New York Special Education Attorneys for Families in
New York State / New York City / the New York Metro Area

Special Education Law Articles and Supporting Information
from attorneys GEORGE ZELMA and DAVID BERLIN

Leveling the Playing Field - Special Education and the Law
by George Zelma, Published on the NYU Child Study Center website:
www.aboutourkids.org/articles/understanding_special_education_law
LEVELING THE PLAYING FIELD
Special Education and the Law
Focusing on IDEA

Three federal laws essentially deal with students who may have special education needs.

1. The Individuals with Disability Education Improvement Act (IDEIA) usually referred to as IDEA, is the only law that is specifically written to "level the playing field" for students with special needs.

2. Section 504 of the 1973 Rehabilitation Act is an anti-discrimination law often referred to as the Civil Rights Law for the Disabled¹. Section 504 is most often used to obtain accommodations for qualified students so that they are not discriminated against in obtaining educational opportunity. These accommodations can include assistive technology, access to education and sometimes programs and placements.

3. No Child Left Behind (NCLB) provides standards across the board for all students regardless of their disability. NCLB requires school personnel to identify students with learning issues and to provide scientifically based methods in teaching students as a gateway to special education by assessing the student's response to intervention in the mainstream. (RTI)

Introduction to IDEA

All children, classified with a disability under IDEA, have the right to a free and appropriate public education ("FAPE) in the least restrictive environment. The requirement to provide a FAPE is to ensure that all children with disabilities are provided services designed to meet their unique needs and prepare for secondary education, employment and independent living.ⁱ IDEA is the nation's special education law. IDEA is an entitlement statute, not an anti-discrimination law as is Section 504.

The term FAPE means special education services that at public expense provide an appropriate preschool, elementary school or secondary school education in conformity with an Individualized Education Program (IEP).ⁱⁱ

A School District offers a FAPE by providing personalized instruction with sufficient support services to permit the student to benefit educationally from that instruction.ⁱⁱⁱ However the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.^iv

Recently, there have been significant shifts and cross currents in the laws and regulations which recognize a special needs child's right to receive a FAPE in an appropriate educational setting. Technical or procedural errors committed by School Districts are no longer considered decisive in deciding IDEA cases. However, parents are entitled to disagree and select an appropriate program and placement when a substantive violation has occurred. Therefore, what is an appropriate program and placement to meet a child's needs is the ultimate issue for the Committee on Special Education ("CSE") to determine.

Leveling the playing field to achieve independence and self-sufficiency through special education is the intention of the statute. IDEA does not require that a school maximize the potential of each disabled student rather a School District is required to provide personalized instruction with sufficient support service to permit a child to benefit educationally, from that instruction. The IDEA statute ensures an "appropriate education, not one that provides everything that might be thought desirable by loving parents." ^v The IEP must be likely to produce progress, not regression and one that affords the student with an opportunity greater than mere "trivial advancement."^vi

IDEA requires that school districts provide education and related services to children/students with disabilities from ages 2 through 21. These educational programs and related services must be designed to address each child's unique educational needs.

IDEA outlines early intervention and other services for infants and toddlers with disabilities and their families (from birth through age 3). The infants and toddlers program was based on Congress' determination that the provision of coordinated and comprehensive early intervention services to very young children with disabilities is a critical need. Such services should facilitate the development of children. Ultimately, the services should reduce the overall cost to society. An "at risk infant or toddler" includes a child under the age of 3 who would be at risk of "experiencing a substantial developmental delay if early intervention services are not provided to the individual." ^vii Early intervention services must be designed to "meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas:

• I. Physical Development;
• II. Cognitive Development;
• III. Communication Development;
• IV. Social or Emotional Development; or
• V. Adaptive Development.^viii

Related Services for a child may be required, including qualified special educators, speech-language pathologists and audiologists; occupational therapists; physical therapists; psychologists; social workers; nurses; registered dieticians; family therapists; vision specialists, including ophthalmologists and optometrists; orientation and mobility specialists; pediatricians and other physicians.^ix

In its most utilized provisions, IDEA goes on to cover students over five years of age and continuing throughout school years until the child either graduates from high school or reaches the age of 21.

Parents who suspect or know that their child has a problem making adequate school progress should request an evaluation from their local school district. The request, called a "referral for evaluation," should be initiated in writing. The referral should be addressed to the principal of the local public school or the special education coordinator for the district, and should provide the child's name, date of birth, address, current school placement, and the suspected area of disability or special need.

Upon receipt of the referral, the school district will contact the parent to set up a meeting in order to explain the process and obtain written consent to perform the necessary evaluations. To prepare for this meeting, parents should be able to describe their child's problems in depth, providing examples of their child's difficulties in the classroom and availability to receive instruction. Parents can request evaluations that they feel are needed to understand the child's specific educational needs, such as speech and language testing, occupational therapy testing or neurological and neuropsychological testing. All evaluations needed to provide a full picture of the child's disabilities must be provided by the School District at no cost to the family.

After the referral, the district will begin the evaluation usually beginning with a social history. The law requires a comprehensive school evaluation involving all areas of suspected disability. Testing must be in the native language of the child (if feasible) and must be administered by a team of professionals, (including at least one teacher and a specialist who is knowledgeable in the area of the child's disability). Testing must be administered one-to-one, not in a group. Any tests or other evaluation materials used must be administered by professionals trained and qualified to administer them — i.e. psychological testing must be conducted by a psychologist trained to administer the specific tests utilized.

In addition to testing, an observation of the child either in school or in a comparable situation is required for an initial evaluation. It is through the observation that the child can be assessed while interacting with his peers and teachers. To ensure objectivity and cross-referencing, this observation must be conducted by a person other than the child's classroom teacher. The observation need not be done exclusively in the child's classroom, especially when the child's suspected area of disability may become manifest in larger settings, such as the lunchroom, hallways or gym. For children over twelve years of age, vocational testing is required. The 2004 amendments to IDEA strengthen the law's focus on transitioning to secondary education and vocational or other mainstream opportunity and recent case law has emphasized IDEA's focus on independence and self-sufficiency as fundamental goals for each student.

During the testing process, the parent is free to obtain privately obtained evaluative material and reports. Private evaluations can be very valuable in providing the Committee on Special Education with the expertise of specialists trained in the area of the child's disability who may have a different view or opinion than school personnel. Experts may include professionals such as neuropsychologists, psychotherapists, psychiatrists, neurologists, pediatricians, medical personnel, tutors and providers of specific reading/writing methodologies (such as Lindamood-Bell, Orton Gillingham and Wilson). Professionals who have been working with the child over time can often provide valuable depth of understanding the child's history with a long-term view of the child's needs.

A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. ^x

Meaningful Participation in Creating
The Individualized Education Program/Plan (IEP)^xi

Prepare for the IEP meeting by collecting your thoughts regarding your child's needs and share with the other members of the team, all available information such as evaluations of your child and recent educational records such as report cards and progress notes from the most recent placement so that you can meaningfully participate in the creation of plan that works to meet the needs of your child.

The IEP is developed by a local educational agency (in New York referred to as the Committee on Special Education (the CSE)) which must include:

• A representative of the school district (not the child's teacher) who is qualified to provide or supervise special education.
• The child's special education teacher(s). If the child is in a general education class and receives special education services as well, both teachers are required to attend.
• If the program to be recommended includes activities with general education students, even if the child is in a special education class in the school, a general education teacher is still required to attend.
• One or both of the child's parents. Consistent with the IDEA's stated policy, parents should expect to be full participants with school personnel in developing the IEP.
• Your child may attend the meeting. (In practice, this is rarely done.)
• Professionals who are qualified to explain the results of the testing. Usually this requires at least the presence of a psychologist or educational evaluator.
• Parents may ask others to participate who are involved with your child, for example, the child's psychologist, tutor or other provider.
• Parents may bring a representative (i.e. a lawyer or advocate) knowledgeable in the IEP process and familiar with the evaluations and educational history of your child.
• If your child is receiving related services (such as speech therapy, occupational therapy or physical therapy), it is valuable for related service personnel to attend the meeting or at least provide written recommendations concerning their services.
• New York State requires the presence of a parent member (this requirement may be only waived by the parents). A "parent member" is the parent of another child with a disability.
Parents must be notified of the meeting in writing. The notification must indicate the purpose, time and location of the meeting and list the people who will be in attendance, including the name and position of each person. If you are unable to attend at the appointed time, the meeting should be rescheduled.

Classification- Once all the evaluative material is presented and reviewed at the meeting, the IEP team must first determine whether the child is eligible for special education services. An eligible child will most often require special education intervention in order to enable him/her to receive the benefits of instruction. If the team finds the child eligible for special education, they must then classify the child. The classifications^xii include: Autism (Autism), Learning Disabled (LD), Speech Impaired (SI), Deaf/ Visually Impaired (VI), Traumatic Brain Injured (TBI), Mentally Retarded (MR), Emotionally Disturbed (ED), Hearing Impaired (HI), Orthopedically Impaired (OI).

There can be debate at the IEP meetings about a student's "eligibility." Some of the more frequently disputed classifications as defined by law to determine eligibility are listed as follows:

Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined below. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied;

Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors. (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they also have an emotional disturbance;

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 manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage;

Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance;

Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance;

Traumatic brain injury means an acquired injury to the brain caused by an external physical force or by certain medical conditions such as stroke, encephalitis, aneurysm, anoxia or brain tumors with resulting impairments that adversely affect educational performance. The term includes open or closed head injuries or brain injuries from certain medical conditions resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not include injuries that are congenital or caused by birth trauma.

After a child is classified and is therefore, eligible to receive services, an appropriate program and placement must be offered to the parents. This process is repeated every school year as an "annual review." However, testing need not be repeated annually.

The Individualized Education Program/Plan (IEP) must include:

• A statement of the child's present levels of educational performance, which describes the effects of the child's disability on all affected areas of the child's academic and non-academic school performance.
• A statement of annual goals including short-term objectives. Annual goals must describe what the child is expected to accomplish in a 12-month period in the special education program. Short-term objectives should describe the steps required to achieve the goals. Goals and objectives are specific in all areas in which the child is receiving special education services.
• A statement of the specific special education and related services to be provided to the child and the extent to which the child will participate in regular education programs. This includes such aspects as class-size, staffing ration and frequency of services.
• Provision for summer or 12 month programs when necessary.
• The projected dates for the initiation of services.

The 2004 IDEA amendments now require "a statement of the special education and related services and supplementary aids and services based upon peer reviewed research to the extent practicable, to be provided to the child." ^xiii In addition the IDEA and the regulations use the terms "Scientifically Researched Based" when referring to interventions and services provided. Read literally, all instructional methodologies should be scientifically based with peer-reviewed research. )^xiv

Functional Behavior Assessment (FBA) – An FBA may be required as part of the formulation of the IEP. An FBA enables the CSE to gain an understanding of the factors influencing the student's behaviors that impede learning. An FBA includes the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors). )^xv FBAs often have a hypothesis statement that offers a plausible explanation as to why the problem behavior is occurring. The hypothesis is formulated in a way to lead to successful intervention design to help the student. In the case of a student whose behavior impedes his or her learning or that of others, the IEP team will consider strategies including positive behavioral interventions.

After the IEP meeting, the parents must be given written notice of exactly where and how the services will be provided for their child. Most often, the suggested program will be located within the public school system in the district. When a student's disability is such that his or her needs cannot be met in the district, the school district will suggest a placement in an out-of-district program. These programs can include a Non-public Special Education School, a Residential School or Home Instruction. In all cases, parents should visit the actual programs that are recommended to observe the program and determine if the program is appropriate for their child.

Least Restrictive Environment ("LRE") means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home." ^xvi LRE has been said to be a balancing of the child's special education needs against the policy of educating children within a mainstream environment. In other words, the needs of a child, determines the LRE to meet that child's unique needs.

Transition – IDEA seeks to transition a special education student toward mainstream opportunities. Transition services means a coordinated set of activities that promotes movement from school to higher education, employment and independent living.

The IDEA has always required the School District to obtain the written consent of the parents of a student with a disability for the initial provision of special education and related services. (The requirement for consent is currently under consideration for change by the New York State Legislature.) The recent federal regulations (2008) now permit the parents of a student with a disability to withdraw their consent for continued IEP services for their child at anytime subsequent to their initial provision.

Unilateral Action by Parents under Burlington/Carter: Parents may determine that the district's recommendation fails to provide an appropriate education plan for their child. In such instances parents may seek private non-public school placement or related services to meet their child's special needs at public expense.

Impartial Hearing/Mediation -- Parents may disagree with the program or placement recommendation of the school district's IEP. In that event, parents may reject the district's recommendations by notifying the school district in a clear and concise manner of the reasons for the rejection of the IEP recommendation. The IDEA provides for two methods of resolving disputes between parents and school districts. These include Mediation or Impartial Hearing:

1. Mediation may be a viable means to review disagreements with the IEP.
2. Impartial Hearing is a formal due process proceeding that allows the parents to challenge the district's IEP in whole or in part.

Resolution Session – Prior to the Impartial Hearing a school district, within 15 days of receiving the due process complaint notice from the parent, shall convene a meeting with the parents and the school district, for the parents and the school district to have the opportunity to resolve the complaint. In New York City the parent and school usually waive the resolution session and process to Impartial Hearing.

The two seminal cases decided by the Supreme Court in this area are School Committee of the Town of Burlington v. Dept. of Education, Mass., 471 U. S. 359 (1985), and Florence County v. Carter, 510 U. S. 7 (1993).

Burlington and Carter together stand for the proposition that when the School District does not offer a family a free and appropriate public education, parents may find appropriate private programs or services for their child and the tuition will be paid or reimbursed by the school district. Parents must be well prepared to present their child's case at the Impartial Hearing. An Impartial Hearing Officer who is not employed by the school district conducts the Hearing. Generally, the school district will present witnesses to support its position that it is able to provide an appropriate education for the student. In New York, by a statute passed in 2007, the school district has the burden of proof under Prong I of Burlington/Carter to show that it offered a FAPE. Parents should present evidence, both written and oral, which supports their position that the district's program is inappropriate for their child. Under Prong II and III of Burlington/Carter the parents have the burden to prove the appropriateness of the placement and/or other services provided by the parents and, that the parents have cooperated in the IEP process and therefore, equities favor an award of tuition reimbursement. The parents may provide the testimony and reports of expert witnesses. The parents invariably testify at the Impartial Hearing focusing on the special needs of their child. The Hearing Officer will render a decision within 30 days of the Hearing. Either the School District or the parent has the right to appeal the decision. The majority of cases, however, are not appealed. The IDEA is a child-friendly law to provide special education for those who need it.

Informed and prepared parents can help achieve the results that the law so clearly intends that is, to obtain the appropriate special education programs and services that their child requires in order to receive the benefits of instruction and participate in society with independence and self-sufficiency.

---

References

¹This Act has in many ways been supplanted by the American with Disabilities Act.
ⁱ 34 CFR 300.1(a); Section 200.1(ddd) of the Regulations of the Commissioner of Education – Part 200 – Students with Disabilities
ⁱⁱ 20 USC § 1401(9) 20 USC § 1414(d)
ⁱⁱⁱBd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982)
^ivWalczak v. Florida Union Free School District 142 F3d 119, 130 (2nd Cir. 1998)
^v Walczak, supra at 132
^vi Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); Walczak , supra at 130.
^vi 20 USC 1432(1)
^vi20 USC 1432(4)( C)
^viiPart A of IDEA contains the general provisions, including purposes of the Act and definitions. Part B, the most frequently discussed Part of the Act, discusses the education of school-aged and preschool children, the funding formula, evaluations for services, eligibility determinations, Individualized Education Programs (IEPs) and educational placements. It also outlines detailed procedural safeguards, discipline provisions, as well as the withholding of funds, and judicial review. Part B also includes the Section 619 program, which provides services to children aged 3 through 5 years old.
^viii Title 34, Sec. 300.502
^ix Section 200.4 of the Regulations of the Commissioner of Education – Part 200 – Students with Disabilities
^x Section 200 200.1(zz) of the Regulations of the Commissioner of Education – Part 200 – Students with Disabilities
^xi 20 USC 1414(d)(1)(A)(ii)(V)
^xii20 USC 1414(b)(1)(A)(i)(IV)
^xiiiSection 200.1 (r) of the Regulations of the Commissioner of Education – Part 200 – Students with Disabilities
^xiv Section 200.01(cc) of the Regulations of the Commissioner of Education – Part 200 – Students with Disabilities
^xvSection 200.6 of the Regulations of the Commissioner of Education – Part 200 – Students with Disabilities
^xvi 34 CFR 300.9 (c)(3) and 300(b)(4)

Date Published: August 21, 2009

George Zelma and David Berlin serve clients throughout New York State, including New York City (Manhattan, Bronx, Queens, Brooklyn, Staten Island) all of Long Island, and all of Westchester County, Rockland County and Putnam County. Their special education practice focuses on finding proper placement and educational programs for children/students with special needs and the litigation of such cases. George Zelma recently produced a documentary to ease inclusion of students on the Autism spectrum into mainstream programs