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Answers to Frequently Asked Questions about the IDEA
U. S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS)
This Guidance Response was issued September 16, 1994 by the United States Department of Education Office of Special Education and Rehabilitation Services (OSERS), Washington, DC to respond to auestions from the National Education Association (NEA)
Office of Special Education Programs (OSEP) and the Office of Special
Education and Rehabilitative Services (OSERS) have been asked to provide
guidance in a question and answer format on some frequently asked
questions about the requirements of Federal law, particularly the
Individuals with Disabilities Education Act (IDEA), that are relevant
to educating students with disabilities. These questions were submitted
by the National Education Association.
term "related services" is defined at 34 CFR 300.16(a) as "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 speech pathology and audiology, psychological
services, physical and occupational therapy, recreation, including
therapeutic recreation, early identification and assessment of disabilities
in children, counseling services, including rehabilitation counseling,
and medical services for diagnostic or evaluation purposes. The term
also includes school health services, social work services in schools,
and parent counseling and training."
a teacher who is a participant on the student's IEP team believes
that particular services are appropriate for a student, the teacher
should recommend those services during the IEP meeting, which includes
the child's parents, for consideration. Once the IEP team makes a
decision as to the instruction and services that a student needs,
the school district responsible for providing education to the student
must implement the student's IEP developed at the IEP meeting. In
the example provided in this question, if "an SEA or LEA [were] to
direct teachers or other IEP team participants to not include in the
IEP special education or related services which are needed by the
child," the SEA or the LEA would be failing to comply with IDEA.
There is no provision in Federal law for an educator to file a minority report or dissenting opinion in connection with an educational decision with which she or he disagrees. Any decision made at an IEP meeting should represent the decision of the IEP team, including the child's parents. Under IDEA, parents and public educational agencies have the right to initiate an impartial due process hearing on matters regarding the identification, evaluation, educational placement, or the provision of a free appropriate public education to a child, including educational decisions resulting from IEP meetings. Therefore, if the parents agree with the concerns expressed by the educator and disagree with their child's IEP, the parents may choose to initiate a due process hearing. Similarly, if the school district believes that the IEP team's decision did not properly reflect the needs of the student, the school district could also initiate such a hearing.
12. Some school districts are mandating that referrals for any classroom support or special need must first go to a "Prereferral Team" which can then delay the referral to special education for months. Is it a federal requirement that a "Prereferral Team" review special education referrals and, if not, how can educators ensure that students who are not yet identified receive a timely referral? What is considered "timely" under federal law?
IDEA requires States and school districts to have procedures for locating, identifying, and evaluating children suspected of having disabilities and needing special education and related services. This requirement, known as child find, is applicable to children from birth through twenty-one. There are no explicit timelines in Federal law for conducting special education evaluations once a referral is made, but a student suspected of having a disability must be evaluated without undue delay. Although IDEA does not set forth a specific standard for the timing of initial evaluations, each State must establish and implement standards to ensure that the right of each student with disabilities to receive a free appropriate public education is not denied or delayed because the responsible school district does not conduct an initial evaluation within a reasonable period of time. The determination of whether the State standard for conducting a timely evaluation following the student's referral for a special education evaluation has been violated must be made on a case-by-case basis.
Many States and school districts have initiated pre-referral systems prior to referral of students for formal special education evaluation, but there is no Federal requirement that they do so. If an educator has reason to believe that a student has a disability, the State or local requirement for review by the pre-referral team could result in an impermissible delay in the student's formal special education evaluation required by IDEA. Such a determination would have to be made on a case-by-case basis depending on the particular facts and circumstances.
In instances where States and school districts have implemented prereferral systems, parents should be informed that, even while attempts are being made by school district staff to alleviate an educational problem in the regular classroom, the parents have the right to ask a school district to evaluate their child if the parents suspect that their child has a disability under IDEA. A school district can advise the parents as to why it believes that it would be appropriate to have the student participate in an intervention program before a formal evaluation is conducted. However, if the school district suspects that the student has a disability, it cannot refuse to conduct the evaluation or delay the evaluation until the interventions have been tried. If the school district disagrees with the parents and does not suspect that the student has a disability, it may refuse to conduct an evaluation. In that instance, the parents may request a due process hearing on the matter of the school district's refusal to initiate an evaluation.
13. What are the requirements for students to be eligible for federal funds under the Individuals with Disabilities Education Act (IDEA)? Does the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, or any other federal law qualify students with disabilities not covered under IDEA for special services of any kind? If so, is the method of determining which if any additional services must be provided to students covered under other federal laws but not the IDEA different from the method used under the IDEA? Must the district fund necessary support services if the student is covered under Section 504 or the ADA but not the IDEA (and therefore is ineligible for federal funds under that law)?
States receiving IDEA funds must make a free appropriate public education (FAPE) available to all children with specified disabilities in mandated age ranges. There are thirteen recognized disability categories under IDEA, which refer to specified physical, mental, emotional, or sensory impairments and a child's need for special education and related services because of an impairment. Federal financial assistance to States under IDEA is generated based on an annual child count of children with disabilities receiving special education and related services. Regardless of the amount of a State's grant, each State receiving IDEA funds and its local school districts must make FAPE available to all resident children within the State within the State's mandatory FAPE age range. Under IDEA, FAPE means special education and related services provided in conformity with IEPs at no cost to parents. Currently, all States receiving IDEA funds make FAPE available to children with disabilities beginning at their third birthday, and at least through their eighteenth birthday. Whether FAPE will be provided to students over eighteen years of age depends on State law and practice.
Section 504 and the ADA contain explicit provisions prohibiting discrimination on the basis of disability, but do not provide Federal financial assistance for educational programs. However, States and school districts must meet the requirements of these laws as a condition of receiving any Federal financial assistance, including IDEA funds. Title II of the ADA extends Section 504's prohibition against discrimination on the basis of disability to State and local governmental entities. This includes public school districts receiving Federal financial assistance as well as entities such as public libraries, whether or not they receive Federal funds.
Unlike IDEA's definition of "children with disabilities," which speaks in terms of a child's need for special education and related services because of a specific impairment, Section 504 and the ADA define a "person with a disability" in terms of a person's ability to function, i.e., whether a person has a physical or mental impairment that substantially affects the ability to perform a major life activity, e.g., learning. These differences in definitions mean that there may be students who qualify for regular or special education and related services under Section 504 but who do not have one of the 13 disabilities recognized by IDEA. For example, there may be students with Attention Deficit Disorder or drug addiction or alcoholism currently undergoing treatment for these addictions who are determined not to be eligible for services under IDEA but who may be covered by Section 504 and the ADA.
If a disabled student were covered by Section 504 and the ADA, but not eligible for services under IDEA, the school district would nevertheless be required to provide FAPE to that student in accordance with the Section 504 regulation. The Section 504 FAPE requirements relevant to educational setting, evaluation and placement, and procedural safeguards are substantially similar to the procedures required by IDEA. Both Section 504 and IDEA require the provision of required services at no cost to the parents. However, under the Section 504 regulation, FAPE consists of a program of regular or special education and related aids and services that is designed to meet the individual educational needs of persons with disabilities as adequately as the needs of nondisabled persons are met. An IEP is not required under the Section 504 regulation; however, implementation of an IEP developed in accordance with IDEA is one means of satisfying the FAPE requirements of the Section 504 regulation. Generally, it is school district practice to develop IEPs for persons with disabilities covered by Section 504.
In the example set out in this question, if the school district conducted an individual inquiry and determined that the student requires supplementary aids and services, e.g., modifications in the regular class curriculum in order to facilitate placement in a regular educational program, Section 504 and the ADA would require the school district to provide the needed supports to the student, even though the student was not determined eligible for services under the IDEA.
14. When state laws or regulations differ from federal laws or regulations, which "take precedence" and how is that decision made?
States receiving IDEA funds must ensure that their regulations are consistent with the requirements of the Federal laws and regulations, but there is no requirement that State regulations use terminology that is identical to the language of the Federal regulations. When there are differences, the determination of which regulations would take precedence would depend on the particular facts and circumstances. For example, if the State regulation creates a stricter standard of compliance than the Federal regulation under IDEA, or supplements the Federal regulation, but does not conflict with the Federal regulation under IDEA, the State regulation would control. In contrast, if the standard in the State regulation is less stringent, the State must conform its law to the Federal standard in order to receive IDEA funds.
15. Who is responsible for providing medical services to students which are considered "related services" under the IDEA? What is the Department's position on medical services being rendered by non-medical personnel who are not licensed to provide a medical service under state law? Estimates indicate that well over one-half of public schools do not have a school nurse on staff. Does the Department suggest any guidelines on how schools which do not have nurses provide "related services" required under IDEA but which no school employee is licensed to provide?
Two types of related services as defined under IDEA are mentioned in this question:
1. Medical services for diagnostic and evaluation purposes, which IDEA's definition of "medical services" requires a licensed physician to provide; and
2. School health services, which IDEA's definition of "school health services" specifies that a qualified school nurse or other qualified person can provide.
State law governs whether individuals who provide particular services must be licensed. The Department encourages States to consider using paraprofessionals to provide related services, including health services, to students with disabilities, if doing so would be consistent with State law and State personnel standards that are consistent with the requirements of IDEA. Assuming applicable State law and standards and IDEA requirements are met, determinations of the circumstances under which paraprofessionals may provide required services to students with disabilities under IDEA are matters left up to the individual State.
16. A. What does federal law have to say about allowable policies pertaining to students with disabilities whose conduct in the classroom is a serious problem and/or poses a serious threat to themselves or others?
Generally, student discipline is a State and local matter. However, when students with disabilities are involved, the requirements of IDEA and Section 504 are applicable. Under IDEA and Section 504, school districts may not remove students with disabilities from school for more than ten school days for misconduct growing out of their disability, without first determining whether the student's misconduct was related to her or his disability. However, it is permissible for school districts to remove a student with a disability from school for up to ten school days without making this prior determination. A school district may also seek a court order to remove a dangerous student if the school district believes that maintaining that student in the current educational placement is substantially likely to result in injury to that student or to others. In addition, under IDEA and Section 504, school districts may use short-term measures, short of a change in placement, if to do so would not be inconsistent with the student's IEP, and in accordance with rules that are applied evenhandedly to all students.
Under IDEA and Section 504, a removal of a student from school for more than ten school days constitutes a change in placement, which cannot be implemented without first determining whether the student's misconduct is related to the student's disability. Section 504 also requires that a reevaluation of the student be conducted prior to any change in placement. Under IDEA and Section 504, the disability-relatedness determination must be made by a group of persons, not just by any one individual, which includes persons personally familiar with the student. If the student's misconduct is determined to be related to the student's disability, the procedural safeguard requirements of IDEA and Section 504 require that the parents must be given written notice of the proposal to change the student's placement and informed that they have the right to request a due process hearing. Under IDEA and Section 504, there is no requirement that parental consent be obtained before a school district can implement a proposal to change a student's placement, regardless of whether the proposal is made for disciplinary reasons. However, some States may require that parental consent be obtained under these circumstances.
Regardless of whether the State requires that parental consent be obtained before a proposal to change the student's placement, if the parents request an impartial due process hearing under IDEA, the "stay-put" or "pendency" provision requires that the student remain in the then current educational placement unless the parents and school district agree on an interim placement. School districts that are unable to persuade parents to agree on an interim placement also may seek a court order to remove a student from school, as described above.
Students with disabilities may be subject to long- term suspension or expulsion only for misconduct that has been determined to be unrelated to the student's disability. The nondiscrimination provisions of Section 504 permit school districts to discontinue educational services for disabled students subject to long term suspension or expulsion from school for non-disability-related misconduct in the same manner as educational services could be discontinued for nondisabled students. However, IDEA requires that educational services must continue for these students during periods of disciplinary removal that exceed ten school days.
16. B. When an inclusive placement is not working (in the opinion of the professional staff) and the placement is disrupting the learning of the rest of the class, what recourse does the school have against the "stay-put" provisions of the IDEA, if the parent will not consent to a change in placement? What must the district document? Do permissible policies differ for students with disabilities as opposed to students without disabilities, and, if so, how?
In the example that you provide, the school district should review the current placement to determine whether additional aids and supports can be provided or determine whether a change in placement is appropriate. If the parents disagree with the recommended change in placement and initiate a due process hearing, and if the school district is unable to persuade the parents to agree on an interim placement, IDEA's "pendency" or "stay-put" provision would require that the student remain in the current educational placement until the completion of all proceedings. While school districts can attempt to obtain a court order under these circumstances, the school district would have to demonstrate to the court that maintaining the student in the current placement is substantially likely to result in injury to the student or to others. Disruption of the learning of classmates may not be sufficient to satisfy this burden. For nondisabled students, policies differ, in that IDEA and Section 504 requirements, such as the procedural safeguards, do not apply.
17. What information does the Department have on professional development/training approaches which special and regular educators and paraprofessionals have found helpful in implementing inclusion and other educational practices which address the needs of special needs students?
The Department has supported a variety of professional development and training projects (e.g., preservice, inservice, school restructuring projects) that address the needs of students with disabilities in inclusive schools. In addition, the Department has financed Statewide Systems Change projects which support changing the setting for delivery of educational services from separate settings to general education settings in the student's neighborhood school. Numerous materials and products have been developed by these projects which have focused on strategies that support collaborative planning and problem solving, site based control, curriculum and technological adaptations and modifications, parent and family involvement, and the creative use of human and fiscal resources. These projects have underscored the importance of timely access to resources (e.g., people, materials, information, technology) when they are needed.
Educators can obtain further information regarding these programs by contacting:
National Information Center for Children and Youth with Disabilities
One of the stated purposes of the Goals 2000: Educate America Act is to provide for the establishment of high-quality, internationally competitive content and student performance standards and strategies that all students will be expected to achieve. The term "all students" is defined to include students with disabilities, as well as students from a broad range of other diverse backgrounds and circumstances.
Under IDEA and Section 504, school districts must provide an appropriate education consistent with the individual needs of students with disabilities, and must make individualized determinations about a student's educational needs. Goals 2000 calls for a study of the inclusion of students with disabilities in school reform activities assisted under that Act, including "an evaluation of the National Education Goals and objectives, curriculum reforms, standards, and other programs and activities intended to achieve those goals."
The Department will be providing additional guidance on Goals 2000 as it affects the education of students with disabilities.
19. Are there any guidelines or resources available to educators on how to modify a student achievement assessment where a student's disability prevents the student from being able to perform the assessment in the same way as other students in the class?
Section 504 requires that testing of students with disabilities be fair and reflect their true abilities. Consequently, any necessary testing modifications must be made for students with disabilities, as appropriate. As with other matters relating to the education of students with disabilities, these determinations must be made on an individual basis in light of each student's particular abilities and needs. While some States have enacted rules or guidelines that govern testing modifications for students with disabilities, other States leave these determinations to participants on each student's IEP team. If testing modifications are included in a student's IEP or other individualized educational plan under Section 504, they must be provided to the student.
The National Center on Educational Outcomes has reference materials on various testing modifications that may be considered in individual cases. As a result of a special study funded by the Office of Special Education Programs, the National Center on Educational Outcomes has conducted research on existing guidelines for modifications through a national survey of state assessment practices and a literature survey. Their findings identify four major types of modifications used in state and national assessments that educators may want to consider in modifying tests for disabled students: alternative presentation modes, alternative response modes, alternative settings, and alternative time allotments and scheduling.
Alternative presentations include modifications such as Braille versions of test, large print editions, and orally presented instructions. Alternative response modes include the use of computers for written answers, sign language, and the use of recorders. Setting variations that are often allowed include small group or individual assessments, or in rare instances, home-based assessments. Flexibility in time allotments and scheduling also are used for some students with disabilities. Further information can be obtained from:
National Center on Educational Outcomes
Generally, it is not permissible to exclude students with disabilities from tests or from reports of results. Whether the failure to report scores for students with disabilities constitutes discrimination on the basis of disability, and thus a violation of Section 504 and the ADA depends on the particular facts and circumstances of each case, such as what is being measured. The Department anticipates addressing this issue, as the need arises, in various contexts, including in national assessments, other tests/assessments, and in the enforcement of nondiscrimination laws.
21. What are the relationships between the Americans with Disabilities Act (ADA), section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act? What if any practical implications other than those addressed in question 13 do the differences in these laws have for educators?
The Office for Civil Rights (OCR) enforces five Federal laws that prohibit discrimination on the basis of race or national origin, sex, disability and age. Four of these laws apply specifically to recipients of Federal financial assistance (the fifth applies to all activities of State and local governments, including those that do not receive Federal financial assistance). While Section 504 applies to entities that receive or benefit from Federal financial assistance, the ADA's reach is broader. It extends Section 504's prohibition against discrimination on the basis of disability to all activities of State and local governments, including those that do not receive Federal financial assistance and therefore are not covered by Section 504. Since standards for compliance with the ADA are generally the same as those of Section 504, this has little practical consequence for public school districts, all of which are recipients of Federal financial assistance. Generally, the same complaint procedures apply for Section 504 and Title II complaints.
Individuals with questions about Section 504 and Title II of the ADA
should contact the relevant Office for Civil Rights (OCR) regional
office, the addresses and telephone numbers of which are provided
in the appendix to this document, or the OCR contact person listed
in this document for further assistance. Individuals with questions
about the implementation of IDEA in your State should contact the
State director of special education in your State Department of Education,
or the OSERS or OSEP contact persons listed in this document, for
further assistance. The names, addresses, and telephone numbers of
the State directors of special education are provided in the appendix
to this document.
22. How can educators report practices to the U.S. Department of Education which are believed to be out of compliance with the Individuals with Disabilities Education Act? Does the Department place equal emphasis in its monitoring activities on inappropriate inclusion as it does on inappropriate non-inclusion?
Yes. In enforcing the free appropriate public education requirements of IDEA and Section 504, the Department must ensure that States and school districts comply with their responsibilities to educate students with disabilities in the LRE in accordance with the requirements of those laws. If the Department determines through monitoring or other compliance activities that these requirements are being misapplied, it will take whatever measures are deemed necessary to achieve compliance.
When OSEP monitors States' compliance with the requirements of IDEA, OSEP will examine whether LRE requirements are being properly implemented at the local level. If OSEP identifies instances of inappropriate placement of students with disabilities in regular educational settings, OSEP will examine whether adequate appropriate aids and supports have been provided to the affected students in those settings.
There are mechanisms under IDEA, Section 504, and the ADA for individuals and organizations subject to the protections of those laws to file complaints alleging that school districts have not educated students with disabilities in the LRE. Because IDEA is a State-administered program, complaints by individuals or organizations alleging violations of IDEA are not investigated directly by OSEP or OSERS but are referred to the relevant State Department of Education for resolution. A copy of the State complaint procedures in the IDEA regulations and a brief explanation of those procedures is provided in the appendix to this document. Individuals or organizations alleging discrimination on the basis of disability by a public school district in violation of Section 504 or Title II of the ADA may file a complaint with the relevant OCR regional office in accordance with the procedures described in the Appendix to this document.
23. What general precautions should educators take in order to minimize their exposure to contagious diseases?
Educators are in a position to have a positive impact on measures to contain the spread of contagious diseases among students and staff in schools by preventive behaviors which include the following: (1) use of universal precautions, such as hand-washing after situations that bring them in contact with body secretions; (2) immediate referral to the school health resource for any physical and/or behavioral changes that are of concern; (3) positive reinforcement for health behavior for children as part of their curriculum experience; and (4) encouraging inservice updating on infectious disease and prevention for all school personnel.
24. Does the Department have any recommendations or suggestions on what can be done to reduce the paperwork burden on educators which results from federal, state and local laws, regulations and policies? Does federal law identify any specific forms which must be completed or designate any particular party which must complete them?
The Department is sensitive to the paperwork burdens that its compliance responsibilities may involve. The collection of general information from schools is carefully scrutinized by the Department, as well as the Office of Management and Budget. The Department is constantly reviewing its regulations to reduce paperwork burdens on school districts. Most of the paperwork responsibilities thsat result from Federal reporting requirements are the responsibility of State Departments of Education rather than educators at the local school district level. In many instances, there are paperwork requirements that are burdensome for educators that are not specifically the result of a Federal requirement. Therefore, consultation at the State and local levels may be helpful in determining whether any of these paperwork requirements can be reduced or eliminated.
Federal regulations implementing civil rights statutes require recipients of Federal financial assistance to submit to the Department timely and accurate compliance reports at such times specified by the Department, which reports must contain information necessary for the Department to ascertain the recipient's compliance. Accordingly, OCR conducts a civil rights survey of elementary and secondary schools every two years, but only for a sample rather than for all schools. The survey forms must be completed by officials in those school districts selected for inclusion in the survey. The content of each survey is developed in consultation with state and school officials.
on Inclusive Schooling Practices
Research Institute on the Integration of Students with Severe Disabilities