with disabilities. The federal legal mandate requires the local school district to be the “agency of last resort” for the provision of specialized services to this population of children. Although other child welfare agencies might engage in interagency squabbles concerning who should pay for or provide services, LEAs and the respective state boards of education are not able to engage in such fingerpointing.9 Under the Illinois school code, for example, special education services not provided by another agency must be provided by the LEA or the state board of Education.10 Thus the educational sector-even in a time of shrinking resources is and has been a consistent source of dollars for children’s services.

WHO IS THE CHILD WITH DISABILITIES?

IDEA defines children with disabilities as those children evaluated as having 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, specific learning disabilities, deaf-blindness, or multiple disabilities, and who because of these impairments need special education and related services (34 C.F.R. 300.7).

Eligibility runs from birth to age twenty-one in most cases. If a child turns 21 during the school year and has not yet satisfied graduation requirements, then that child can be found eligible and receive services through that school year. The key to eligibility is both having a listed disability and needing special education and related services. Having a disability implies difficulty in dealing with one’s environment and indeed with the very programs and supports intended to help. The purpose of IDEA cannot be achieved without a profession, such as school social work, that focuses on child, family, and learning environment, each in relation to the other, and views the child as a whole.

WHAT IS SPECIAL EDUCATION?

A key to the definition of the child with a disability is that because of that disability and as a result of a complete, multifaceted, nondiscriminatory assessment (hereafter assessment), there is a need for special education and related services. We need to define these more precisely. According to IDEA, special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a disabled child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions. The term includes speech pathology, or any other related service, if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a disabled child, and is considered “special education” rather than a “related service” under State standards (34 C.F.R. 300.17).

WHAT ARE RELATED SERVICES?

Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes transportation, speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services,11 social work services in schools, and parent counseling and training (34 C.F.R. 300.16).

Social work services in schools include:

  1. Preparing a social or developmental history on a child identified as possibly having disabilities;
  2. Group and individual counseling with the child and family;
  3. Working with those problems in a child’s living situation (home, school, and community) that affect the child’s adjustment in school;
  4. Mobilizing school and community resources to enable the child to receive maximum benefit from his or her educational program (34 C.F.R. 300.16 (12); 20 U.S.C. 1402 (29)).

In a particular situation special education and related services are defined individually by a multidisciplinary team, which must include the parents. The team prepares the resulting IEP. IEPs will be discussed in some detail later in this chapter and in the book..

Social work addresses the fit between schooling and the needs of children with disabilities and their parents. A particular group of children who experience difficulties in school, and usually need social work assistance, are those who are seriously emotionally disturbed, defined as a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:

An inability to learn which cannot be explained by intellectual, sensory, or health factors.
An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
Inappropriate types of behavior or feelings under normal circumstances.
A general pervasive mood of unhappiness or depression.
A tendency to develop physical symptoms or fears associated with personal or school problems (34 C.F.R. 300.7 (9).

There is some current discussion about changing this definition to a more functional orientation.

WHAT SERVICES MUST THE SCHOOL PROVIDE?

The LEA is obligated to provide special education and related services and supplementary aids and services required so that the pupil can attain the objectives stated in the IEP. The components of an IEP are special education, related services, supplementary aids and services, program modifications, and personal support. These are to benefit the student so that he or she may:

  1. Advance appropriately toward attaining the annual goals;
  2. Be involved and progress in the general curriculum and participate in extracurricular activities and other nonacademic activities; and
  3. Be educated and participate with other children with disabilities and nondisabled children in those extracurricular and nonacademic activities (20 U.S.C. 1414 (d)(1)(a)(3)).

The mandate for use of related services is broad, going beyond special education to include what is necessary for the child to participate in general education and extracurricular activities.

Social Work Services

Under IDEA the educational sector is required to pay for related services, which may include any services required to assist a child to benefit from special education. A key issue has been what level of related services is necessary for a child to “benefit” from special education. The Rowley case involved a hearing-impaired girl who understood only about half of what was occurring in class, but who nevertheless received As and Bs because of her high intelligence.12 Her parents wanted the school to provide a full-time sign language interpreter to attend class with her, but the Supreme Court held that the student was not so entitled, as she was already receiving an “educational benefit” without the interpreter.

Rowley generally is used by schools to back up the argument that they are not required to provide the “best” education-only an education that is minimally appropriate and available. Social workers should likewise be aware that the recommendations contained in their reports should address services necessary to minimally enable the child to benefit from educational programming.

For instance, some depressed students may need nonmedical psychotherapy to attend to instructional tasks. In some cases such psychotherapy has been held to be a related service that must be provided by the schools.13 The distinction between a fundable service and a nonfundable service would turn on whether mental health services, psychotherapy, or social work services (as they are defined above) would assist a particular student to benefit from special education. In a number of decisions the courts further defined a “service-benefit” standard.14 The standard involves evaluating two criteria: (1) whether the program is designed to improve the student’s educational performance and (2) whether the program is based on the student’s classification as having a serious emotional disturbance.15

Psychotherapy

On the other hand, in another decision it was held that the service-benefit standard for determining whether psychotherapy is a related service is overbroad and inordinately encompassing. When the justification of the services is only psychological improvement, the LEA is not responsible for providing mental health services to the student.16 It must be clearly demonstrated that social work services would assist students to benefit from special education. In school social work the general language for demonstrating this is found in the above definition of school social work services. For many years school social workers have defined their practice in relation to education both in practice and in theory, as the present volume will attest. Further court decisions will clarify these boundaries.

Children Unable to Benefit from Education

A law review article has stated that there are several thousand children in the United States so lacking in brain capacity that they are unable to benefit from any educational services, no matter how elementary they are.17 The U.S. Supreme Court has declined to review a hotly contested case in which a child “lacking any cortex” was held to be entitled to related services even though he was unlikely to benefit from services.18 The Timothy W. case originated in Rochester, New Hampshire, where the school district argued that providing any services to such a hopelessly disabled child would be a waste of tax dollars better spent on less disabled children.19 In their pleadings to the Court, the attorneys for the schools, astonished by the decision of the appellate court, said that such decisions requiring school personnel to provide services to children who cannot benefit from any services “may have unfortunate consequences for families of uneducable children because [they] raise false hopes, which in turn often lead to bitterness and disillusionment” and ultimately to intensive family therapy or marital counseling.20 The U.S. Supreme Court will not, however, “read in” any exceptions to IDEA that are not present-and no exception was drawn for so-called uneducable disabled children.21

If a child needs a residential setting in order to benefit from educational programming, the schools must pay for such a setting, and there can be no charges to the parents or guardian.22 If other agencies are active and are able to pay part of the cost, such payments are allowed as long as such agencies do not charge the parent.23 When a school district writes an IEP stating that another agency is to provide some of the services, the school district is still the “agency of last resort,” and parents may rightfully turn to the schools for recompense.24

A well-known U.S. Supreme Court case has held that clean intermittent catheterization (CIC) is a related service.25 Amber Tatro needed CIC several times daily in order to stay in class and to benefit from educational services. In Tatro the schools argued that CIC was a medical service and therefore not a related service. The U.S. Supreme Court did not agree, noting that CIC was not exclusively within the province of physicians and could be administered easily by the school nurse. The school district was thus required to provide this service.

WHAT IS PLACEMENT IN THE LEAST RESTRICTIVE ENVIRONMENT?

One further principle, outlined above as one of Turnbull and Turnbull’s six points, governs the all-important placement process. This is the principle of least restrictive environment. This principle is defined in the law as follows:

To the maximum extent appropriate, children with disabilities are educated with children who are not disabled,   and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child 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) (A)).

This principle is extremely important in achieving the general purposes of IDEA. Related services in the IEP (including the school social worker’s contribution) are intended to assist the pupil to advance appropriately toward attaining his or her annual goals, to be involved and progress in the general curriculum, to participate in extracurricular and other nonacademic activities, and to be educated and to participate with other children with disabilities and nondisabled children in the general curriculum. The principle of inclusion, outlined above, presumes that the child with disabilities should participate in the general curriculum and requires the IEP to explain the extent, if any, to which the child will not participate with nondisabled children in regular classes and in extracurricular and other nonacademic activities (20 U.S.C. 1414). However, the term “inclusion” is not to be found anywhere in the IDEA legal mandate.

WHAT ARE PLACEMENT PROCEDURES?

Placement procedures make the connection between the assessment and the IEP. Disabilities are inevitably connected with social functioning in one way or another. If assessments are to be complete, multifaceted, and nondiscriminatory, as the law prescribes, the school social worker should participate in most assessments.

In some states the social worker is the person responsible for the social developmental study of the child. The social worker’s understanding of the child’s current adaptation to home and school environments, the child’s previous developmental steps, and the culture and functioning of the family is essential to any assessment. In the same vein, the annual goals for the child, the corresponding educational program and related services, as developed in the IEP, often explicitly involve tasks for the social worker with the child, with the family, and with education professionals. In the process of interpreting evaluation data and planning an IEP, the multidisciplinary team needs to:

  1. Draw on information from a variety of sources, including adaptive and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior;
  2. Ensure that information obtained from all of these sources is documented and carefully considered;
  3. Ensure that the placement decision is made by a group of persons including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options;
  4. Ensure that the placement decision is made in conformity with the least restrictive environment rules;
  5. Understand that if a child needs special education and related services, an IEP must be developed for the child (34 C.F.R. 300.533).

CAN STUDENTS WITH DISABILITIES BE SUSPENDED OR EXPELLED?

On January 20, 1988, the U.S. Supreme Court issued its opinion in Honig v. Doe.26 This strongly worded case set forth guidelines that educators have actively and hotly debated ever since. Two California cases related to Honig involved violent, acting-out pupils who were suspended “indefinitely” and later expelled under the California statute that allowed indefinite suspensions. The school district’s attorneys argued, when the cases finally reached the judicial level, that Congress could not possibly have intended that the schools be required to keep serving dangerous, emotionally disturbed pupils, when staff members and other students were at peril. The Court held that Congress “very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from schools.”27 The U.S. Supreme Court, in this case, demonstrated clearly its reluctance to read into IDEA meanings never expressed by Congress.

The net effect of this case is that a school may not remove a pupil with disabilities from school for behavior that is a manifestation of the disabling condition without the consent of the parents. If the parents refuse to consent to a relocation of the child, the school’s only recourse is to have its attorneys file a petition in a court of proper jurisdiction to obtain the permission of a judge. Although it has been argued that school authorities may make some attempt to determine the “relatedness” of the behavior to the disability, any attempts at expulsion or exclusion for behavior claimed to be unrelated to the disabling condition leaves educators on very unstable legal ground.28 Almost invariably, a court will determine that the exclusion is a “change of placement” pursued outside the mandatory multidisciplinary process and therefore in violation of federal law. The Supreme Court has clearly expressed its feeling that allowing schools to suspend pupils who are dangerous to themselves and others for up to ten days cumulatively per school year gives educational authorities sufficient time to seek parental consent, negotiate alternatives, or go to court. The 1997 amendments to IDEA have created certain circumstances (students bringing guns to school, etc.) wherein the school may go beyond the ten-day limit. Social workers facing these circumstances should consult further the complex procedures that have emerged in and from the new law.

Social workers should become familiar with the basic law of suspension and expulsion of pupils with disabilities, as they may find themselves in the position of mediating disputes between schools and families of disabled students.29  Moreover, social workers are commonly called as experts in due process hearings for the purpose of establishing whether the behavior in question is or is not related to the pupil’s disabling condition. Finally, current law relating to suspension and expulsion is a powerful tool for families of the disabled in persuading school authorities to consider more restrictive alternatives for the child, such as private extended-day school programs or residential placement, when appropriate.

WHAT ARE PROVISIONS FOR MEDIATION AND FOR AN IMPARTIAL DUE PROCESS HEARING?

It is not surprising that there can be differences between parents and others on the multidisciplinary team over a possible recommended placement for a child. Indeed the due process protection of the Fifth and the Fourteenth Amendments to the United States Constitution demands formal procedures. After all a civil right is being defined. It was the intent of the framers of P.L. 105-17 that parents and educators be encouraged to “work out their differences by using nonadversarial means” (Congressional Record, May 12, 1997, p. S4298). The resulting amendments to IDEA, passed in June 1997, prescribe a two-step process to resolve disputes prior to taking them to the courts. The first step is mediation, the second step is the impartial due process hearing. In most cases it is only after these steps have been taken, and the issue is still unresolved, that the case would go to court.

Mediation is a voluntary process conducted by a “qualified and impartial mediator who is trained in effective mediation techniques” (20 U.S.C. 1415 (e)). Mediation cannot be used to deny or delay a parent’s right to an impartial due process hearing. The state education agency would have a list of approved mediators. It would carry the cost of the mediation process. Any agreement reached by the parties to the dispute would be set forth in a written mediation agreement. Discussions in the mediation process are confidential and cannot be used as evidence in subsequent due process hearings or civil proceedings. Both parties may be required to sign a confidentiality pledge prior to the mediation process (20 U.S.C. 1415 (e) (A through G)).

The impartial due process hearing is conducted by either the state education agency or the LEA, although not by an employee involved with the education of the child. It is a somewhat more formal process than mediation. Any evaluation completed in relation to the pupil must be disclosed at least five days prior to the hearing. There are procedural safeguards: the right to be accompanied or advised by counsel and by experts, the right to present evidence and confront and to cross-examine and to compel the attendance of witnesses, the right to a verbatim record, and the right to written findings of fact and decisions. If the hearing is conducted by the LEA, its outcome may be appealed to the state education agency, where another hearing may take place. If the problem is not resolved at this point, it may be brought to court (20 U.S.C. 1415 (f) (g)). During due process hearings the child’s placement would remain the same unless he or she has not been admitted to public school. In the latter case the child would be, with the parents’ permission, placed in the public school until the completion of the proceedings.

WHAT ARE DUE PROCESS AND JUDICIAL REVIEW?

Once the second review is completed, any party dissatisfied with the result may appeal it to either state or federal court (20 U.S.C. 1415 (e) (2)) by filing a lawsuit against the other party, requesting appropriate relief.30 It is important to note that the “stay put” provision operates while all proceedings are taking place (20 U.S.C. 1415 (e) (3)). This provision requires that the child remain in his or her then-current placement during such time as due process proceedings are pending. During this time, the district must pay for all educational services in the then-current placement, and the Burlington case clearly provides that even if the parent loses at each stage of the process, the district cannot obtain reimbursement from the parent.31 The stay-put provision is thus a powerful tool for parents if proceedings commence when the pupil is in an educational setting that satisfies the parents. Most commonly, the child will be in a school-funded residential placement while the district seeks to return him or her to a local or mainstream setting, which it is important to note is one of the goals of the “inclusion” trend. If the parents request due process at this point, the child must remain in the residential setting at district expense during the pendency of all proceedings, through and including appellate court review.

Conversely, when the current placement is one that the parents feel is not appropriate, the stay-put provision operates to the benefit of the school district. In this instance, the parents’ goal is to effect an alternative placement that they and their experts feel is more appropriate than the current setting, whereas the school district usually seeks to maintain the status quo. The school district continues to pay the cost of the child’s educational placement, regardless of who requests due process.32 For younger pupils entering school for the first time, the “current” placement is interpreted by most states to be the setting in which the child would be placed in the absence of any disability. For a student with disabilities transferring from one school district to another, the current placement is determined by the student’s most recent IEP.

WHAT IS AN INDIVIDUALIZED EDUCATION PROGRAM?

The IEP is the blueprint for all that happens in the education of a child with disabilities. School districts must write an IEP before they can provide services (20 U.S.C. 1401 (18)). IDEA is quite detailed in its specification of the contents of this document (20 U.S.C. 1401 (19)). All IEPs must be reviewed annually, and parents or guardians, as outlined previously, are always entitled to question IEPs through the due process procedures (20 U.S.C. 1414 (a) (5)). Many state boards of education publish manuals on how to write an IEP, and all states have organizations and resource centers to assist parents and guardians in understanding the process of writing an IEP.

The input of the social worker during the drafting of the IEP often has a substantial effect on the recommendations made, and social work services are often among the crucial “related services” in the IEP. School districts sometimes list their recommendations for the pupil prior to drafting an IEP. This is a significant procedural error. IDEA requires the IEP to be written first, on the logical assumption that recommendations for a particular educational setting and specific services cannot possibly be made until the needs of the child are determined. When recommendations are made before the IEP is drafted, this is sometimes a good indicator that school authorities are simply offering the program they have available, rather than creating a customized program to meet all of the needs of the child. It is legally improper and a violation of IDEA for recommendations to be based on administrative convenience, costs, waiting lists, or any factor other than the needs of the child with disabilities in question.33

The parent or guardian of a child covered by IDEA must be given prior notice whenever the school district proposes a change in the educational placement of a child, or a change in its provision of a FAPE for the child (20 U.S.C. 1415 (b) (1) (c)). This notice must, at the minimum, contain a complete description of available procedural safeguards, an official explanation for the change being proposed, and the reasons why other less restrictive options were rejected (20 U.S.C. 1415 (b) (1) (d)). Although the consent of a parent or guardian is required for the initiation or termination of educational benefits, consent is not required when a district seeks to change the program for a child already in special education (34 C.F.R. 300.504(b)). Notification of proposed changes, regardless of their magnitude, is required in all instances under IDEA because the right to demand a hearing is always vested in the parent or guardian who disagrees with the changes (20 U.S.C. 1415 (b) (1) (E) to (d)). “Complete failure” to implement an IEP has been held to constitute a change in the child’s educational placement, as well as a failure to provide a FAPE.34 An IEP is not, however, a contract, nor is it a guarantee that the child will achieve the results contemplated. An IEP is a blueprint, a series of guidelines for educators to follow in conferring educational benefit and a useful document for parents to follow in determining whether those benefits are being made available.

Legislation and case law on the civil right to a FAPE for children with disabilities have created new structures of service for these children. The social worker’s services are framed in a developing body of law. It is important to understand that this law is not simply a set of procedures. It places a mandate on the school district and on the social worker to provide services that will enable children with disabilities and their families to survive in an initially unequal struggle. Here the language of the law can be translated into the language of service. The more familiar social workers are with both languages, the more able they will be to translate them into services that can redress this inequality.

In recent years, some advocates have said that the special education system is not working and that to benefit from educational services, students must be “fully included” in the mainstream. Many have gone so far as to present this concept as a “part of the law” and to tell parents this new “law” says they must cooperate in the full mainstreaming of their children. Nothing could be further from the truth. The law governing the least restrictive environment has not changed and merely requires that to the maximum extent appropriate, children with disabilities should be educated with nondisabled children. Although there is a presumption that the child with disabilities should participate in the general curriculum when appropriate, no federal law has ever mandated “full inclusion” without consideration of educational needs. Inclusion as such, discussed in Chapter 20, is often a matter of state policy. Federal law requires all school districts to make available a full continuum of alternatives from the least restrictive (such as complete mainstreaming with one resource period per day) to most restrictive (private residential placement). Part of the school social worker’s role in these cases is to work between pupil, parents, and the school to construct this environment, as we shall see in later chapters.

REFERENCES

  1. H. R. Turnbull and A. P. Turnbull, Free appropriate public education: The law and children with disabilities (Denver: Love, 1998), pp. 273-274.
  2. 20 U.S.C. 1412; 20 U.S.C. 1413. The state plan describes the goals, programs, and timetables under which the state intends to educate children with disabilities within its borders.
  3. 20 U.S.C. 1401 (18). The IEP must include at the minimum statements of present levels of educational performance, annual goals, short-term instructional objectives, specific services to be provided to the child, the extent to which the pupil will be able to be educated with nondisabled students, the projected date of initiation and anticipated duration of services, a statement of needed transition services, and various criteria for evaluating progress. 20 U.S.C. 1412(3), 1412(5), 1401(1), (19).
  4. Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, et al., U.S. 176, 73 L. Ed.2d 690, 102 S. Ct. 3034 (1982). Excluding parents from the process has, pursuant to Rowley, often been held by courts to be   a “fatal flaw” committed by educators. Spielberg v. Henrico County, E.H.L.R. 441:178. E.H.L.R. refers to Education of the Handicapped Law Review (Washington, DC: CRR Publishing).
  5. 20 U.S.C. 1415(b)(1)(D) and (E). Complaints can be brought “about any matter relating to” the child’s evaluation and education.
  6. Mayson by Mayson v. Teague. 749 F.2d 652 (1984).
  7. 20 U.S.C. 1415 (b)(2) and (c), 20 U.S.C. 11415(e)(2). A party may go to either state or federal court. Recently, plaintiffs filing in state court have been “removed” by the school district to the federal district court. This is only a good strategy where a state board of education seeks removal, as these entities are protected by Eleventh Amendment sovereign immunity, while local school districts are not protected. Dellmuth v. Muth, 109 S. Ct. 2397 (1989), Gary A. v. New Trier High School District and the Illinois State Board of   Education, 796 F.2d 940 (1986.)
  8. 20 U.S.C. 1414(b)(2)(A). Noncompliance may also be sanctioned by judicial review. U.S.C. 1416.
  9. Parks v. Pavkovic, 753 F.2d 1397 (7th. Cir. 1985). In the district court opinion, Judge Prentice Marshall said that such fingerpointing was one of the most heinous violations of federal law he could imagine.
  10. Ill. Rev. State. Ch. 122 [14-8.02].
  11. Except nondiagnostic medical services, such as ongoing medical treatment. The federal government says medical services are defined by who must provide the services, not by the specific service. If a particular nondiagnostic medical service can be provided only by a physician, the LEA need not cover it as a related service. 20 U.S.C. 1401(l7); also see Kelly McNair v. Oak Hills Local School District, H.E.L.R. 441:381 (6th Cir. 1988-89), in which the court held that special transportation need not be provided to a deaf child because the need for it was not related to her disabling condition. The statute specifically required a connection between the related service and the unique needs of the child.
  12. Rowley, 458 U.S. at 184.
  13. Max M. v. Thompson, 592 F. Supp. 1450 (1984). This student’s neurotic anxieties prevented him from attending school, and the school social worker, among others, recommended psychotherapy. The school district did not provide the therapy. The parents paid for two years of treatment and then asked for reimbursement from the district. The court held that the school was responsible for the services to the extent that a nonphysician could provide them. The district, then, had to reimburse parents for the equivalent of psychologist-provided therapy, a lower amount than the actual cost, since a psychiatrist had been th e therapist. See also In the Matter of “A” Family, 602 P.2d 157 (S.C. Mont.), holding family therapy is a related service; and Gary B. v. Cronin, 625 F.2d 563, n. 15: “While psychotherapy may be related to mental health, it may also be required before a child can derive any benefit from education” (emphasis added).
  14. See Papacoda v. Connecticut, 528 F. Supp. 68 (D. Conn. 1981). Vander Malle v. Ambach, 673 F.2d 49 (2nd Cir. 1982), further proceedings 667 F. Supp. 1015 (S.D.N.Y. 1987). Mrs. B. v. Milford Board of Education, 103 F.3d 1114 (2nd Cir. 1997).
  15. See also the discussion of these points in Turnbull and Turnbull, pp. 161-164.
  16. Clovis Unified School District v. California Office of Admin. Hearings, 903 F.2d 635 (9th Cir. 1990).
  17. R. Rothstein, Educational rights of severely and profoundly handicapped children, Nebraska Law Review 61 (1982): 586. See also Parks v. Pavkovic, 753 F.2d at 1405, in which the Court speculated about what type of child might not ever be able to benefit-and concluded that such a child would have to be in a coma.
  18. Current decisions, E.H.L.R. 441:393; Timothy W. and Cynthia W. v. Rochester, N.H. School District, E.H.L.R. Summary and Analysis, pp. 265-266 (December 1989). Federal appellate court citation: 875 F.2d 954 (1989); U.S. District Court citation: E.H.L.R. 509:141 (1987). See also article by B. R. Whitted, “Educational benefits after Timothy W.: Where do we go from here?” Illinois Administrators of Special Education Newsletter, Winter 1990.
  19. 875 F.2d at 954.
  20. Petition for Writ of Certiorari to the United States Supreme Court of Rochester NH School Dist. v. Timothy W. and Cynthia W., E.H.L.R. Summary and Analysis, 226 (November 1989).
  21. Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592 (1988). Note that the Supreme Court, in refusing to review a decision, does not in the process issue an opinion covering its reasons. The citation in this note refers to the Court’s tendency to read IDEA rigidly, and in Honig, it refused to read in a dangerousness exception to the principle that restricts exclusion of pupils with disabilities from school.
  22. Parks v. Pavkovic, 753 F.2d 11397 (7th Cir. 1985), cert. denied at 473 U.S. 906 (1985). Interprets 34 C.F.R. 300.302, among other regulatory provisions.
  23. See, e.g., the Disabled Children’s Program of the Social Security Act, 42 U.S.C. 1382 et seq.
  24. Kattan v. District of Columbia, E.H.L.R. 441:207.
  25. Amber Tatro et al. v. Irving (Tx.) Independent School District et al., 4568 U.S. 883   (1984).
  26. Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592 (1988), interpreting the “stay put” provision of the Education of the Handicapped Act, 20 U.S.C. 1415(e)(3). The authors strongly recommend that social work students read this case in its entirety. Honig is a powerful tool for advocates of special education, and a thorough knowledge of the procedures set forth by the Supreme Court is crucial.
  27. 484 U.S. at 321.
  28. M.L. Yell, Honig v. Doe: The Supreme Court addresses the suspension and expulsion of handicapped students, Exceptional Children 56 (1989) 69; also see M. L. Yell, The use of corporal punishment, suspension, expulsion, and timeout with behavioral disordered students in public schools; legal considerations, Journal of Behavior Disorders 15 (1990): 2.
  29. For further information on mediation, see C. B. Gallant, Mediation: A unique due process procedure which utilizes social skills, in R. J. Anderson, M. Freeman, and R. L. Edwards (eds.), School social work and P.L. 94-142: The Education for All Handicapped Act (Washington, DC: National Association of Social Workers, 1980). Many states have implemented the mediation process as a technique for lowering the volume of hearings, and most of the mediation systems have been quite effective. Frequently, social workers are called upon to act as impartial mediators as well as to utilize their skills in facilitating communication between the school and family.
  30. A practical note: If the parents lose and can afford an attorney, there is no reluctance to sue the district. If the district loses, there is a fair degree of reluctance on the part of the school boards to proceed with a lawsuit. One reason is that the child usually has to be sued as a “necessary party.” Another reason is expense. Insurance carriers for districts resist providing coverage for these matters, so a school board must vote to proceed knowing that the district will expend precious local dollars with no hope of recoupment. Finally, even if the district wins on the administrative level, if it is sued by the parents, the insurance carrier will resist coverage for any reimbursement costs or Protection Act attorney fees, since these are not “damages.” Tonya K. v. Chicago Public Schools et al., 551 F. Supp. 1107 (1988). The greatest pressure on a district for settlement, then, is at the end point of the administrative proceedings.
  31. See Burlington School Committee v. Department of Education, 471 U.S. 359 (1985).
  32. Note here that it is not just parents who can request due process. Schools sometimes seek to provide a service that the parents oppose. For instance, the district may want to place the child in a classroom for the retarded, while the parents may feel that their child is not retarded, but learning disabled. The parents’ refusal to consent to the “MR” placement may be met with the district’s request for due process. From a liability point of view, this is the only alternative for districts in such a position. Parents are frequently unable to accept that their child is so low functioning. The social worker is called upon to assist the parents in working through their shame and guilt, among other feelings.
  33. Timothy W. and Cynthia v. Rochester, N.H., School District EHLR 441:393. 875 F.2d 954 (1989).
  34. Lunceford v. District of Columbia Board of Education, 7455 F.2d 157, 1582 (D.C. Cir. 1984).

*The authors acknowledge the assistance of Bobby Silverstein and Malcolm Rich in the updating of this article.