Who is protected? Special Education

1. Chapter 5:
Who is
Protected
By: Elicena Rios
Federal and State Regulations
(EDSE4357_600_202120)
Dr. P. Huskin

2. A student is considered to have a disability as one that must require
special education services as a result of the disability. A student who
needs only related services that are not special education services is
not covered under the IDEA.
EX: A student who can participate fully in the regular classroom but
who has a mobility impairment and needs assistance in moving from
class to class may not be protected by the IDEA.

3.  IDEA=Individuals with Disabilities Education Act
The Individuals with Disabilities Education Act (IDEA) is a law that makes available
a free appropriate public education to eligible children with disabilities and ensures
special education and related services to those children.
 504 Plan= The 504 Plan is a plan developed to ensure that a child who has a
disability identified under the law and is attending an elementary or
secondary educational institution receives accommodations that will ensure their
academic success and access to the learning environment.

4. Component IDEA Section 504
What is it? A federal funding law and regulation A federal civil rights law and regulation
What is its purpose? To provide federal funds to SEA’s and
counties
To eliminate disability discrimination
Definition of disability A child aged 3-21 with 1 or more of 13
specific disabilities and who needs
special education due to a disability
A school aged child with a physical or
mental impairment that substantially
limits a major life activity who needs
special accommodations or related aids
due to disability.
FAPE Defines FAPE as special education and
related services. Can receive services
under IDEA only if they need them to
benefit from special education
Defines FAPE as regular and special
education and related aids. Students
can receive related aids even if they are
not provided any special education
IDEA vs Section 504

5. 504 example:
A student with spina bifida who is mentally and physically able to participate in the regular
academic program but who requires intermittent catheterization is possibly not disabled with the
IDEA. It is also possible that a court would treat the catheterization as a related service rather
than a reasonable accommodation.
Failure to provide needed services to these students, is probably a violation of Section 504 and
the Americans with Disabilities Act requirements to provide reasonable accommodation.
Examples of accommodations in 504 plans include:
•preferential seating.
•extended time on tests and assignments.
•reduced homework or classwork.
•verbal, visual, or technology aids.
•modified textbooks or audio-video materials.
•behavior management support.
•adjusted class schedules or grading.
•verbal testing.
https://kidshealth.org/en/parents/504-plans.html

6. Age Eligibility:
 State funding for school districts under the IDEA; states are to provide special education to all
students with disabilities as defined under the law aged three through 21, including those students
who haven suspended or expelled from school.
 Ages 3 to 5 and 18 to 21 education need only be provided to the extent consistent with state law.
 Limitations are placed on incarcerated individuals.
 For infants and toddlers up to 2 years old, grants can be awarded to an agency other than the state
education agency. The goal is early intervention as a means of reducing educational costs over the
long run, maximizing the potential for independent living, and enhancing the capacity of families to
meet the needs of this population.
 The IDEA will provide services up until the age of 21 or when the student receives a regular high
school diploma.

7. Section 504 and The Americans With Disabilities Act and Application To Special Education:
“No otherwise qualified individual with a disability shall solely by reason of her o his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance”
1st element of a Section 504 or an ADA case is determining whether the individual meets the
definition of being disabled within the stature and whether it is a situation that is not
remedied by the IDEA.
Ex: A student with a mobility impairment who cannot gain access to some areas of a school.
Ex: A student who is not allowed on the basketball team because he or she is HIV positive.

8. Who is covered: cont.
 1999 and 2002-The Supreme Court narrowed the definition of disability to exclude individuals whose
conditions were mitigated by eyeglasses or other measures such as medication for epilepsy, diabetes, and
other health conditions.
 Amendments-2008 added to the definition of what is considered to be a “major life activity”.
 New definition-Major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.
 Also includes the operation of a major bodily function, including but not limited to functions of the immune
system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions.
 Individuals with conditions such as learning disabilities, attention deficit disorder (ADD), attention deficit
hyperactivity disorder (ADHD), depression, diabetes, asthma, epilepsy, and food allergies would be protected
against discrimination and entitled to reasonable accommodations, even if they do not require special
education or related services.

9. Otherwise Qualified:
First Supreme Court case to address any issue under section 504: Southeastern Community
Collage v. Davis
The individual must be “otherwise qualified”
Programs subject to Section 504 or the ADA are not obligated to make substantial
modifications or fundamental alterations to the program to accommodate the disability.
Are required to make reasonable accommodations where these do not pose an undue
hardship on the program.

10. Reasonable Accommodation:
The reasonable accommodation requirement under both the DA and Section 504 may
mandate that services and special programming be provided.
Ex: School may be required to allow a student with asthma to carry and use an inhaler as an
exception to a rule prohibiting self-administered medication.
The school may not be required to pay for the costs of drug rehabilitation for a student
addicted to drug, it may be required to adjust attendance requirements to allow a student
to attend drug therapy sessions.

11. Gifted Students:
 Federal special education law does not include gifted students within its coverage.
 Some states do include gifted students within its coverage.
 Areas of dispute related to gifted students include what classification methods are permissible for these
students.
 Ex: IQ disputes as well as other testing instruments are used.
 Formal testing is generally a component of the gifted and talented evaluation process. Tests of
intellect (e.g., IQ) and achievement as well as personality may be administered as part of the process
which parallels the special needs disability evaluation process.
 Courts addressing these issues have been deferential to the state policy makers on their decisions.
https://www.gracepointwellness.org/1275-childhood-special-education/article/36234-gifted-and-talented-student-services

12. Students in Private Schools:
1997 and 2004 IDEA amendments provide clarification for education services for students in
out-of-districts placements and in private schools.
Current policy: The programmatic and financial responsibility of the public educational
agency depends primarily on the role the public agency had in making the placement
decision.
There is proportionate payment of educational costs and an obligation to find and identify
these students who are placed in private schools within the local school districts by the
parents.
The student is not entitled to a free and appropriate public education and does not have
the same rights under the IDEA as a student who is enrolled in public schools.

13. Incarcerated Juveniles:
 Incarcerated juveniles are often in trouble because of their disability.
 Even if the juvenile is in a detention center or incarcerated, he or she is still entitled to special education if he
or she is eligible.
 Providing these services in these circumstances is difficult. This topic is receiving increasing attention.
 Many students in these situations have not yet been identified.
 Though precise figures are difficult to come by, it is estimated that the percentage of incarcerated
youth with disabilities typically range from 30 percent to 60 percent, with some estimates as high as
85 percent. This means that in a class of 15 students, anywhere from 5 to 13 of those students are
likely to have a disability, most commonly specific learning disabilities (SLD), emotional or behavioral
disorders (EBD), intellectual disability (ID), or attention deficit hyperactivity disorders (ADHD).
https://sites.ed.gov/osers/2017/05/supporting-youth-with-disabilities-in-juvenile-corrections/

14. Students with Learning Disabilities and Related Disabilities:
 Challenges under IDEA: disagreements at the policy level about which individuals should be included in a
definition of learning disability. Another challenge is what types of services should be provided.
 Definition for learning disability under the IDEA: a “disorder in one or more of the basic psychological
processes involved in understanding or in using language, spoken or written, which disorder may manifest
itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculation.”
 The term does not include: learning problems as a result of visual, motor or hearing disabilities. Also does not
include cultural, environmental, or economic disadvantage.
 Does include: perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental
aphasia.
 More students are being identified with a learning disability. Reasons range from overburdened regular
education teachers, improperly trained personnel, and, to a lesser extent, federal reimbursement for
identifying a child as learning disabled.

15. Students with Learning Disabilities and Related Disabilities: cont.
Reasons may also include greater public awareness, improved assessment methods,
reevaluation of minority placement where students had been identified as intellectually
disabled.
ADD and ADHD: 1990 amendments to the IDEA; should not be a separate category for
ADD but listed ADD and ADHD as a specific conditions recognized as chronic or acute
health problems under the other health impaired category (OHI).
Some school districts are required to provide special services to students with ADD or
ADHD under Section 504

16. Students Who Are Emotionally Disturbed or Socially Maladjusted:
 Major challenge: Determining whether the student meets the definition of disability under any of the federal
statutes. Another challenge, trying to determine if the placement is primarily for educational reasons or for
psychological reasons or a combination of those.
 If a student has a severe emotional disturbance or is socially maladjusted at an early age, the problem comes
when this student is out of the public school system and now is in a higher education environment and if that
new college or university should be advised of these issues.
 One of the issues more likely to arise in light of recent high school settings or college campuses is whether an
institution of higher education should be informed of behavior and conduct issues or any diagnosis of an
emotional disturbance.
 Policies have not yet been resolved.

17. Case: Evans V. Independent School
District 25
936 F.2D 472 (10TH CIR. 1991)
Seriously emotionally disturbed children are clearly included within the
Education for All Handicapped Children Act [EAHCA]. 20 U.S.C. § 1401(a)(1)
[Now § 1401 (a)(3)]. The Supreme Court has noted:
Among the most poorly served of disabled students were emotionally
disturbed children: congressional statistics revealed that for the school
year immediately preceding passage of the Act, the educational needs of
82 percent of all children with emotional disabilities went unmet. Honig,
484 U.S. at 309.
Congress attempted to develop concise definitional regulations and a due
process procedure that would allow review of any classification decision.

18. Infants and Toddlers and Preschool Children:
 The earlier the intervention starts, the better able to benefit from public education the child can receive.
 Could be costly to provide early educational programs.
 Long run can have cost savings to the public.
 Student who is provided early programming will be less likely to require substantial public support after public
educational programming has been completed.
 1996 Congress amended the IDEA: Special education benefits shall be provided to children up to the age of 5.
 Updated with mandates: States should make available programming to infants and toddlers from birth to age 2 who
are disabled.
 Similar grant program: Children from ages 3 to 5 with a disability shall receive services.
 The Infants and Toddlers grant program contemplates a statewide, comprehensive, coordinated, multidisciplinary,
interagency system to provide early intervention services.

19. “Uneducable” Students:
 One of IDEA principles: Zero reject
 Education for all students with disabilities.
 Few courts have adopted a position that at least some students are uneducable.
 Supreme Court has not yet addressed this issue.
 Ex: Timothy W., born 1975, two months premature to a 15-year-old mother. Weighed only 4 lbs with numerous severe
developmental disabilities. Severe spasticity, cerebral palsy, brain damage, joint contractures, cortical blindness,
quadriplegia, severe respiratory problems, and hearing defects.
 He received some services from a child development center, but did not receive any services from the school district when
he reached school age.
 School’s initial evaluations of his eligibility for special education services determined “Timothy was not educationally
handicapped…since he was not ‘capable of benefitting’ from an education.”
 Timothy did not receive educational services for the first 3 and ½ years.

20. “Uneducable” Students cont:
 In response to attorney intervention, the school reevaluated Timothy, and the placement team recommended
a program of special education at the Child Development Center.
 School Board rejected the recommendation based on their findings that he was ineligible for services.
 Complaint was filed in federal district court.
 After 4 years the district court rendered a final decision that “under EAHCA, and initial determination as to a
child’s ability to benefit from special education must be made in order for handicapped child to qualify for
education under the Act.”
 Court held that this was an implicit part of the act and applied only in cases where there were extreme
disabilities.

21. Case: Timothy W. V. Rochester School District
875 F.2D 954 (1ST CIR. 1989)
• III. Legislative History
Not only did Congress intend that all handicapped children be educated, it expressly indicated its intent that the
most severely handicapped be given priority.
The principle author stated that the bill “assures that handicapped children in the greatest need will be given
priority by requiring that services be provided first to those children not receiving education; and second, to those
children with the most severe handicaps receiving an inadequate education.
This priority reflected congressional acceptance of the thesis that early educational intervention was very
important for severely handicapped children.
Timothy would be in the highest priority as a child who was not receiving any education at all.
Congress explicitly faced the issue of the possibility of the non-educability of the most severely handicapped.
Courts major holding is that proof of an educational benefit is a prerequisite before a handicapped child is entitled
to a public education, is specifically belied, not only by the statutory language, but by the legislative history as well.