"Inclusion: Answers to Frequently Asked Questions
from the NEA"
From Wrightslaw: This article as issued as a "guidance
response" from the U. S. Department of Education Office of Special
Education and Rehabilitation Services (OSERS) in 1994, in response to
questions from the National Education Association (NEA)
The 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
IDEA, formerly the Education of the Handicapped Act, includes Part B,
the basic grants to States program. Originally enacted in 1975 as Public
Law 94-142, Part B of IDEA provides Federal funds to assist States and
school districts in making a free appropriate public education available
to students with specified disabilities in mandated age ranges beginning
at a student's third birthday and possibly lasting to a student's twenty-second
birthday, depending on State law and practice. Students with specified
physical, mental, emotional or sensory impairments who need special education
and related services are eligible for services under Part B of IDEA. Part
B of IDEA is administered by OSEP. Department regulations implementing
Part B of IDEA are found at 34 CFR Part 300. Throughout this document,
the acronym IDEA will be used to refer to the Part B program.
Two related Federal laws, which are enforced by the Department's Office
for Civil Rights (OCR), also contain requirements relating to disabled
students in public elementary or secondary education programs. Section
504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination
on the basis of disability by recipients of Federal financial assistance,
including IDEA funds. The Section 504 regulation at 34 CFR Part 104, 104.33-104.36,
contains free appropriate public education requirements that are similar
to the IDEA free appropriate public education requirements. The Americans
with Disabilities Act of 1990 (ADA), Title II prohibits discrimination
on the basis of disability by State and local governments, whether or
not they receive Federal funds; OCR interprets the requirements of Title
II of the ADA as consistent with those of Section 504. The similarities
and differences in the requirements of the three laws are described in
further detail in the response to question 13. Generally, the responses
in this question and answer document reflect the requirements of IDEA,
unless the question specifically calls for an interpretation of Section
504, Title II of the ADA, or another Federal law.
Additional information regarding this question and answer document can
be obtained by calling either the OSERS contact person: Amy Bennett at
(202) 205-8555 or the OSEP contact person: Rhonda Weiss at (202) 205-9053;
or the OCR contact person: Karen Hakel at (202) 205-9036. Deaf and hearing
impaired individuals may call (202) 205-5465 or 1- 800-358-8247, respectively,
for TDD services.
Questions & Answers
1 . A. What does the federal law require and not require with respect
IDEA does not use the term "inclusion." However, IDEA does require school
districts to place students in the least restrictive environment (LRE).
LRE means that, to the maximum extent appropriate, school districts must
educate students with disabilities in the regular classroom with appropriate
aids and supports, referred to as "supplementary aids and services," along
with their nondisabled peers in the school they would attend if not disabled,
unless a student's individualized education program (IEP) requires some
other arrangement. This requires an individualized inquiry into the unique
educational needs of each disabled student in determining the possible
range of aids and supports that are needed. Some supplementary aids and
services that educators have used successfully include modifications to
the regular class curriculum, assistance of an itinerant teacher with
special education training, special education training for the regular
teacher, use of computer-assisted devices, provision of notetakers, and
use of a resource room, to mention a few.
In implementing IDEA's LRE provisions, the regular classroom in the school
the student would attend if not disabled is the first placement option
considered for each disabled student before a more restrictive placement
is considered. If a student with a disability can be educated satisfactorily
with appropriate aids and supports in the regular classroom in the school
the student would attend if not disabled, that placement is the LRE placement
for that student. However, if the placement team determines that a student
cannot be educated satisfactorily in that environment, even with the provision
of appropriate aids and supports, the regular classroom in the school
the student would attend if not disabled is not the LRE placement for
that student. Any alternative placement selected for the student outside
of the regular educational environment must maximize opportunities for
the student to interact with nondisabled peers, to the extent appropriate
to the needs of the student.
IDEA does not require that every student with a disability be placed in
the regular classroom regardless of individual abilities and needs. This
recognition that regular class placement may not be appropriate for every
disabled student is reflected in the requirement that school districts
make available a range of placement options, known as a continuum of alternative
placements, to meet the unique educational needs of students with disabilities.
This requirement for the continuum reinforces the importance of the individualized
inquiry, not a "one size fits all" approach, in determining what placement
is the LRE for each student with a disability. The options on this continuum
must include the alternative placements listed in the definition of special
education under 300.17 (instruction in regular classes, special classes,
special schools, home instruction, and instruction in hospitals and institutions).
1. B. Is there a Federal definition of "inclusion?"
Because Federal statutes do not use the term "inclusion," the Department
of Education has not defined that term.
2. Federal law requires the provision of necessary supports but when
inadequate fiscal or personnel resources means that one or more necessary
supports is not available, what does the Department recommend that educators
and school districts do? What can be done to ensure that the needed supports
are provided? Which agency has ultimate responsibility for providing required
special education and related services and needed supports if the responsible
school district cannot fund those services?
States receiving funds under IDEA must make a free appropriate public
education available to eligible children with disabilities. The provision
of a free appropriate public education requires that all special education
and related services identified in a student's IEP must be provided at
no cost to the parents. The term "special education" is defined at 34
CFR 300.17(a) as "specially designed instruction, at no cost to the parents,
to meet the unique needs of a child with a disability, including --
(I) Instruction conducted in the classroom, in the home, in hospitals
and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) 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 child with a disability,
and is considered special education rather than a related service under
The 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."
Under IDEA, school districts are responsible for developing and implementing
an IEP for each of their children with disabilities. The State educational
agency is responsible for ensuring that each school district develops
and implements an IEP for each child with a disability and for otherwise
ensuring that the requirements of IDEA are carried out. Ultimate responsibility
for ensuring the provision of required special education and related services
at no cost to parents is therefore with the State. IDEA does not specify
particular sources of funding for required instruction and services. Each
State may use whatever State, local, Federal, and private sources of support
are available to provide special education and related services, consistent
with State law, so long as the allocation, excess cost, and nonsupplanting
requirements of IDEA are met.
Under IDEA, lack of adequate personnel or resources does not relieve school
districts of their obligations to make a free appropriate public education
available to students with disabilities in the least restrictive educational
setting in which their IEPs can be implemented. The Department encourages
States and school districts to develop innovative approaches to address
issues surrounding resource availability. Factors that could be examined
include cooperative learning, teaching styles, physical arrangements of
the classroom, curriculum modifications, peer mediated supports, and equipment,
to mention a few.
2. B. Which, if any of the following are permissible uses of IDEA funds:
(a) professional development opportunities for educators (b) planning/release
time for educators funding all or part of the salary of an additional
Determinations of whether the expenditures listed above would be permissible
expenditures of IDEA funds must be made on a case-by-case basis. In general,
the expenditures listed above could be permissible expenditures of IDEA
funds if the school district responsible for the student's education determines
that they would be necessary for students to receive a free appropriate
public education, or, if all eligible children are receiving a free appropriate
public education, to meet other requirements of IDEA. In all instances,
the expenditures must be reasonable for the proper and efficient administration
of IDEA, and must be expended with the cost principles applicable to the
IDEA program. The expenditures must be included in the school district's
application for IDEA funds submitted to and approved by the State educational
3. Which factors legally must be considered in determining appropriate
placement for a student with a disability? Which if any factors may not
The overriding rule in placement is that each student's placement must
be individually- determined based on the individual student's abilities
and needs, and it is the individualized program of instruction and related
services reflected in each student's IEP that forms the basis for the
placement decision. In determining if a placement is appropriate under
IDEA, the following factors are relevant:
. the educational benefit to the student from regular education in comparison
to the benefits of special education;
. the benefit to the disabled student from interacting with nondisabled
. the degree of disruption of the education of other students resulting
in the inability to meet the unique needs of the student with a disability.
However, school districts may not make placements based on factors such
as the following:
. category of disability;
. the configuration of the delivery system,;
. the availability of educational or related services;
. availability of space; or
. administrative convenience.
4. Does federal law permit consideration of the impact of a regular
classroom placement on those students in the classroom who do not have
Yes. Department regulations provide that in selecting the LRE, consideration
is given to any potential harmful effect on the student or on the quality
of services that the student needs. If a student with a disability has
behavioral problems that are so disruptive in a regular classroom that
the education of other students is significantly impaired, the needs of
the disabled student cannot be met in that environment. However, before
making such a determination, school districts must ensure that consideration
has been given to the full range of supplementary aids and services that
could be provided to accommodate the unique needs of the disabled student.
If the school district determines that even with the provision of supplementary
aids and services, that student's IEP could not be implemented satisfactorily
in the regular educational environment, that placement would not be the
LRE placement for that student at that particular time, because her or
his unique educational needs could not be met in that setting.
While Department regulations permit consideration of the effect of the
placement of a disabled student in a regular classroom on other students
in that classroom, selected findings from Federally-funded research projects
indicate that: (1) achievement test performance among students who were
classmates of students with significant disabilities were equivalent or
better than a comparison group (Salisbury, 1993); (2) students developed
more positive attitudes towards peers with disabilities (CRI, 1992); and
(3) self concept, social skills, and problem solving skills improved for
all students in inclusive settings (Peck, Donaldson, & Pezzoli, 1990,
Salisbury & Palombaro, 1993).
5. Have federal legal provisions with respect to the Least Restrictive
Environment (LRE) mandate in IDEA changed in recent years? Have they changed
significantly in any other ways?
No changes have been made in the Federal LRE provisions since IDEA's LRE
mandate was first made law in 1975.
6. Does federal law require that placement decisions be revisited?
How often? How can a teacher/educator cause a child's placement decision
to be reviewed in terms of its "appropriateness?"
Under IDEA, each student's placement, among other factors, must be determined
at least annually and must be based on the student's IEP. Since each student's
IEP must be based on the student's unique educational needs, it is the
student's IEP that forms the basis for the placement decision. However,
a student's IEP cannot be revised without holding another IEP meeting,
which the school district is responsible for convening. If a teacher/educator
wishes to initiate review of the student's IEP at a point during the school
year that does not correspond with the annual IEP review, that individual
can request the school district to hold another IEP meeting. Similarly,
parents of a student with a disability have the right to request an IEP
meeting at any time. At the meeting, if the student's IEP team determines
that revisions in the IEP should be made, a proposal to change the student's
placement may be necessary to reflect the revised IEP.
7. Under what circumstances if any would the placement of large numbers
of students with disabilities in a regular classroom constitute a violation
of federal law?
If students with disabilities are placed in the regular classroom, based
on impermissible factors such as those mentioned in response to question
3 above, rather than on the basis of each student's abilities and needs
as reflected in the student's IEP, such placements would violate Federal
law. Similarly, placing disabled students in the regular classroom, without
providing them with necessary aids and supports, as reflected in their
IEPs, would violate Federal law. If a school district proposes to place
a student in a regular classroom in the school the student would attend
if not disabled, but the student's IEP could not be implemented, even
with appropriate aids and supports, such a placement would violate Federal
8. A. Some educators have been told that federal law requires EITHER
that necessary supports be provided for a child in a separate setting
OR that the child be placed in a regular setting WITHOUT necessary support
services. Is this interpretation of federal law correct? When a student
switches from a special to a regular setting, does federal law require
that necessary supports also be provided in the regular setting?
Federal law does not permit an either/or approach to placing a student
with a disability in the LRE. If a school district determines that the
IEP of a student who was placed in a separate facility could be implemented
in the regular educational environment with appropriate aids and services,
IDEA's LRE provisions require that those aids and services must be provided.
The entitlement of each disabled student to a free appropriate public
education requires a school district to provide the student with the instruction
and services reflected in that student's IEP regardless of the setting
in which that student is placed.
8. B. Under what if any circumstances may special education and related
services be used to benefit non-special needs students as well as special
needs students in a regular classroom?
IDEA funds may be expended only for the provision of special education
and related services for students with disabilities who have been determined
eligible for services under IDEA and for evaluative and diagnostic services
for students who are eligible for, or suspected of being eligible for
services under IDEA, but who have not yet been determined to have a disability.
However, the Department has advised that special education personnel may
provide services to students who have not been determined eligible, or
are not suspected of being eligible, for services under IDEA if the benefit
to the nondisabled students could be deemed "incidental." While determinations
of what constitutes an "incidental" benefit must be made on a case-by-case
basis, examples of situations where benefits conferred on nondisabled
students by special education personnel have been deemed "incidental"
include situations such as those where nondisabled students share study
sheets prepared by the special education teacher or have their questions
answered by the special education teacher, or benefit from hearing the
special education teacher's responses to questions asked by the disabled
student. If special education personnel provide instructional services
to children who are nondisabled, and who are not suspected of having disabilities
or of being eligible for services under IDEA, and the benefits conferred
are more than "incidental," the time spent providing those services may
not be charged to IDEA funds, and appropriate time-and-effort allocation
and record- keeping would be required.
9. A. What is an IEP meeting and what role does it play in decisions
about the educational program for students with disabilities?
The IEP, the written document that contains the statement for a child
with a disability of the program of specialized instruction and related
services that must constitute the basis for the student's placement must
be developed at an IEP meeting by a team or group of persons. The IEP
must be in effect prior to the provision of special education or related
services. The student's educational placement must be based on the IEP
and therefore cannot be determined prior to completion of the IEP. IEP
meetings provide an opportunity for parents, teachers and other knowledgeable
individuals to discuss the student's special educational needs and make
decisions about the program and services that the student will receive.
For students receiving special education and related services for the
first time, IDEA requires that the IEP meeting must be held within 30
calendar days of a determination that the student needs special education
and related services. Each student's IEP must be implemented as soon as
possible following the IEP meeting, that is, immediately following the
meeting, except during the summer or a vacation period, or in circumstances
that require a short delay, such as the need to work out transportation
An IEP developed in accordance with IDEA's requirements is a required
component of a free appropriate public education under IDEA, and each
disabled student eligible to receive services under IDEA must receive
special education and related services in conformity with an IEP. In particular,
each student's IEP must contain, among other elements, a statement of
goals and objectives, the specific special education and related services
to be provided to the student and the extent that the student will be
able to participate in regular educational programs, and a statement of
needed transition services under certain circumstances. In addition, any
necessary aids and supports, which could include modifications to the
regular classroom or curriculum, to facilitate regular educational placement,
must be included in the student's IEP, and must be provided to the student.
9. B. When must IEP meetings occur?
The school district is responsible for initiating and conducting meetings
to develop or review each student's IEP periodically, and if appropriate,
revise its provisions. A meeting must be held for this purpose at least
once a year. While it is the responsibility of the school district to
initiate and conduct IEP reviews, meetings must be scheduled at a time
and place mutually agreed upon by the parents and school district to ensure
that the parents have the opportunity to attend. The review requirement
does not prescribe the precise time of year at which meetings must be
held, and meetings may be held at any time during the school year, as
long as the IEPs are in effect at the beginning of each school year. Depending
on individual circumstances, meetings may be held at times such as the
end of the school year, during the summer, or on the anniversary date
of the last IEP meeting for the student. Regardless of the timing of the
annual IEP review, an IEP meeting generally must take place before a proposal
to change the student's placement can be implemented.
9. C. Who MUST legally be involved in an IEP meeting? (i.e., regular
educators? if so, which ones? Special educators? Paraprofessionals?)?
Required participants at all IEP meetings include the child's teacher,
an agency representative, who is qualified to provide or supervise the
provision of special education, the parents, subject to certain limited
exceptions, the child, if determined appropriate, and other individuals
at the parent's or agency's discretion. For a student who is being considered
for placement in special education for the first time, the teacher could
be the student's regular teacher, or a teacher qualified to provide education
in the type of program in which the child may be placed, or both. For
a student who is receiving special education, the teacher could be the
student's special education teacher. If the child is not in school or
has more than one teacher, the agency may designate which teacher will
participate in the meeting. Either the teacher or the agency representative
should be qualified in the area of the student's suspected disability.
In determining who should be the "agency representative," the nature and
extent of resources needed by the student could be relevant. Regardless
of whether the individual selected is from the building or school district
level, the agency representative must be "qualified" as described above,
and should have the authority to commit agency resources to ensure that
the student actually receives the program of instruction and services
set out in her or his IEP.
If one of the purposes of the IEP meeting is discussion of a student's
need for transition services, the student must be invited to participate.
This would apply to students beginning at age sixteen, and to students
beginning at age fourteen or younger, if determined appropriate by the
school district. The Department believes that it is especially important
for students to play an active role at IEP meetings in making decisions
regarding their future. In addition, if an agency other than the school
district is responsible for providing or paying for needed transition
services, the school district also must invite a representative of that
agency to attend.
If the IEP meeting occurs in connection with the child's initial placement
in special education,
the school district must ensure the participation of evaluation personnel,
unless the child's teacher or public agency representative or some other
person at the meeting is knowledgeable about the evaluation procedures
used with the child and the results of those procedures. Generally, there
is no requirement for related services personnel, paraprofessionals, or
regular educators to attend IEP meetings, but such individuals may be
invited to attend an IEP meeting at the discretion of the parents or agency.
Parent participation in the IEP process is extremely important. The school
district is required to take steps to ensure that one or both parents
are present at each meeting or are afforded the opportunity to participate.
The parents must be notified of their child's IEP meeting early enough
to ensure that they can attend, and the notice must inform them of the
purpose, time and location of the meeting, and the other individuals who
will be in attendance or who have been invited to attend. School districts
are also required to take steps to ensure parent participation (such as
through home visits or individual or conference telephone calls), if the
school district is unable to convince the parents to attend. In this case,
the school district must have a record of its attempts to arrange a mutually
agreed upon time and place.
9. D. In the view of the Department of Education, who SHOULD be involved,
as a matter of good practice? How can a child's teachers ensure that they
are able to attend that child's IEP meeting?
As a matter of good practice, individuals who know the student best, such
as those knowledgeable about the student's disability, and those knowledgeable
about the educational options, should attend that student's IEP meeting.
In some situations, the student's peers or other building personnel would
be the persons most familiar with the student and her or his needs. Consistent
with the importance of ensuring that persons who know a student best attend
IEP meetings, several States have enacted legislation requiring the student's
regular education teacher to attend the student's IEP meeting when the
student's placement in the regular educational environment is being considered.
The IDEA requirement that a child's teacher attend that student's IEP
meeting has been interpreted to require that only one teacher must be
in attendance, even if the student has more than one teacher. However,
if a disabled student is either placed, or being considered for placement
in a regular classroom, the school district should exercise its option
of inviting more than one teacher to attend the IEP meeting, and authorize
the student's regular teacher, as well as the student's special education
teacher, to attend the IEP meeting. It is appropriate for any teachers
considered by the school district or parents to be beneficial to the student's
success in school to attend the IEP meeting.
10. How does a teacher ensure that needed services are included in
a student's IEP? What can a teacher do if she or he is told not to put
into the IEP services which the teacher believes are necessary for the
IDEA contemplates that decisions made at IEP meetings are team decisions.
Therefore, there is no one person on a student's IEP team who has the
ultimate authority to dictate the services that an individual student
receives. One reason for the participation of the agency representative,
the individual with authority to commit agency resources, is to ensure
that the agency will provide the services that the IEP team determines
that the student needs. If 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.
11. What rights does an educator have under the federal law to file
a minority report or dissenting opinion with respect to an educational
decision with which she or he disagrees?
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
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
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
1. Medical services for diagnostic and evaluation purposes, which IDEA's
definition of "medical services" requires a licensed physician to provide;
2. School health services, which IDEA's definition of "school health services"
specifies that a qualified school nurse or other qualified person can
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
P.O. Box 1492
Washington, D.C. 20013-1492
(Deaf and hearing-impaired individuals may also call this number for TDD
Consortium on Inclusive Schooling Practices
Allegheny Singer Research Institute
320 E. North Avenue
Pittsburgh, PA. 15212
Telephone: (412) 359-1600
California Research Institute on the Integration of Students with Severe
San Francisco State University
14 Tapia Drive
San Francisco, California 94132
Telephone: (415) 338-7847
18. The Administration through its GOALs 2000 legislation is encouraging
all school districts voluntarily to adopt high achievement standards for
all students. When--if at all--is it appropriate to modify an achievement
standard for a student with a disability or any other student, or modify
the expectation of the level of attainment of a given standard? If it
is appropriate in some contexts, what guidelines and/or resources does
the Department suggest to the educators?
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
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
350 Elliot Hall
75 East River Road
Minneapolis, Minnesota 55455
20. Studies have shown that achievement test scores results for approximately
40-50% of all students with disabilities are simply not reported by schools
and/or districts for some national surveys of student achievement. When
if ever is it permissible for a school or a district to NOT report the
results of achievement tests or assessments of students with disabilities
(or other students) to local, state or federal authorities?
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.
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?
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
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?
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.
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.
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.
general precautions should educators take in order to minimize their exposure
to contagious diseases?
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.
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?
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
that 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.
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.
of this publication is available through NICHCY, courtesy of the National
Education Association. NICHCY thanks NEA for supplying this material on
disk to the Clearinghouse.