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"Section 504" refers to the section of the
Rehabilitation Act of 1973 which guarantees certain rights to individuals
with disabilities, including AD/HD. This federal law states that no person
"... shall, solely by reason of her or 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" (Sec. 504.(a)).
No. Although a formal diagnosis is a good first step,
it does not automatically mean your child will qualify for accommodations
under Section 504. Eligibility for Section 504 is based on the existence
of an identified physical or mental impairment that substantially limits a
major life activity. The diagnosis of a learning disability is not enough;
his learning disability must significantly impact his learning or behavior.
FAPE or Free Appropriate Public Education is the
provision of special education and services at public expense in accordance
with an IEP designed to help the child receive educational benefit.
Yes. Academic performance in and of itself is not
enough to determine eligibility for services one way or another. According
to the U.S. Dept. of Education's Office of Civil Rights, "If the protections
of §504 . . . are to have any meaning for a qualified handicapped person of
superior intelligence, then the student must be entitled to implementation
of a Section 504 Accommodation Plan which allows him to achieve educational
success reasonably commensurate with his ability," (cf. 27 IDELR 858).
Thus, even if a child is receiving A or B grades in
classes, but is having difficulty paying attention in class, with behavior
at school, or at home with homework, the child may still be eligible for
accommodations. The deciding factor will be to what extent learning
disability impacts the student's ability to learn or behave in class.
No. If your child has an Individualized Education Plan
(IEP) or is receiving special education services, it does NOT automatically
mean she will be placed in a special education classroom. IDEA has a Least
Restrictive Environment (LRE) clause, which states that children should be
educated in the least restrictive environment that is still sufficient to
meet their academic needs. Therefore if your child can learn in a regular
education classroom then that is where the law says she should be placed.
No. The school is only obligated to evaluate a child if
they feel there is a substantial impact on the child's learning or behavior.
If the school chooses not to evaluate, then they must supply a written
response explaining why they refused to evaluate.
There are significant differences between Section 504
and IDEA. Perhaps the most significant is that Section 504 is is a civil
rights law, and IDEA is an educational benefit law. Sectin 504 is designed
to level the playing field for individuals with disabilities. Its purpose
is to ensure that individuals with disabilities have the same access to
education that individuals without disabilities have. It does this by
eliminating barriers that exclude individuals with disabilities from
participating in protected activities, including a free and appropriate
public education. As an educational benefit law, IDEA offers additional
services and protections for those with disabilities that are not offered to
those without disabilities.
These laws are also distinguished by the their
different eligibility requirements and the benefits they provide. The
definition of a disability is much broader under Section 504 than it is
under IDEA. All IDEA students are covered by Section 504, where as not all
Section 504 students are protected under IDEA. An IEP, which is provided
to students covered by IDEA, must be tailored to the child's unique needs
and must result in educational benefit. However, a Section 504 Plan
provides accommodations based on the child's disability and resulting
weaknesses, but does not require academic improvement.
Additionally, fewer procedural safeguards are offered
to children and parents under Section 504 than under IDEA.
LRE, or Least Restrictive Environment, is a term used
to mandate that students with disabilities are placed in special classes,
separate schools or positions other than regular education classrooms only
when the nature or severity of the disability is such that even with aids
and services education can not be achieved. The placement must also allow
the disabled student to be with non-disabled peers to the greatest extent
possible.
Maybe. A child who was denied coverage under IDEA may
qualify for coverage under Section 504. The key is whether or not the
student’s learning disability substantially impacts a major life activity.
FAPE stands for Free Appropriate Public Education.
Under Section 504, FAPE refers to the provision of regular or special
education or aids and services designed to meet the educational needs of
individuals with disabilities to the same extent that the needs of
non-disabled individuals are met.
WHO IS ENTITLED TO FAPE?
All qualified persons with disabilities within the
jurisdiction of a school district are entitled to a free appropriate public
education. The ED Section 504 regulation defines a person with a disability
as any person who (i) has a physical or mental impairment which
substantially limits one or more major life activities, (ii) has a record of
such an impairment, or (iii) is regarded as having such an impairment.[3]
For elementary and secondary education programs, a
qualified person with a disability is a person with a disability who is:
1. of an age during which it is mandatory under
state law to provide such services to persons with disabilities;
2. of an age during which persons without
disabilities are provided such services; or
3. a person for whom a state is required to
provide a free appropriate public education under the Individuals with
Disabilities Education Act (IDEA). (IDEA is discussed later in the
pamphlet.)
In general, all school age children who have
disabilities are entitled to FAPE.
HOW IS AN APPROPRIATE EDUCATION DEFINED?
An appropriate education may be defined in different
ways. An appropriate education could consist of education in regular
classes, education in regular classes with the use of supplementary
services, or special education and related services in separate classrooms
for all or portions of the school day. Special education may include
specially designed instruction in classrooms, at home, or in private or
public institutions, and may be accompanied by such related services as
speech therapy, occupational and physical therapy, and psychological
counseling and medical diagnostic services necessary to the child's
education.
An appropriate education will include:
1. educational services designed to meet the
individual educational needs of students with disabilities as adequately as
the needs of nondisabled students are met;
2. the education of each student with a disability
with nondisabled students, to the maximum extent appropriate to the needs of
the student with a disability;
3. nondiscriminatory evaluation and placement
procedures established to guard against misclassification or inappropriate
placement of students, and a periodic reevaluation of students who have been
provided special education or related services; and
4. establishment of due process procedures that
enable parents and guardians to receive required notices, review their
child's records and challenge identification, evaluation and placement
decisions and that provide for an impartial hearing with opportunity for
participation by parents and representation by counsel, and a review
procedure.
Educational Services Must Meet Individual Needs
To be appropriate, educational programs for students
with disabilities must be designed to meet their individual needs to the
same extent that the needs of nondisabled students are met. An appropriate
education may include regular or special education and related aids and
services to accommodate the unique needs of individuals with disabilities.
One way for ensuring that programs meet individual
needs is the development of an individualized education program (IEP) for
each student with a disability. IEPs are required for students participating
in special education programs of recipients of funding under the IDEA.
The quality of educational services provided to
students with disabilities must equal that provided to nondisabled students.
For example, teachers of students with disabilities must meet standards for
certification as high as those teachers of nondisabled students meet.
Facilities must be comparable and appropriate materials and equipment must
be available.
Students with disabilities may not be excluded from
participating in nonacademic services and extracurricular activities on the
basis of disability. Persons with disabilities must be provided an
opportunity to participate in nonacademic services that is equal to that
provided to persons without disabilities. These services may include
physical education and recreational athletics, transportation, health
services, recreational activities, special interest groups or clubs
sponsored by the school, referrals to agencies that provide assistance to
persons with disabilities and employment of students.
Students With Disabilities Must be Educated With
Nondisabled Students
Students with disabilities and students without
disabilities must be placed in the same setting, to the maximum extent
appropriate to the educational needs of the students with disabilities. A
recipient must place a person with a disability in the regular educational
environment, unless it is demonstrated by the recipient that the student's
needs cannot be met satisfactorily with the use of supplementary aids and
services. Students with disabilities must participate with nondisabled
students in both academic and nonacademic services, including meals, recess,
and physical education, to the maximum extent appropriate to their
individual needs.
As necessary, specific supplementary aids must be
provided for students with disabilities to ensure an appropriate educational
setting. Supplementary aids may include interpreters for students who are
deaf, readers for students who are blind, and equipment to make physical
accommodations for students with mobility impairments.
A recipient that places an individual with disabilities
in another school is responsible for ensuring that the student receives a
free appropriate public education as close to his/her home as possible.
If a recipient operates a facility for persons with
disabilities, the facility and associated activities must be comparable to
other facilities, services, and activities of the recipient.
Evaluation and Placement Must be Nondiscriminatory
Failure to provide persons with disabilities with an
appropriate education frequently occurs as a result of misclassification and
inappropriate placement. It is unacceptable to base individual placement
decisions on presumptions and stereotypes regarding persons with
disabilities or on classes of such persons. For example, it would be a
violation of the law for a recipient to adopt a policy that every student
who is hearing impaired, regardless of the severity of the child's
disability, must be placed in a state school for the deaf.
Section 504 requires the use of evaluation and
placement procedures that ensure that children are not misclassified,
unnecessarily labeled as having a disability, or incorrectly placed, based
on inappropriate selection, administration, or interpretation of evaluation
materials.
An individual evaluation must be conducted before any
action is taken with respect to the initial placement of a child who has a
disability, or before any significant change in that placement.
Recipients must establish standards and procedures for
initial and continuing evaluations and placement decisions regarding persons
who, because of disability, need or are believed to need special education
or related services.
These procedures must ensure that tests and other
evaluation materials:
? have been validated for the specific purpose for
which they are used, and are administered by trained personnel in
conformance with the instructions provided by their producer;
? include materials tailored to assess specific
areas of educational need and not merely materials that are designed to
provide a single general intelligence quotient; and
? are selected and administered so as to best ensure
that, when a test is administered to a student with impaired sensory,
manual, or speaking skills, the test results accurately reflect the
student's aptitude or achievement level or whatever other factor the test
purports to measure, rather than reflecting the student's impaired sensory,
manual, or speaking skills (except where those skills are the factors that
the test purports to measure).
Recipients must draw upon a variety of sources in the
evaluation and placement process so that the possibility of error is
minimized. All significant factors related to the learning process must be
considered.
These sources and factors include, for example,
aptitude and achievement tests, teacher recommendations, physical condition,
social and cultural background, and adaptive behavior. Adaptive behavior is
the effectiveness with which the individual meets the standards of personal
independence and social responsibility expected of his or her age and
cultural group.
Information from all sources must be documented and
considered by a group of knowledgeable persons, and procedures must ensure
that the student is placed with nondisabled students to the greatest extent
appropriate.
Periodic reevaluation is required. This may be
conducted in accordance with the IDEA regulation, which requires
reevaluation at three-year intervals or more frequently if conditions
warrant, or if the child's parent or teacher requests a reevaluation.
Recipients Must Have Due Process Procedures for the
Review of Identification, Evaluation and Placement Decisions
Public elementary and secondary schools must employ
procedural safeguards regarding the identification, evaluation, or
educational placement of persons who, because of disability, need or are
believed to need special instruction or related services.
Parents must be told about these procedures. In
addition, parents or guardians must be notified of any evaluation or
placement actions, and must be allowed to examine the student's records. The
due process procedures must allow the parents or guardians of students in
elementary and secondary schools to challenge evaluation and placement
procedures and decisions.
If parents or guardians disagree with the school's
decisions, they must be afforded an impartial hearing, with an opportunity
for participation and representation by counsel. A review procedure must be
available to parents or guardians who disagree with the hearing decision.
Recipients operating federally funded programs must
provide necessary services free of charge to students with disabilities and
their parents or guardians. Provision of a free education is the provision
of educational and related services without cost to the person with a
disability or his/her parents or guardians, except for fees equally imposed
on nondisabled persons or their parents or guardians.
If a recipient is unable to provide a free appropriate
public education itself, the recipient may place a person with a disability
in, or refer such person to, a program other than the one it operates.
However, the recipient remains responsible for ensuring
that the education offered is an appropriate education, as defined in the
law, and for coverage of financial obligations associated with the
placement.
The cost of the program may include tuition and other
related services, such as room and board, psychological and medical services
necessary for diagnostic and evaluative purposes, and adequate
transportation. Funds available from any public or private source, including
insurers,[4] may be used by the recipient to meet the requirements of FAPE.
If a student is placed in a private school because a
school district cannot provide an appropriate program, the financial
obligations for this placement are the responsibility of the school
district. However, if a school district makes available a free appropriate
public education and the student's parents or guardian choose to place the
child in a private school, the school district is not required to pay for
the student's education in the private school. If a recipient school
district places a student with a disability in a program that requires the
student to be away from home, the recipient is responsible for the cost of
room and board and nonmedical care.
To meet the requirements of FAPE, a recipient may place
a student with a disability in, or refer such student to, a program not
operated by the recipient. When this occurs, the recipient must ensure that
adequate transportation is provided to and from the program at no greater
personal or family cost than would be incurred if a person with a disability
were placed in the recipient's program.
Part B of IDEA requires participating states to ensure
that a free appropriate public education (FAPE) is made available to
eligible children with disabilities in mandatory age ranges residing in the
state. To be eligible, a child must be evaluated as having one or more of
the disabilities listed in IDEA and determined to be in need of special
education and related services. Evaluations must be conducted according to
prescribed procedures. The disabilities specified in IDEA include: mental
retardation, hearing impairments including deafness, speech or language
impairments, visual impairments including blindness, emotional disturbance,
orthopedic impairments, autism, traumatic brain injury, other health
impairments, specific learning disabilities, deaf-blindness, and multiple
disabilities. Additionally, states and local education agencies (LEAs) may
adopt the term "developmental delay" for children aged 3 through 9 (or a
subset of that age range) who are experiencing a developmental delay as
defined by the state and need special education and related services.
States and LEAs that opt to use the term "developmental
delay" still may use the disability categories in Part B of IDEA for
children with diagnosed disabilities.
The requirements for FAPE under IDEA are more detailed
than those under Section 504. In specific instances detailed in the Section
504 regulation (for example, with respect to reevaluation procedures and the
provision of an appropriate education), meeting the requirements of IDEA is
one means of meeting the requirements of the Section 504 regulation.
IDEA requirements apply to states receiving financial
assistance under IDEA. States must ensure that their political subdivisions
that are responsible for providing or paying for education for children with
disabilities meet IDEA requirements. All states receive IDEA funds. Section
504 applies to any program or activity receiving ED financial assistance.
IDEA is administered by ED's Office of Special
Education Programs (OSEP), a component of ED's Office of Special Education
and Rehabilitative Services (OSERS). For more information about IDEA,
contact OSERS at 400 Maryland Avenue, S.W., Washington, D.C. 20202.
Additional information is also available at:
www.ed.gov/offices/OSERS/OSEP/index.html.
If you would like more information about FAPE and the
other laws enforced by the Office for Civil Rights, how to file a complaint,
or how to obtain technical assistance, you may want to contact the
enforcement office that serves your state or territory. For further
information, please contact our Customer Service Team at the toll free
number: 1-800-421-3481. You may also visit our web site at
http://www.ed.gov/ocr/.
504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 794.
[2] Title II of the Americans with Disabilities Act of
1990, (ADA), 42 U.S.C. § 12131 et seq., prohibits state and local
governments from discriminating on the basis of disability. ED enforces
Title II in public elementary and secondary education systems and
institutions, public institutions of higher education and vocational
education (other than schools of medicine, dentistry, nursing, and other
health-related schools), and public libraries. The requirements regarding
the provisions of a free appropriate public education (FAPE), specifically
described in the Section 504 regulations, are incorporated in the general
non-discrimination provisions of the Title II regulation. Because Title II
does not change the requirements of FAPE, this pamphlet will refer only to
Section 504.
[3] The Section 504 regulation uses the term
"handicap." However, Congress has amended the Rehabilitation Act of 1973 and
has replaced the term "handicap" with the term "disability." The terms
"handicap" and "disability" have the same meaning. This pamphlet will only
use the term disability.
[4] A recipient responsible for providing FAPE may not
require parents to use private insurance proceeds to pay for required
services where the parents would incur financial loss.
INTRODUCTION
An important goal of the Office for Civil Rights (OCR)
is to foster partnerships between school districts and parents to address
the needs of students with disabilities. Such partnerships empower all
parties to secure quality education. OCR has experienced a steady influx of
complaints and inquiries in the area of elementary and secondary education
involving Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794 (Section 504). Most of these concern identification of students
who are protected by Section 504 and the means to obtain an appropriate
education for such students. OCR reached out to parents and school districts
to determine the kinds of assistance they needed.
Section 504 is a federal law designed to protect the
rights of individuals with disabilities in programs and activities that
receive federal funds from the U.S. Department of Education (ED). Section
504 provides: "No otherwise qualified individual with a disability in the
United States . . . shall solely by reason of her or 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 . . . ."
OCR enforces Section 504 in programs and activities
that receive funds from ED. Recipients of these funds include public school
districts, institutions of higher education, and other state and local
education agencies. The regulation implementing Section 504 in the context
of educational institutions appears at 34 C.F.R. Part 104.
The Section 504 regulation requires a school district
to provide a "free appropriate public education" (FAPE) to each qualified
student with a disability who is in the school district's jurisdiction,
regardless of the nature or severity of the disability. FAPE consists of the
provision of regular or special education and related aids and services
designed to meet the student's individual needs.
This resource document clarifies pertinent requirements
of Section 504 and responds to specific questions raised by parents and
school districts.
For additional information, please contact the Office
for Civil Rights.
1. What is the jurisdiction of the Office for Civil
Rights (OCR), the Office of Special Education and Rehabilitative Services
(OSERS) and state departments of education/instruction regarding educational
services to students with disabilities?
OCR, a component of the U.S. Department of Education,
enforces Section 504 of the Rehabilitation Act of 1973, as amended, (Section
504) a civil rights statute which prohibits discrimination against
individuals with disabilities. OCR also enforces Title II of the Americans
with Disabilities Act of 1990 (ADA), which extends this prohibition against
discrimination to the full range of state or local government services
(including public schools), programs, or activities regardless of whether
they receive any federal funding. The standards adopted by the ADA were
designed not to restrict the rights or remedies available under Section 504.
The Title II regulations applicable to free and appropriate public education
issues do not provide greater protection than applicable Section 504
regulations. This guidance focuses on Section 504.
The Office of SpecialEducation and Rehabilitative
Services (OSERS), also a component of the U.S. Department of Education,
administers the Individuals with Disabilities Education Act (IDEA), a
statute which funds special education programs.
Each state educational agency is responsible for
administering IDEA within the state and distributing the funds for special
education programs.
Section 504 prohibits discrimination on the basis of
disability in programs or activities that receive federal financial
assistance from the U.S. Department of Education. The ADA prohibits
discrimination on the basis of disability by state and local governments.
IDEA is a grant statute and attaches many specific conditions to the receipt
of Federal IDEA funds. Section 504 and the ADA are antidiscrimination laws
and do not provide any type of funding.
2. How does OCR get involved in disability issues
within a school district?
OCR receives complaints from parents, students or
advocates; 2) OCR provides technical assistance to school districts, parents
or advocates; and 3) OCR initiates reviews or specific partnership
initiatives with school districts to address disability issues.
3. Where can a school district, parent, or student get
information on Section 504?
OCR provides technical assistance to school districts,
parents, and students upon request.
4. What services are available for students who qualify
under Section 504?
Section 504 requires recipients to provide to students
with disabilities appropriate educational services designed to meet the
individual needs of such students to the same extent as the needs of
students without disabilities are met. An appropriate education for a
student with a disability under the Section 504 regulations could consist of
education in regular classrooms, education in regular classes with
supplementary services, and/or special education and related services.
5. Does OCR examine individual placement or other
educational decisions for students with disabilities?
Except in extraordinary circumstances, OCR does not
review the result of individual placement or other educational decisions so
long as the school district complies with the procedural requirements of
Section 504 relating to identification and location of students with
disabilities, evaluation of such students, and due process. Accordingly, OCR
generally will not evaluate the content of a Section 504 plan or of an
individualized education program (IEP); rather, any disagreement can be
resolved through a due process hearing. The hearing would be conducted under
Section 504 or the IDEA, whichever is applicable.
OCR will examine procedures by which school districts
identify and evaluate students with disabilities and the procedural
safeguards which those school districts provide students. OCR will also
examine incidents in which students with disabilities are allegedly
subjected to treatment which is different from the treatment to which
similarly situated students without disabilities are subjected. Such
incidents may involve the unwarranted exclusion of disabled students from
educational programs and services.
6. What protections does OCR provide against
retaliation?
A recipient is prohibited from intimidating,
threatening, coercing, or discriminating against any individual for the
purpose of interfering with any right or privilege secured by Section 504.
7. Does OCR mediate complaints?
OCR does not engage in formal mediation. However, OCR
may offer to facilitate mediation, referred to as "Resolution between the
Parties," to resolve a complaint filed under Section 504. This approach
brings the parties together so that they may discuss possible resolution of
the complaint immediately. If both parties are willing to utilize this
approach, OCR will work with the parties to facilitate resolution by
providing each an understanding of pertinent legal standards and possible
remedies. An agreement reached between the parties is not monitored by OCR.
8. What are the appeal rights with OCR?
OCR is committed to ensuring that every complaint is
appropriately resolved. If a complainant has questions or concerns about an
OCR determination, he or she may contact the OCR staff person whose name
appears in the complaint resolution letter. The complainant should address
his or her concerns with as much specificity as possible, focusing on
factual or legal questions that would change the resolution of the case.
Should a complainant continue to have questions or concerns, he or she is
advised to contact the Director of the responsible OCR field office. The
Director will review the appropriateness of the complaint resolution. If the
complainant remains dissatisfied, he or she may appeal to the Deputy
Assistant Secretary for Enforcement.
9. What does noncompliance with Section 504 mean?
A school district is out of compliance when it is
violating any provision of the Section 504 statute or regulations.
10. What sanctions can OCR impose on a school district
that is out of compliance?
OCR initially attempts to bring the school district
into voluntary compliance through negotiation of a corrective action
agreement. If OCR is unable to achieve voluntary compliance, OCR will
initiate enforcement action. OCR may: (1) initiate administrative
proceedings to terminate Department of Education financial assistance to the
recipient; or (2) refer the case to the Department of Justice for judicial
proceedings.
11. Who has ultimate authority to enforce Section 504?
In the educational context, OCR has been given
administrative authority to enforce Section 504. Section 504 is a Federal
statute that may be enforced through the Department's administrative process
or through the Federal court system. In addition, a person may at any time
file a private lawsuit against a school district.
Section 504 covers qualified students with disabilities
who attend schools receiving Federal financial assistance. To be protected
under Section 504, a student must be determined to: 1) have a physical or
mental impairment that substantially limits one or more major life
activities; 2) have a record of such an impairment, or 3) be regarded as
having such an impairment. Section 504 requires that school districts
provide a free and appropriate public education (FAPE) to qualified students
in their jurisdictions who have a physical or mental impairment that
substantially limits one or more major life activities.
12. What is a physical or mental impairment that
substantially limits a major life activity?
The determination of whether a student has a physical
or mental impairment that substantially limits a major life activity must be
made on the basis of an individual inquiry. The Section 504 regulation, at
34 C.F.R. 104.3(j)(2)(i), defines a physical or mental impairment as any
physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-urinary; hemic and
lymphatic; skin; and endocrine; or any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities. The regulation does not set
forth an exhaustive list of specific diseases and conditions that may
constitute physical or mental impairments because of the difficulty of
ensuring the comprehensiveness of such a list.
Major life activities, as defined in the Section 504
regulation at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. This list is not exhaustive. Other
functions can be major life activities for purposes of Section 504.
13. Does the meaning of the phrase "qualified student
with a disability" differ on the basis of a student's educational level,
i.e., elementary and secondary versus postsecondary?
Yes. At the elementary and secondary educational level,
a "qualified student with a disability" is a student with a disability who
is: of an age at which students without disabilities are provided elementary
and secondary educational services; of an age at which it is mandatory under
state law to provide elementary and secondary educational services to
students with disabilities; or a student to whom a state is required to
provide a free appropriate public education under the Individuals with
Disabilities Education Act (IDEA).
At the postsecondary educational level, a qualified
student with a disability is a student with a disability who meets the
academic and technical standards requisite for admission or participation in
the institution's educational program or activity.
14. Does the nature of services to which a student is
entitled under Section 504 differ by educational level?
Yes. Elementary and secondary recipients are required
to provide a free, appropriate public education to qualified students with
disabilities. Such an education consists of regular or special education and
related aids and services designed to meet the individual educational needs
of students with disabilities as adequately as the needs of students without
disabilities are met.
At the postsecondary level, the recipient is required
to provide students with appropriate academic adjustments and auxiliary aids
and services that are necessary to afford an individual with a disability an
equal opportunity to participate in a school's program. Recipients are not
required to make adjustments or provide aids or services that would result
in a fundamental alteration of a recipient's program or impose an undue
burden.
15. Once a student is identified as eligible for
services under Section 504, is that student always entitled to such
services?
No. The protections of Section 504 extend only to
individuals who meet the regulatory definition of a person with a
disability. If a recipient school district re-evaluates a student in
accordance with the Section 504 regulation at 34 C.F.R. 104.35 and
determines that the student's mental or physical impairment no longer
substantially limits his/her ability to learn or any other major life
activity, the student is no longer eligible for services under Section 504.
16. Are current illegal users of drugs excluded from
protection under Section 504?
Generally, yes. Section 504 excludes from the
definition of a student with a disability, and from 504 protection, any
student who is currently engaged in the illegal use of drugs (with
exceptions for persons in rehabilitation programs).
17. Are current users of alcohol excluded from
protection under Section 504?
No. Section 504's definition of a student with a
disability does not exclude users of alcohol. However, Section 504 allows
schools to take disciplinary action against students with disabilities using
drugs or alcohol to the same extent as students without disabilities.
EVALUATION
At the elementary and secondary school level,
determining whether a child is a qualified disabled student under Section
504 begins with the evaluation process. Section 504 requires the use of
evaluation procedures that ensure that children are not misclassified,
unnecessarily labeled as having a disability, or incorrectly placed, based
on inappropriate selection, administration, or interpretation of evaluation
materials.
18. What is an appropriate evaluation under Section
504?
Recipient school districts must establish standards and
procedures for initial evaluations and periodic re-evaluations of students
who need or are believed to need special education and/or related services
because of disability. The Section 504 regulation, at 34 C.F.R. 104.35(b),
requires school districts to individually evaluate a student before
classifying the student as having a disability or providing the student with
special education. Tests used for this purpose must be selected and
administered so as best to ensure that the test results accurately reflect
the student's aptitude or achievement or other factor being measured rather
than reflect the student's disability, except where those are the factors
being measured. Section 504 also requires that tests and other evaluation
materials include those tailored to evaluate the specific areas of
educational need and not merely those designed to provide a single
intelligence quotient. The tests and other evaluation materials must be
validated for the specific purpose for which they are used and appropriately
administered by trained personnel.
19. How much is enough information to document that a
student has a disability?
The amount of information required is determined by the
multi-disciplinary committee gathered to evaluate the student. The committee
should include persons knowledgeable about the student, the meaning of the
evaluation data, and the placement options. The committee members must
determine if they have enough information to make a knowledgeable decision
as to whether or not the student has a disability. The Section 504
regulation, at 34 C.F.R. 104.35(c), requires that school districts draw from
a variety of sources in the evaluation process so that the possibility of
error is minimized. The information obtained from all such sources must be
documented and all significant factors related to the student's learning
process must be considered. These sources and factors may include aptitude
and achievement tests, teacher recommendations, physical condition, social
and cultural background, and adaptive behavior.In evaluating a student
suspected of having a disability, it is unacceptable to rely on presumptions
and stereotypes regarding persons with disabilities or classes of such
persons. Compliance with the IDEA regarding the group of persons present
when an evaluation or placement decision is made is satisfactory under
Section 504.
20. What process should a school district use to
identify students eligible for services under Section 504? Is it the same
process as that employed in identifying students eligible for services under
the IDEA?
School districts may use the same process initially to
evaluate the needs of students under Section 504 as they use to evaluate the
needs of students under the IDEA. If school districts choose to adopt a
separate process for evaluating the needs of students under Section 504,
they must follow the requirements for evaluation specified in the Section
504 regulation at 34 C.F.R. 104.35.
21. Must school districts consider "mitigating
measures" used by a student in determining whether the student has a
disability under Section 504?
Yes. A school district must consider a student's use of
mitigating measures in determining whether the student is substantially
limited in a major life activity. "Mitigating measures" are devices or
practices that a person uses to correct for or reduce the effects of that
person's mental or physical impairment. Examples include corrective
eyeglasses and medications. A person who experiences no substantial
limitation in any major life activity when using a mitigating measure does
not meet the definition of a person with a disability and would not be
entitled to FAPE under Section 504.
22. Does OCR endorse a single formula or scale that
measures substantial limitation?
No. The determination of substantial limitation must be
made on a case-by-case basis with respect to each individual student. The
Section 504 regulation, at 34 C.F.R. 104.35 (c), requires that a group of
knowledgeable persons draw upon information from a variety of sources in
making this determination.
23. Are there any impairments which automatically
qualify a student for protection under Section 504?
No. An impairment in and of itself does not qualify a
student for protection under Section 504. The impairment must substantially
limit one or more major life activities in order to qualify a student for
protection under Section 504.
24. Can a medical diagnosis suffice as an evaluation
for the purpose of providing FAPE?
No. A physician's medical diagnosis may be considered
among other sources in evaluating a student with a disability or believed to
have a disability which substantially limits a major life activity. Other
sources to be considered, along with the medical diagnosis, include aptitude
and achievement tests, teacher recommendations, physical condition, social
and cultural background, and adaptive behavior.
25. Does a medical diagnosis of an illness
automatically qualify a student for services under Section 504?
No. A medical diagnosis of an illness does not
automatically qualify a student for services under Section 504. The illness
must cause a substantial limitation on the student's ability to learn or
other major life activities. For example, a student who has a physical or
mental impairment would not be considered a student in need of services
under Section 504 if the impairment does not in any way limit the student's
ability to learn or other major life activity, or only results in some minor
limitation in that regard.
26. How should a recipient school district handle an
outside independent evaluation? Do all data brought to a multi-disciplinary
committee need to be considered and given equal weight?
The results of an outside independent evaluation may be
one of many sources to consider. Multi-disciplinary committees must draw
from a variety of sources in the evaluation process so that the possibility
of error is minimized. All significant factors related to the subject
student's learning process must be considered. These sources and factors
include aptitude and achievement tests, teacher recommendations, physical
condition, social and cultural background, and adaptive behavior, among
others. Information from all sources must be documented and considered by
knowledgeable committee members. The weight of the information is determined
by the committee given the student's individual circumstances.
27. What should a recipient school district do if a
parent refuses to consent to a case study evaluation under the Individuals
with Disabilities Education Act (IDEA), but demands a Section 504 plan for a
student without further evaluation?
Section 504 requires informed parental permission for
initial evaluations. If a parent refuses consent for an initial evaluation
and a recipient school district suspects a student has a disability, the
IDEA and Section 504 provide that school districts may use due process
hearing procedures to override the parents' denial of consent.
28. Who in the evaluation process makes the ultimate
decision regarding a student's eligibility for services under Section 504?
The Section 504 regulation at 34 C.F.R.104.35 (c) (3)
requires that school districtsensure that the determination that a student
is eligible for special education and/or related aids and services be made
by a group of persons, including persons knowledgeable about the meaning of
the evaluation data and knowledgeable about the placement options. If a
parent disagrees with the determination, he or she may request a due process
hearing.
29. Once a student is identified as eligible for
services under Section 504, is there an annual or triennial review
requirement? If so, what is the appropriate process to be used? Or is it
appropriate to keep the same Section 504 plan in place indefinitely after a
student has been identified?
Periodic re-evaluation is required. This may be
conducted in accordance with the IDEA regulation, which requires
re-evaluation at three-year intervals or more frequently if conditions
warrant, or if the child's parent or teacher requests a re-evaluation.
30. Is a Section 504 re-evaluation similar to an IDEA
re-evaluation? How often should it be done?
Yes. Section 504 specifies that re-evaluations in
accordance with the IDEA comply with Section 504. The Section 504 regulation
requires that re-evaluations be conducted periodically. Section 504 also
requires a school district to conduct a re-evaluation prior to a significant
change of placement. OCR considers an exclusion from the educational program
of more than 10 school days a significant change of placement. OCR would
also consider transferring a student from one type of program to another or
terminating or significantly reducing a related service a significant change
in placement.
31. What is reasonable justification for referring a
student for evaluation for services under Section 504?
School districts may always use regular education
intervention strategies to assist students with difficulties in school.
Section 504 requires recipient school districts to refer a student for an
evaluation for possible special education or modification to regular
education if the student, because of disability, needs or is believed to
need such services.
32. A student is receiving services that the school
district maintains are necessary under Section 504 in order to provide the
student with an appropriate education. The student's parent no longer wants
the student to receive those services. If the parent wishes to withdraw the
student from a Section 504 plan, what can the school district do to ensure
continuation of services?
The school district may initiate a Section 504 due
process hearing to resolve the dispute if the district believes the student
needs the services in order to receive an appropriate education.
33. A student has a disability referenced in the IDEA,
but does not require special education services. Is such a student eligible
for services under Section 504?
The student may be eligible for services under Section
504. The school district must determine whether the student has an
impairment which substantially limits his or her ability to learn or other
major life activities and, if so, make an individualized determination of
the child's educational needs for regular or special education or related
aids or services. For example, such a student may receive adjustments in the
regular classroom.
34. How should a recipient school district regard a
temporary impairment?
A temporary impairment does not constitute a disability
for purposes of Section 504 unless its severity is such that it results in a
substantial limitation of one or more major life activities for an extended
period of time. The issue of whether a temporary impairment is substantial
enough to be a disability must be resolved on a case-by-case basis, taking
into consideration both the duration (or expected duration) of the
impairment and the extent to which it actually limits a major life activity
of the affected individual.
PLACEMENT
Once a student is identified as being eligible for
regular or special education and related aids or services, a decision must
be made regarding the type of services the student needs.
35. If a student qualifies for services under both the
IDEA and Section 504, must a school district develop both an individualized
education program (IEP) under the IDEA and a Section 504 plan under Section
504?
No. If a student is eligible under IDEA, he or she must
have an IEP. Under the Section 504 regulations, one way to meet Section 504
requirements is to comply with IDEA.
36. Must a school district develop a Section 504 plan
for a student who either "has a record of disability" or is "regarded as
disabled"?
No. In elementary and secondary schools, unless a
student actually has a disabling condition that substantially limits a major
life activity, the mere fact that a student has a "record of" or is
"regarded as" disabled is insufficient, in itself, to trigger those Section
504 protections that require the provision of a free and appropriate public
education (FAPE). The phrases "has a record of disability" and "is regarded
as disabled" are meant to reach the situation in which a student either does
not currently have or never had a disability, but is treated by others as
such.
37. What is the receiving school district's
responsibility under Section 504 toward a student with a Section 504 plan
who transfers from another district?
If a student with a disability transfers to a district
from another school district with a Section 504 plan, the receiving district
should review the plan and supporting documentation. If a group of persons
at the receiving school district, including persons knowledgeable about the
meaning of the evaluation data and knowledgeable about the placement options
determines the plan is appropriate, the district is required to implement
the plan. If the district determines that the plan is inappropriate, the
district is to evaluate the student consistent with the Section 504
procedures at 34 C.F.R. 104.35 and determine which educational program is
appropriate for the student.
38. What are the responsibilities of regular education
teachers with respect to implementation of Section 504 plans? What are the
consequences if the district fails to implement the plans?
Regular education teachers must implement the
provisions of Section 504 plans when those plans govern the teachers'
treatment of students for whom they are responsible. If the teachers fail to
implement the plans, such failure can cause the school district to be in
noncompliance with Section 504.
39. What is the difference between a regular education
intervention plan and a Section 504 plan?
A regular education intervention plan is appropriate
for a student who does not have a disability or is not suspected of having a
disability but may be facing challenges in school. School districts vary in
how they address performance problems of regular education students. Some
districts employ teams at individual schools, commonly referred to as
"building teams." These teams are designed to provide regular education
classroom teachers with instructional support and strategies for helping
students in need of assistance. These teams are typically composed of
regular and special education teachers who provide ideas to classroom
teachers on methods for helping students experiencing academic or behavioral
problems. The team usually records its ideas in a written regular education
intervention plan. The team meets with an affected student's classroom
teacher(s) and recommends strategies to address the student's problems
within the regular education environment. The team then follows the
responsible teacher(s) to determine whether the student's performance or
behavior has improved. In addition to building teams, districts may utilize
other regular education intervention methods, including before-school and
after-school programs, tutoring programs, and mentoring programs.
PROCEDURAL SAFEGUARDS
Public elementary and secondary schools must employ
procedural safeguards regarding the identification, evaluation, or
educational placement of persons who, because of disability, need or are
believed to need special instruction or related services.
40. Must a recipient school district obtain parental
consent prior to initiating a Section 504 evaluation?
Yes. OCR has interpreted Section 504 to require
districts to obtainparental permission for initial evaluations. If a
district suspects a student needs or is believed to need special instruction
or related services and parental consent is withheld, districts may use due
process hearing procedures to override the parents' denial of consent for an
initial evaluation.
41. If so, in what form is consent required?
Section 504 is silent on the form of parental consent
required. OCR has accepted written consent as compliance. IDEA as well as
many state laws also require written consent prior to initiating an
evaluation.
42. What can a recipient school district do if a parent
withholds consent for a student to secure services under Section 504 after a
student is determined eligible for services?
Section 504 neither prohibits nor requires a school
district to initiate a due process hearing to override a parental refusal to
consent with respect to the initial provision of special education and
related services. Nonetheless, school districts should consider that IDEA no
longer permits school districts to initiate a due process hearing to
override a parental refusal to consent to the initial provision of services.
43. What procedural safeguards are required under
Section 504?
Recipient school districts are required to establish
and implement procedural safeguards that include notice, an opportunity for
parents to review relevant records, an impartial hearing with opportunity
for participation by the student's parents or guardian, representation by
counsel and a review procedure.
44. What is a recipient school district's
responsibility under Section 504 to provide information to parents and
students about its evaluation and placement process?
Section 504 requires districts to provide notice to
parents explaining any evaluation and placement decisions affecting their
children and explaining the parents' right to review educational records and
appeal any decision regarding evaluation and placement through an impartial
hearing.
45. Is there a mediation requirement under Section 504?
No.
TERMINOLOGY
The following terms may be confusing and/or are
frequently used incorrectly in the elementary and secondary school context.
Accommodation: a term correctly used in the context of
public accommodations and facilities; an individual with a disability may
not be excluded, denied services, segregated or otherwise treated
differently than other individuals by a public accommodation or commercial
facility; (term is not to be confused with "reasonable accommodation,"
discussed below)
Equal access: equal opportunity of a qualified person
with a disability to participate in or benefit from educational aids,
benefits, or services
Free and appropriate public education (FAPE): a term
used in the elementary and secondary school context; refers to the provision
of regular or special education and related aids and services that are
designed to meet individual educational needs of students with disabilities
as adequately as the needs of students without disabilities are met and is
based upon adherence to procedures that satisfy the Section 504 requirements
pertaining to educational setting, evaluation and placement, and procedural
safeguards
Placement: a term used in the elementary and secondary
school context; refers to regular and/or special educational program in
which a student receives educational and/or related services
Reasonable accommodation: a term used in the employment
context to refer to modifications or adjustments employers make to a job
application process, the work environment, the manner or circumstances under
which the position held or desired is customarily performed, or that enable
a covered entity's employee with a disability to enjoy equal benefits and
privileges of employment; this term is sometimes used incorrectly to refer
to related aids and services in the elementary and secondary school context
or to refer to academic adjustments and auxiliary aids and services in the
postsecondary school context>
Related services: a term used in the elementary and
secondary school context to refer to developmental, corrective, and other
supportive services, including psychological, counseling and medical
diagnostic services and transportation
No. Children with mental disabilities or impairments
may be eligible for services under both the Individuals with Disabilities
Education Act (IDEA) or Section 504.
What kind of disability must my child have in order to
qualify for Section 504?
The definition of a child with a disability under
Section 504 is broader than in Special Education. 504 says that a child
with a disability is a student "whose physical or mental disability
substantially limits one or more major life activities, such as caring for
oneself, seeing, breathing, learning, and walking."
The following are some physical disabilities that are
commonly associated with 504:
• Asthma
• Cancer
• Poor eye sight or hearing
• Medically fragile children
• HIV positive
• Physically handicapped children
• Allergies/chemical sensitivities
• More...
Some other disabilities that are also covered by
section 504 are:
• ADHD
• Dyslexia
• Auditory processing delays
• Depression
• More...
In theory, under section 504 your child is entitled to
receive services and accommodations that allow him/her to fully participate
in all school activities. An accommodation is any kind of change in the
school or classroom structure, schedule or instruction that allows your
child to participate in all school activities. A service can range from
dispensing medication to providing a full time para-professional to work
with your child.
Section 504 accommodations may be very simple. For a
boy with asthma who gets attacks when his neck is exposed in cold weather,
for example, a teacher might make sure that he wears a scarf during recess
in the winter. A child with a writing impairment might be permitted to use
a pencil or computer for writing assignments, or a child with a chalk
allergy can be taught in a chalk-free environment. On the more expensive
side, a school might be required to provide nurse accompaniment on a school
bus for a child with a severe seizure disorder, a paraprofessional to help a
child with ADD stay focused, or a ramp in an auditorium used for graduation
ceremonies for a child in a wheelchair.
Depending upon how
knowledgeable and cooperative your school district is, there are some
services and/or accommodations that will be easy to get and some that you
may have to fight for (see page 10). 504 is most commonly used to allow
schools to dispense medication to students during the school day. If you
want accommodations in the classroom and school, you may find that school
districts are less familiar with the law, and you may have to educate your
school about Section 504. To get accommodations and/or services that will
cost the district money, you should be prepared to use your due process
rights to fight for those accommodations.
Below are listed some
accommodations and/or services that are available under 504. These are all
examples to give you an idea of what's possible. It is by no means a
complete list.
For students with medical needs:
·
Getting medicine during the
school day
·
Receiving periodic blood tests
for blood sugar levels
·
Use of a nebulizer
·
Getting rid of particular
allergens (chalk, bleach, pesticides)
For students with other physical
disabilities:
·
Use of the school elevator
·
Modified participation in gym
(adaptive physical education)
·
Learning in a chemical-free
environment (for chemical sensitive students)
For students with learning disabilities:
·
Allowing use of a tape recorder
or calculator
·
Testing accommodations, such
as;
*
Having questions read allowed
if the student has dyslexia
*
More time to complete tests
*
Taking tests in quiet locations
For students with emotional disabilities or
other behavioral disabilities:
·
Having a modified classroom
schedule
·
Receiving a behavior
modification plan
·
Getting the assistance of a
para-professional
There are two good reasons:
1. Many children with disabilities do not
qualify for special education because they do not fall into one of the 13
defining handicapping conditions under special education law or do not need
any special services to be able to learn. Nonetheless, they may be entitled
to services or accommodations under 504. For example, a student who cannot
walk and needs to use a wheelchair does not need any specialized learning
instruction or services under special education, but is entitled to have
ramps placed so that she can access her classrooms. Another example is a
child with a specific reading disability (for example, dyslexia) who,
because he may be very bright, is able to read on grade level, but still
reads very slowly. Even if his district did not classify him as "learning
disabled" under special education, he would be entitled to testing
accommodations, such as extra time to take tests, under Section 504.
2. Some students may qualify for both Special
Education services and Section 504, but their parents prefer going through
Section 504 because they have more control over the process, particularly if
their child has a behavioral problem. Once a parent consents for their
child to receive special education services, they become part of a system
that can be difficult to leave, and frequently leads to more and more
segregated special education settings. By seeking services and
accommodations through 504, a parent can secure support for their child in a
general education setting, with less concern about that decision leading to
a long road through special education.‡
*Students who receive Special Ed services are also
protected by Section 504. In other words, they cannot be discriminated
against due to their disability and they are entitled to accommodations and
services. Because Special Ed students typically get those services and
accommodations through the Special Ed system, theydo not need to separately
apply for them through Section 504.
‡In both special education and 504 parents have due
process rights; the difference is that parents often feel that they are less
in control in the special education process.
Although the law says that schools have an obligation
to identify children who may be in need of 504 assistance and to evaluate
those students for their needs, in New York City parents almost always have
to take the first step. (As mentioned earlier, this is not always a bad
thing, because it leaves you, the parent, in control.) To get 504 services
or accommodations:
1. Contact the 504 coordinator either in your
child’s school or at the district office and get a current copy of the
Section 504 Form “Authorization General Education Students Provision of
Accommodations.” (If your child needs medication dispensed in school or
needs their blood checked or any other medically prescribed treatment, you
will need to pick up separate forms from the 504 coordinator for those
services.)
2. The next step depends upon what kind of
disability your child has.
a. If your child has a medical or physical
condition that is monitored by a doctor, have that doctor fill out the form,
describing your child’s disability and listing the accommodations that s/he
needs. Although it is not necessary, it is a good idea for your child’s
doctor to attach a statement describing in more detail exactly why your
child needs specific accommodations and/or services.
b. If your child has a learning disability or
other disability that does not require medical care (for example, auditory
processing delays or Attention Deficit Disorder), you will need a
professional who can evaluate your child and explain why your child needs
specific accommodations and/or services. (To find an evaluator you can
either consult your child’s doctor, or call Advocates for Children at 212
947-9779 and ask for a listing of evaluation sites.) It is important that
you talk to the evaluator before the evaluation and explain that you are
trying to get 504 accommodations and that the report is an important factor
in whether or not your request will be approved. The evaluator will write a
report with his/her diagnoses and recommendations. Because many districts
require it, you should also ask the evaluator to fill out the 504 form.
3. Once you have all the above documentation,
write to your child’s principal requesting 504 services and submit all
evaluations, the form, and any other relevant documentation. If you do not
feel comfortable about requesting the services from the principal, you can
send your request either to the Section 504 coordinator in your district or
to: Chancellor’s Section 504 Designee, 110 Livingston Street, Room 510,
Brooklyn, NY 11201.
The principal, district or Chancellor’s designee must
respond within 30 school days and:
• Inform you in writing whether or not your
child is eligible for 504 services,
• If services are approved, the school must
prepare a written plan;
• If services are denied, they must notify
you in writing on how to appeal the decision.
If services are denied and you want to challenge the
district’s decision, you have two options:
1. Initial Conciliation. You have the right to
ask that the Chancellor appoint a third party to review the decision to
reject services for your child. To request conciliation, send a letter to:
Chancellor, New York City Board of Education, 110 Livingston Street,
Brooklyn, NY 11201. The Chancellor has 5 days from the date of receiving
your letter to assign a designee. The designee must give you a decision
within 10 days of receiving your request. (Note: Although the conciliation
process is offered in the Board of Education’s regulations, advocates have
found that the process is largely ineffectual in practice. If you are
concerned about time restraints, we suggest that you skip conciliation and
move to the next step, impartial hearing.)
2. Impartial Hearing. Within 10 days of
receiving an unfavorable decision from the chancellor or at any time that
your child’s rights are being violated under Section 504, you can ask for a
Section 504 Impartial Hearing by writing to: Impartial Hearing Office, New
York City Board of Education, 131 Livingston Street – Room 201, Brooklyn, NY
11201. The hearing is a formal process in which you will have a chance to
contest the district’s decision in front of a neutral hearing officer, whose
decision must be followed by the district. Your rights in the hearing
process include the right to be represented by an attorney and to present
evidence and testimony.
Yes, federal law requires any school receiving public
dollars to provide students with disabilities educational choices comparable
to those offered to non-disabled students. Charter schools can not
discriminate against students with disabilities.
Charter schools are required to follow federal laws pertaining to special
education (e.g., Section 504, Individuals with Disabilities in Education Act
(IDEA), and the Americans with Disabilities Act (ADA). Charter schools must
provide a free and appropriate education for children with special needs
identified in an individualized education plan, but may contract with a
private vendor, school district, Special Education Local Plan Area (SELPA),
or other agency to provide the services.
Charter Schools and Special Education
LEA Status
Is the charter school or the public school district in which a charter
school student resides the local educational agency (LEA) for purposes of
the Individuals with Disabilities Education Act (IDEA)?
The school district of residence acts as the local educational agency
(LEA) and is responsible for applying for federal IDEA funds for special
education services provided to resident students enrolled in a charter
school. Education Law § 2856(1) requires that the school district of
residence pay to the charter school any federal aid attributable to a
student with a disability in proportion to the level of services rendered by
the charter school. Education Law § 4410-b(4) requires that funds received
pursuant to section 611 and 619 of the IDEA be sub-allocated to charter
schools pursuant to the Charter Schools Act and the Regulations of the
Commissioner. Section 119.1(b)(9) and (d) require that the school district
of residence pay to the charter school any federal funds received pursuant
to sections 611 and 619 of the IDEA that are attributable to a student with
a disability who receives services, directly or indirectly, from the charter
school. Education Law § 2853(4) requires that charter school students
receive special education services in accordance with the individualized
education program (IEP) recommended by the committee on special education
(CSE) or subcommittee on special education of the school district of
residence. Therefore, for purposes of the IDEA, the school district of
residence is the LEA, and a charter school is deemed a school of the school
district.
CSE Responsibility
Is the public school district in which the student resides responsible
for the evaluation, identification, and individualized education program
(IEP) development for a student with a disability enrolled in a charter
school?
Yes. Education Law § 2853(4)(a) places committee on special education
(CSE) responsibility for charter school students on the school district of
residence. The school district of residence is the local educational agency
(LEA) under the Individuals with Disabilities Education Act (IDEA) and is
responsible for the evaluation, identification and placement of, and IEP
development for, charter school students. Education Law §§ 2853(4) and
2851(2)(s) make the charter school responsible for implementation of the IEP
in compliance with all federal laws and regulations relating to students
with disabilities.
Can the charter school establish a CSE or Subcommittee on Special
Education?
No. CSE responsibility is placed on the school district of residence. A
school district CSE or a subcommittee on special education established in
accordance with Education Law § 4402(1)(b) could meet at the charter school.
Must the CSE ensure the participation of a representative of the charter
school in the development and review of the student’s IEP?
Charter school participation in the development of IEPs for charter
school students is of critical importance to both the school district and
the charter school. In meetings to develop or review the IEP of a student
with a disability enrolled in, but not yet attending a charter school, we
recommend that the school district and the charter school ensure that a
representative of the charter school, preferably the regular and/or special
education teacher who will be providing services to the student, attends the
meeting. In all CSE meetings involving charter school students, the parents
and the school district would have the right to invite charter school
personnel as individuals who have knowledge or special expertise concerning
the child. If the student is already attending the charter school, one of
the child's regular education teachers from the charter school must serve as
the regular education teacher member of the CSE. If the charter school is
providing all special education and/or related services either directly or
by contract, one of the child's special education providers must serve as
the special education teacher member of the CSE. If both the school district
and the charter school, directly or by contract, provide special education
and/or related services to the child, the school district must designate the
most appropriate provider to serve as the special education teacher member
of the CSE. Charter schools are expected to cooperate fully with school
districts by assuring that charter school teachers and other charter school
personnel participate in CSE meetings relating to charter school students.
When developing the IEP of a student with a disability enrolled in a
charter school is the CSE limited to recommending special education programs
and services currently offered by the charter school?
No. The CSE must assure that a free appropriate public education is made
available to students enrolled in a charter school and, therefore, in
developing an IEP must recommend special education programs and services to
meet the individual needs of the student. In formulating the recommendation,
the CSE should consider the educational programs and services, and
extracurricular and other nonacademic activities, available in the charter
school setting and should attempt to tailor the IEP to meet the individual
needs of the student in the context of the charter school program. The
charter of each charter school must describe the methods and strategies for
serving students with disabilities, which must be in compliance with all
Federal laws and regulations relating to special education (Education Law §
2851[2][s]). Charter schools are exempt from State requirements relating to
class size and instructional groupings, and innovative approaches by the
charter school to the delivery of special education services that are
consistent with the IDEA, the Rehabilitation Act and Federal regulations
should be accommodated. However, special education programs and services
recommended on the IEP must provide for the student to advance appropriately
toward attaining the annual goals, to be involved and progress in the
general curriculum, and to participate in extracurricular and other
nonacademic activities in the least restrictive environment. If the nature
and severity of the disability of a student enrolled in a charter school is
such that the education of the student in the general education classes of
the charter school cannot be achieved satisfactorily, the CSE must recommend
a special class or other appropriate placement whether or not such special
class or placement is available at the charter school. The charter school
must fully implement the IEP of a student attending the charter school. It
is the obligation of the school district of residence, as the LEA, to
provide the charter school the student’s records and other information
needed to enable the charter school to properly implement the student’s IEP
on the same basis as any other public school within the school district (see
question 20 on confidentiality of student records) and, to the extent the
charter school provides the special education programs and services to the
student, to pay to the charter school the State and Federal aid attributable
to the student.
Does the CSE place a student with a disability in a charter school?
No. Students with disabilities are admitted to a charter school upon
application by the parent on the same basis as any other student.
What procedures must be followed when the IEP of a student enrolled in a
charter school requires full-time placement outside of the charter school
program (e.g., in an approved private residential school, State-operated or
State-supported school)?
This situation results in an apparent conflict between the provisions of
the Charter School Law and the IEP developed pursuant to Federal laws and
regulations. As is the case with a student attending any other public school
of the school district, if the CSE recommends a full-time placement outside
of the charter school for a student enrolled in a charter school, the
charter school must discharge the student to the school district of
residence and may not continue to enroll the student once the new IEP is
implemented unless the student's parent commences due process proceedings to
challenge the CSE recommendation and the charter school program becomes the
student's current educational placement during the pendency of due process
proceedings. However, once any due process is completed, the final
determination is binding on the parents as well as the charter school and
the school district. In this situation, the charter school’s obligations to
the student, financial and otherwise, terminate upon discharge to the school
district of residence.
Due Process
Is the charter school or the school district of residence of a charter
school student responsible for due process procedures under the IDEA?
As the local educational agency (LEA), the school district of residence
is generally responsible for due process procedures relating to the
evaluation, identification, educational placement and the provision of a
free appropriate public education to charter school students. Where the
parents of a charter school student object to the IEP recommended by the CSE
of the school district of residence or otherwise raise issues concerning the
provision of a free appropriate public education to their child, the school
district of residence is responsible for providing mediation and/or
conducting an impartial hearing to resolve the dispute, to the same extent
as for a student enrolled in the school district. Charter schools must
cooperate with school district personnel and school district attorneys in
the conduct of due process proceedings, by making charter school personnel
available to testify and providing documentary evidence upon request. In
addition, under Education Law § 2851(1)(h), charter schools are required to
have student discipline procedures that are consistent with due process and
with Federal laws and regulations governing the placement of students with
disabilities. Therefore, charter schools are required to comply with the
procedural requirements contained the IDEA discipline procedures (34 C.F.R.
§§ 300.519-300.529) that apply to actions of school personnel upon
suspension or removal of a student (such as providing notice of a decision
in a disciplinary matter that would result in a change of placement, with a
procedural safeguards notice, as required by 34 C.F.R. § 300.523), while the
school district must comply with the IDEA discipline procedures that relate
to CSE functions, such as conducting manifestation determinations,
conducting functional behavioral assessments and developing and reviewing
behavioral intervention plans, and providing all required notices in
connection with the CSE meeting, including a procedural safeguards notice.
What due process procedures must be followed for students with
disabilities pertaining to discipline?
While the procedures for student suspensions in section 3214 of the
Education Law do not apply to students attending a charter school unless its
charter makes them applicable, charter schools are required to have student
discipline procedures that are consistent with due process and the
discipline procedures contained in the IDEA and Federal regulations relating
to student discipline (34 C.F.R. §§ 300.519-300.529). The CSE
responsibilities required by Federal law and regulations, including the
responsibility to make manifestation determinations, must be carried out by
the CSE of the school district of the student’s residence. A due process
proceeding brought to challenge a determination of the CSE, including an
expedited hearing to contest a manifestation determination, is the
responsibility of the school district of residence. Upon request of the
charter school, the school district of residence must initiate an expedited
due process hearing to obtain an order changing the placement of a student
with a disability to an interim alternative educational setting, where
continuing the current placement of the student is substantially likely to
result in injury to the child or others.
To what extent should charter school discipline procedures for students
with disabilities be coordinated with the CSE of the student's school
district of residence?
Because the CSE of the school district of residence carries out all CSE
functions relating to disciplinary actions taken against charter school
students, charter schools and school district CSEs must develop procedures
to assure that both entities are able to meet their respective obligations
to charter school students under the IDEA discipline procedures. This will
require coordination through measures such as:
requiring prompt notice to the school district CSE of charter school
suspensions or removals that trigger requirements for meetings of the CSE,
such as the need to conduct a manifestation determination or to meet to
review a functional behavioral assessment plan;
procedures to assure the participation of charter school personnel in
meetings of the CSE relating to charter school students, particularly in
meetings relating to the development and implementation of behavioral
intervention plans for charter school students;
procedures for requiring prompt notice to the charter school of any
actions by the school district CSE that affects a charter school student;
and
procedures for obtaining CSE determinations for charter school students
under 34 C.F.R §§ 300.121(d)(3)(ii) (determination of services for
suspensions or removals that would constitute a change in placement); 300.
522(a) (determination of interim alternative educational setting) and 300.
523 (manifestation determination).
IEP Implementation
Must the charter school implement the recommendations as written in the
Individualized Education Program (IEP)?
Yes.
May a charter school contract with a BOCES for delivery of special
education services?
No. There is no statutory authority in Education Law § 1950 for a BOCES
to contract to provide special education or related services to a charter
school, even though a charter school has authority to contract with
providers of special education under Education Law § 2853(4)(a). Therefore,
if a charter school wants to arrange to provide special education services
through a BOCES, the charter school should request that the school district
of residence contract with the BOCES for such service.
What procedures should be followed if the parent of a student enrolled
in a charter school wants the student to receive some but not all of the
services recommended on the student’s IEP?
If the parent disagrees with the IEP in whole or in part, the parent has
a right to challenge the CSE determination through mediation and/or an
impartial hearing.
Is the charter school required to arrange for the provision of any
special education programs and services recommended on the student’s IEP?
Yes. The charter school is responsible to implement the IEP as written.
The charter school may provide these services directly or arrange to have
such services provided by the school district of residence or by contract
with another provider. However, if the CSE recommends placement in an
approved private residential or non-residential school or another full-time
placement outside of the charter school, the student will not be attending
or enrolled in the charter school program and may not be counted in
computing enrollment for purposes of determining the funds to be paid to the
charter school. (See also, questions 7 and 19).
How soon after the enrollment of a student with a disability or after a
new or revised IEP is developed must a charter school implement the IEP?
Charter schools are required to follow federal laws and regulations
that require the IEP to be implemented as soon as possible following the
meeting in which the IEP is developed. The school district of residence must
provide the charter school with the student records and other information
that the charter school needs to implement the IEP (see question 20 on
confidentiality of student records). If the charter school requests that the
school district provide some or all of the recommended special education
services, the school district must conform to the timelines for IEP
implementation in the Part 200 regulations.
May a charter school choose to arrange for provision of special
education and/or related services by the public school district for some but
not all students, or for some but not all services on a student's IEP?
Yes. Education Law § 2853(4) does not require that the charter school
choose between having all the services contained on an IEP provided by the
school district of residence or having all such services provided by the
charter school, directly or indirectly. Under Education Law § 2856 (1) and
Part 119.1 of the Regulations of the Commissioner, the school district of
residence is required to pay the federal and State aid attributable to a
student with a disability to the charter school only in proportion to the
level of services that the charter school provides directly or by contract
with another provider.
If the charter school requests that the school district of residence
provide the special education and/or related services recommended on the
IEP, must the public school district provide the services?
Yes, both the school district of residence, as LEA, and the charter
school are legally obligated to assure that the charter school student
receives a free appropriate public education in accordance with the
student's IEP. Therefore, if the charter school requests that the school
district provide the special education and/or related services recommended
in the IEP, the school district must cooperate in making arrangements to
deliver such services. If on-site services are required to meet the
individual needs of the student (such as consultant teacher services, deaf
interpreters, etc.), the services must be provided on the site of the
charter school.
If the student's IEP recommends that a student be placed in a
self-contained special class or resource room, and the charter school has no
self-contained class or resource room, is the charter school required to
establish such a class or resource room and/or arrange to have the school
district provide such a class?
Yes, if the student's IEP recommends a self-contained special education
class, resource room or other services that can be delivered at the charter
school and would enable the student to participate in the charter school's
programs and services for some portion of the school day, the charter school
is required to implement the IEP and arrange to have such services provided
to the student. The charter school, under Education Law § 2853(4)(a), has
the option of providing the special education programs directly or by
contract, or arranging to have such services provided by the school
district. If the charter school requests that the school district provide a
self-contained class or resource room, the charter school and the school
district can meet such obligation by placing the student in a self-contained
class or resource room operated by the school district at a location other
than the charter school, if that is appropriate to the needs of the student.
However, if a self-contained class or resource room on the site of the
charter school is determined by the school district CSE to be the
appropriate placement for the student and the charter school requests that
the school district provide such services, the self-contained class or
resource room must be provided by the school district. In this situation,
the charter school and the school district CSE should work with the parents
to develop an IEP that meets the student's needs and to design a program
that is integrated into the charter school's educational programs and makes
use of charter school and school district resources.
If the school district of residence is asked by the charter school to
provide any or all of the special education services indicated on a charter
school student’s IEP, may the school district refuse to serve the student
based on fiscal concerns?
No. The school district, as LEA, may not withhold services from the
student based on a dispute with the charter school over the cost of services
or fiscal responsibility for such services. The school district of residence
is required to provide the services requested by the charter school and is
required under 34 C.F.R. § 300.241 to serve charter school students in the
same manner as it serves students with disabilities in other public schools
of the school district. The school district of residence retains the State
or federal aid attributable to services provided by it to a student with a
disability.
In the charter school enrollment process, may charter school personnel
enrolling a student with a disability obtain educational records, including
the CSE evaluation and IEP, of a student receiving special education
programs and services through the district?
Yes. Under 34 C.F.R. § 99.31(2), officials of another school in which a
student seeks or intends to enroll may have access to student records
without parental consent provided that the school district complies with 34
C.F.R. § 99.34 on parental notice. However, the charter school must maintain
full confidentiality of records in accordance with IDEA and FERPA and the
federal regulations implementing such statutes (34 C.F.R. §§
300.560-300.577; 34 C.F.R. Part 99).
Who provides transportation for students with disabilities enrolled in a
charter school?
For the purpose of regular transportation between home and school under
Education Law § 3635, charter schools are considered nonpublic schools,
which means that non-disabled students and students with disabilities
attending charter schools who reside within a 15-mile radius of the charter
school (or greater radius if the voters of the school district of residence
have approved nonpublic transportation for more than 15 miles) will receive
transportation from their school district of residence on the same basis as
nonpublic school students (e.g., subject to the applicable minimum mileage
limits for transportation in the school district of residence). In addition,
the school district of residence is responsible to provide special
transportation to a student with a disability attending a charter school,
whenever special transportation is included on the student’s IEP and the
charter school requests that the school district provide such special
transportation. Special transportation is included in the definition of
"special education" under Education Law § 4401(1). If the charter school
arranges to provide special education services directly, through an
arrangement with the school district, or by contract with another provider
at a site other than the charter school, transportation between the charter
school and such other site is the responsibility of the charter school,
which may arrange with the school district to have such transportation
provided as "supplemental transportation" at cost.
Oversight and Monitoring
Who is responsible for ensuring a charter school’s compliance with
Federal laws and regulations relating to special education?
Under Article 56 of the Education Law, a charter school is an
independent, autonomous public school and is not a local educational agency
(LEA). Education Law § 2853(2) assigns responsibility to the Board of
Regents and the charter entity to oversee the charter school and to ensure
the charter school’s compliance with all applicable laws and regulations,
which would include the IDEA and the Federal regulations implementing the
IDEA. Education Law § 2853(4)(a) gives the school district of residence CSE
responsibility for charter school students and therefore makes the school
district of residence initially responsible for its CSE’s compliance with
the IDEA and Article 89 of the Education Law. However, the school district
of residence is not responsible for oversight and monitoring of the charter
school's compliance with the IDEA, unless the school district of residence
is a charter entity, such as in the case of a charter school conversion. The
State Education Department, as the state educational agency (SEA), has
ultimate responsibility for assuring compliance with the IDEA by both the
school district of residence and the charter school. A school district or a
parent may file a complaint with the State Education Department's Office for
Vocational and Educational Services for Individuals with Disabilities, if
they believe that the charter school is not in compliance with the IDEA.
Graduation Requirements
Is the charter school responsible for administering State examinations?
Yes. In accordance with Education Law § 2854(d), students attending
charter schools are required to take State examinations to the same extent
such examinations are required of other public school students.
Can the charter school issue a diploma?
Yes. A charter school offering instruction in high school may grant
Regents diplomas and local diplomas to the same extent as other public
schools.
Who administers testing accommodations for students with disabilities
attending a charter school?
Whoever is administering the State, local, or classroom examination
implements the testing accommodations.
Do students who attend the charter school receive the safety net
provisions under Part 100 of the Regulations?
Under Education Law § 2854(1)(d), charter schools students are required
to take Regents examinations to the same extent as such examinations are
required of other students in the public schools and may grant Regents and
local diplomas to the same extent as other public schools. Therefore,
charter schools must provide students with disabilities attending the
charter school with access to the safety net (i.e., taking Regents
Competency Tests in lieu of Regents examinations) to the same extent as
other public schools, unless the IEP indicates otherwise.
Must a charter school adhere to the requirements of Section 504 of the
Rehabilitation Act of 1973?
Yes, the Rehabilitation Act is a Federal civil rights law that prohibits
discrimination against individuals with disabilities, and charter schools
are not exempted from such law by Education Law § 2854(1)(b). Therefore,
charter schools must comply with the procedures required under the Federal
regulations implementing the Rehabilitation Act, 34 C.F.R. Part 104,
including the provisions of 34 C.F.R. §§ 104.31-104.37 that require the
designation of a Multidisciplinary Team, writing Accommodation Plans,
procedural safeguards, etc.
It depends. Any student attending a school that
receives public funds* is guaranteed a Free Appropriate Public Education
(FAPE). For students with disabilities this means they may be eligible for
services or accommodations under one of two laws - the Individuals with
Disabilities Education Act (IDEA) or Section 504. IDEA is what is commonly
known as "special education" whereas Section 504 is a Civil Rights law that
covers children in public school settings. Both of these laws provide
appropriate accommodations to eligible students with disabilities.
Unfortunately, if a private school does not receive any
public funding and is not wiling to provide accommodations or services
voluntarily, then there is little you can do legally, as these laws do not
apply to them. However, some private schools will be willing to implement
accommodations to help students with disabilities.
* Public funds sometimes slip into private schools
through subsidized school lunches or busing programs.
An Individualized Educational Program (IEP) describes
the special education and related services specifically designed to meet the
unique educational needs of a student with a disability. The program is
developed at one or more IEP meetings, and its provisions are detailed in
writing in the IEP.
The IEP is developed by a committee that includes at
least a school administrator, the student's teacher, the parents, and the
student when appropriate. It contains goals and objectives based upon the
student's present level of educational performance. These goals and
objectives are outlined by those involved in planning and providing
services. In addition, the IEP specifies the educational placement or
setting, and the related services necessary to reach these goals and
objectives. It also includes the date the services will begin, how long they
will last, and the way in which student progress will be evaluated.
The IEP can be more than an outline and management tool
of the student's special education program. It can be an opportunity for
parents and educators to work together as equal participants to identify the
student's needs, what will be provided to meet those needs, and what the
anticipated outcomes may be. It is a document that is revised as the needs
of the student change. The IEP is a commitment in writing of the resources
the school agrees to provide. Also, the periodic review of the IEP serves as
an evaluation of the student's progress toward meeting the educational goals
and objectives. Finally, the IEP serves as the focal point for clarifying
issues and cooperative decision making by parents, the student and school
personnel in the best interest of the student. For all of these reasons, the
IEP is the cornerstone of special education.
Thus an IEP is:
Comprehensive. The IEP covers all deficit areas,
including communication, behavior, socialization, self-help, academics,
perceptual-motor and gross-motor skills, vocational skills, and transition
services, related services, and needed accommodations in both general
(regular and vocational) and special education.
Specific. The IEP goals and objectives are stated in
measurable, observable behaviors.
Sequential. The IEP is based on a developmental or
functional sequence of skills.
Realistic and A.ppropriate. The IEP goals and
objectives should fit the student's current level of functioning and
probable growth rate.
Understandable. The IEP is written in language that is
comprehensible to both parents and professionals. It communicates.
Mutuallv Developed. The IEP represents a consensus
among parents, the student, and school personnel.
A diagram of the process may help give a visual image
of what steps are involved in creating an IEP.
The IEP must be developed for each student with a
disability within thirty (30) calendar days after eligibility determination.
The IEP must be developed before actual placement, and initiation of special
education and related services. No special education and related services
can be provided prior to the development of the IEP. Finally, all IEPs must
be reviewed at least annually by the IEP committee. A parent or a teacher
may request reviews of the IEP more frequently.
COMPOSITION OF THE IEP COMMITTEE
The IEP committee must be composed of at least the
following:
School Administratoror Designee. A representative of
the school division, other than the student's teacher, who is qualified to
provide or supervise the provision of special education;
Student'sTeacher. At the initial IEP meeting, this
refers to the student's classroom teacher, or if the student does not have a
teacher, a teacher qualified to teach a student of that age. At subsequent
IEP meetings, this may be the student's special education teacher;
Parent/Legal Guardian or Surrogate Parent. Parents must
be given the opportunity to participate in the development of their child's
IEP; however, they may choose not to attend the IEP meeting. If they so
choose, then the other IEP committee members should meet and develop the
IEP.
Student. The student should participate when
appropriate in developing the IEP. This is especially true at the secondary
level when developing goals and objectives and transition services. Remember
the IEP is to meet the unique educational needs of the student.
At an initial IEP meeting, the Committee must include a
member of the evaluation team or someone knowledgeable about the evaluation
procedures used with the student and the results of the evaluation.
Transition services must be addressed on the IEPs of
students who are 14 years old and older. They may also be addressed at a
younger age when appropriate. Whenever transition services and planning are
being considered at an IEP meeting, then the following people must also be
invited to participate in the development of the IEP:
The Student. If the student chooses not to attend the
IEP meeting, it is required that the student be given alternative
opportunities to have input into the transition plan and service decisions.
The committee must document that the student's preferences and interests
have been obtained and are considered when determining the needed transition
services.
Adult ServiceAgencies. If an agency is likelv to be
providing or paying for a transition service for the student, then a
representative of that agency must be invited to attend the IEP meeting. If
no representative can physically participate, then the committee must seek
alternative ways of obtaining their input into the decisions. For example,
individual communication or telephone conference calling can be used to meet
this requirement.
At all IEP meetings the school division must ensure
that the parents understand the proceedings. This includes the arrangements
for an interpreter for parents who are deaf or parents whose native language
is other than English.
NOTE: An IEP, by regulation, can not be developed with
only the special education teacher and parent present. A school
administrator or designee must be present at all IEP meetings along with all
other required personnel. Additional participants in the IEP meeting may
include the following:
general (regular and vocational) teacher(s)
therapist (e.g., Physical, Occupational, Speech)
vocational evaluator guidance counselor
representatives of community agencies (e.g., Community Service Boards,
Rehabilitation Counselors)
pupil personnel staff
others at the discretion of the school and/or parent
While not mandated under Individuals with Disabilities
Education Act,* it is strongly recommended that regular and vocational
teachers be participants in the development of the IEP. Ongoing
collaboration between teachers is imperative to the success of a student's
performance in regular and vocational education classes. Therefore, the
individual managing the IEP should review or provide a copy of the student's
IEP with those regular and vocational teachers who were unable to attend the
IEP meeting as soon as possible following development of the IEP.
* Under the Carl D. Perkins Vocational and Applied
Technology Education Act of 1990 and Virginia Department of Education's
Regulations Governing Vocational Education, the IEP for students with
disabilities enrolled in occupational preparation programs must be developed
cooperatively by special education and vocational education representatives.
Parent /legal guardian or surrogate parent must receive
prior notification of eat IEP meeting. This notice must contain the
following information:
the purpose of the meeting;
the time, the date, and location of the meeting; and
who will be in attendance.
Remember an IEP meeting must be scheduled at a mutuallv
agreed time and place.
If the parent(s) are unable to attend the IEP meeting,
the school division must use other methods to ensure parent participation in
the IEP development. This may include individual or conference phone calls.
An IEP meeting may be conducted without the student's parents if the school
division is unable to convince them that they should attend. However, there
must be documentation of attempts to arrange a mutually agreed on time and
place.
This documentation may include:
detailed records of phone calls made or attempted and
the results of those calls
copies of correspondences sent to the parents and any
responses, and
detailed records of visits made to the parents' home
or place of employment and the results of those visits.
REVISING THE IEP
Revisions in the IEP may be needed during the school
year for which the IEP is written. These revisions may include changes in
the special education and/or related services; changes or additions of goals
and objectives; addition or termination of related services; changes or
additions of accommodations; and changes in the participation in general
(regular and vocational) education activities.
To make these revisions an IEP committee must be
convened which includes prior notice to the parent/legal guardian or
surrogate parent. If the revised IEP results in the partial termination of
special education and related services, then written parental consent is
required before the partial termination occurs.
Present Level of Educational Performance
The Present Level of Educational Performance is a
written statement which describes the student's strengths, weaknesses and
learning styles in:
academic,
vocational,
social,
behavioral,
perceptual,
physical,
communication, and/or
life skills, as appropriate.
This information should be recent, relevant data from
both formal and informal assessments and observations. All data presented
should be accompanied by an explanation that clearly indicates the student's
current functioning level to all members of the IEP committee. Listing test
scores, numerical attainment, age equivalent or simply naming the disability
is insufficient. These descriptive statements must be as complete and
accurate as possible, for they are the foundation upon which the goals and
objectives are built and the needed supplementary aids and services are
determined.
If formal tests have been administered, give the full
name of the test, level(s) and form(s); and date administered. Do not
abbreviate. List all subtests, and record percentiles and standard scores,
record age and grade equivalent scores only if standard scores and
percentiles are nat available. Also, when given a choice, standardized test
scores should be computed according to age norms (best practice).
These documents are helpful tools in planning and
writing for the Present Level of Educational Performance
Components of a Present Level of Educational
Performance - Diagram, Objectives, and Checklist
Student Profile - Student Form
Student Profile - Parent Form
Annual Goal(s)
An annual goal(s) is a statement(s) of what a student
with a disability can reasonably be expected to accomplish in a years time
in a specific area(s). It is written to address an area of weakness
identified in the Present Level of Educational Performance. THERE MUST BE A
DIRECT CORRELATION BETWEEN THE ANNUAL GOAL(S) AND THE PRESENT LEVEL OF
EDUCATIONAL PERFORMANCE.
Annual goals reflect answers to the question: What do
we want the student to be able to do in a years time? The goals must reflect
knowledge of the student's current functioning in each skill area, the next
sequence of skills in that area and some estimate of the student's rate of
learning. If the learning rate is underestimated and the student achieves
the annual goal(s) earlier, then new goal(s) can be added. Priorities are
established in choosing goals based upon the student's physical limitations,
age, time left in school, and expectations for the future. Thus the annual
goals in the IEP are:
stated in terms of measurable, observable behaviors;
inclusive of the major deficit areas identified in the
present level of educational performance: communication, behavior,
academics, socialization, selfhelp, perceptualmotor, grossmotor, vocational,
related services, and transition services;
answers to the questions:
Who - will achieve?
What - skill or behavior?
How - in what manner or at what level?
Where - in what setting or under what conditions?
based on the student's present level of functioning;
realistic in terms of the student's physical and
cognitive abilities;
prioritized on the basis of the student's age and
amount of time left in school; and
prioritized to meet the student's need and to help the
student live independently.
NOTE: The goals written should generalize across
programs and be written to meet the unique needs of the student. Although
there are no regulations regarding the content of IEP goals, they should NOT
be written to address specific curriculum or course requirements in general
education classes; and they should NOT be written to the specific programs
in which the student will participate.
Theis document is a helpful tools for perparing and
writing the annual goals secion within the IEP:
Annual Goals: Objectives and Checklist
Short-Term Objectives
Short-term objectives include a number of steps in the
sequence of steps moving the student toward each annual goal. These
objectives are not as specific as lesson plans, but rather the intermediate
steps between the student's present level of educational performance and the
related annual goal. The objectives must be stated in behavioral, measurable
terms and state what the student will accomplish. Thus the shortterm
objectives in an IEP:
are based on annual goals relative to the present
level of educational performance;
are based on a sequence of skills;
are stated in observable behavioral, measurable terms;
and
answer the questions:
Who - will achieve?
What - skill or behavior?
How - in what manner or at what level?
Where - in what setting or under what conditions?
When - by what time an ending date?.
NOTE: The objectives written should generalize across
programs and be written to meet the unique educational needs of the student.
Although there are no regulations regarding the content of IEP objectives,
they should NOT be written to address specific curriculum or course
requirements in general education classes and they should NOT be written to
the specific programs in which the student will participate.
Evaluation Criterion
Evaluation criterion is the level of performance
necessary for mastery of a given objective. This can be expressed in
percentage of accuracy required, number of times a certain performance is
required, etc.
Evaluation Frequency (Schedules)
Evaluation frequency is the schedule upon which a
student is evaluated. It tells how often a student will be evaluated on a
given objective. Objectives may be assessed daily, weekly, monthly, or on/by
a specific date. The frequency of evaluation for each objective will vary
based upon:
the nature of the specific objective,
the developmental level of the student, and/or
the student's anticipated rate of growth.
Evaluation Procedure
Evaluation procedure is the manner in which the skill
will be assessed. Procedures may include specific tests, teacher-made tests,
curriculum materials, interviews, anecdotal records, observations, and
student portfolios (academic and vocational).
This additional document is a usefull tool in writing
the short term section of the IEP.
SERVICE DELIVERY
Service delivery includes special education and related
services and participation in general (regular and vocational) education.
Special Education and Related Services|
List all special education services required by the
student and all related services required by the student to benefit from the
student's special education program. The determination of the special
education and related services is based upon the student's IEP goals and
objectives that correlate to the student's present level of educational
performance.
Direct Special Education Services: Direct services are
specialized instructional services provided directly to the student.
Instruction may be provided in the general education classroom, the special
education classroom, community or other appropriate settings.
Indirect Special Education Services: Indirect services
include consultation services, in which the special education educator is
not responsible for direct instruction, but rather consults with the general
education teacher(s) and other service providers (e.g., school psychologist,
vocational counselor, guidance counselor) to assist them in developing
programs appropriate for the student. The special educator may meet with the
student for monitoring purposes. The general education teacher(s) of all
mainstreamed students should be provided consultation services as needed.
Related Services: Related services means
transportation, and such developmental, corrective and other supportive
services (including speech pathology and audiology, psychological services,
physical and occupational therapy, recreation, including therapeutic
recreation, social work services, counseling services, including
rehabilitation counseling, and medical services, except that such medical
services shall be for diagnostic and evaluation purposes only) as may be
required to assist a child with a disability to benefit from special
education.
Transition Services: The IEP for students beginning no
later than the age of sixteen (16) and annually thereafter (and at a younger
age, if determined appropriate) must contain a statement of needed
transitional services. This includes when appropriate, a statement of the
interagency responsibilities or linkages (or both) before the student leaves
the school setting.
Transition services are a coordinated set of activities
for a student designed with an outcomeoriented process, which promotes
movement from school to postschool activities, including:
postsecondary education,
vocational training,
integrated employment (including supported
employment),
continuing and adult education,
adult services,
independent living, and
community participation.
The coordinated set of activities shall be based on the
individual student's needs, taking into account the student's preferences
and interests, and shall include:
development of employment and other postschool adult
living objectives,
instruction,
community experiences, and, when appropriate,
acquisition of daily living skills and functional
vocational evaluation.
NOTE: All IEPs of students age 16 and older must
address needed transition services in:
the development of employment objectives
the development of adult living objectives
specialized instruction in transition areas
community experiences to meet transition goals
For each of these areas, if no transition services are
needed at the time of the annual IEP, then the IEP committee must document
why services are not needed.
Some students will require transition services in the
areas of acquiring daily living skills and functional vocational evaluation.
The inclusion of these areas on the IEP is left to the discretion of the IEP
committee.
P.L 101476, Individuals with Disabilities Ed Cation
Act, formerly P.L. 94142, Education of the Handicapped Act.& Alive
Technology Services
Assistive Technology Services: Assistive technology
services means Many service that directly assists an individual with a
disability in the selection, acquisition, or use of an assistive technology
devises. This includes:
the evaluation of the needs of an individual with a
disability, including a functional evaluation of the individual in
theindividual's customary environment;
purchasing, leasing, or otherwise providing for the
acquisition of assistive technology devices by individuals with
disabilities;
selecting, designing, fitting, customizing, adapting,
applying, maintaining, repairing, or replacing of assistive technology
devices;
coordinating and using other therapies, interventions,
or services with assistive technology, such as those associated with
existing education and rehabilitation plans and programs;
training or technical assistance for an individual
with disabilities, or where appropriate, the family of an individual with
disabilities; and
training or technical assistance for professionals
(including individuals providing education and rehabilitation services),
employers, or other individuals who provide service to, employ or are
otherwise substantially involved in the major life functions of individuals
with disabilities."
Assistive technology devices or services shall be made
available to students with disabilities either as supplementary aids and
services that enable the student with a disability to be educated in the
general (regular and vocational) education classes or as special education,
related services.
P.L 101476, Individuals with Disabilities Education
Act, formerly P.L. 94142, X,dlzmtieen of the ndzeap,oed Act.
Time Frame and Personnel
For each of the services required by the student, one
must include the following based upon the student's needs:
Hours/Day: State the total number of minutes and/or
hours per day for each service that is provided for the student
Times/Week: State the total number of times per week
that each service is provided for the student.
Dates of Vitiation and Duration: Enter the
month/day/year that you expect the service to begin and the expected
month/day/year that you anticipate the service will end.
Accommodations
Any accommodations including supplementary aids and
services needed by the student to assist the student in both special and
general (regular and vocational) education should be clearly listed and
described in the IEP. This may include instructional modifications,
assessment modifications, adaptive equipment, and/or assistive technology
devices.
NOTE: The term assistive technology devices means any
item, piece of equipment, or product system, whether acquired commercially
off the shelf, modified, or customized, that is used to increase, maintain,
or improve functional capabilities of individuals with disabilities.
General Education Services and NonacademicActivites
Students with disabilities must be given the
opportunity to participate with their nondisabled peers to the maximum
extent appropriate in general (regular and vocational) education,
nonacademic and extracurricular activities. The extent to which the student
participates needs to be documented on the IEP. This may be done in the same
manner as special education and related services.
PLACEMENT
Once a student's IEP has been developed, the next step
is to determine where the student will receive the services outlined in the
IEP. This decision is made only after the annual goals and short-term
objectives have been agreed to. The student's placement must be based upon
the student's goals and short-term objectives.
The placement of the student must be in the least
restrictive environment (LRE) appropriate for that student. When determining
this, one must consider the following:
that the student has the opportunity, to the maximum
extent appropriate, to participate with nondisabled ageappropriate students
in academic, nonacademic, and extracurricular activities;
that the student will be served in a setting as close
as possible to which the student would be assigned if the student did not
have a disability;
that the amount of time and the distance the student
must be transported from his/her home is considered
that the student is removed from the regular
educational environment only when the nature and severity of the disability
is such that education in regular classes with the use of supplementary aids
and services cannot be achieved;
that consideration is given to any potential harmful
effects the placement may have on the student;
that the placement provides the quality of services
the student requires; and
that the program/services as specified in the
student's IEP is appropriate to meet the student's needs.
To assist in determining the placement, the IEP
committee should consider a continuum of services. Once chosen, a
justification statement is needed to explain why the option was chosen. The
continuum options include:
Option 1 Direct instruction and/or consultative
services within regular/vocational education
Option 2
Direct instruction and/or consultative services within
regulare/vocation education with content instruction in a resource room
Option 3
Direct instruction and/or consultative services within
regular/vocationaleducation with content instruction in a more special
education classes
Option 4
Self-contained in a special education classroom with
integration as appropriate
Option 5
Self-contained in a special education classroom with
no integration in regular public school
Option 6
Separate public day school for students with
disabilities
Option 7
Separate private day school for students with
disabilities
Option 8
Public and/or private residential facilities
Option 9
Homebound
Option 10
Hospital
NOTE: Before special education and related services are
provided to a student with a disability, an IEP must be in effect including
consent for initial placement Also, the IEP must be implemented as soon as
possible following the IEP meeting.
Finally, once the IEP has been developed/revised the
parent must receive a copy of the IEP, at no cost, and a copy of their
procedural safeguards.
CONFIDENTIALITY
Although student confidentially must be ensured, the
contents of the student's IEP should be shared with all instructional staff
serving the student. The individual managing the student's IEP should review
the IEP's goals and objectives including accommodations with all of the
student's general (regular and vocational) education teachers. One must
remember that these individuals are considered to have a bona fide
educational interest in the student and therefore, as such, have access to
all confidential information.
REFERENCES
Anderson, W., Chitwood, S., & Hayden, D. (1990).
Negotiating the special education maze: A guide for parents and teachers
(2nd ed.). Rockville, MD: Woodbine House.
Chesterfield County Public Schools. (1991). Guidelines
and procedures for special education and IEP development. Chesterfield, VA:
Author.
Individuals With Disabilities Education Act of 1990 (P.L.
101476).
34 Code of Federal Regulations Part 300.
34 Code of Federal Regulations Part 300, Appendix C,
Notice of interpretation. IEPs.
About the Author: Harley A. Tomey, III is a Learning
Disabilities specialist for the Office of Special Education and Student
Services at the Virginia Dpeartment of Education and Student Services ( P.O.
Box 2120 Richmond, VA 23218-2120)
|
ABA |
Applied Behavior
Analysis |
|
ADA |
Americans with
Disabilities Act |
|
ADR |
Alternative Dispute
Resolution |
|
ADD; AD/HD; ADHD;
ADD/In |
Attention-Deficit/Hyperactivity Disorder;
ADD Inattentive |
|
AHEAD |
Association on
Higher Education and Disabilities |
|
AP |
Advanced Placement |
|
AP; APD |
Auditory Processing
Disorder |
|
ARD |
Admission, Review,
and Dismissal (Committee) |
|
AS |
Asperger's Syndrome |
|
ASL |
American Sign
Language |
|
AT |
Assistive Technology |
|
BIP;
BMP |
Behavior
Intervention Plan; Behavior Management Plan |
|
BOE |
Board of Education |
|
CAP; CAPD |
Central Auditory
Processing Disorder |
|
CAST |
Center for Applied
Special Technology |
|
CBA |
Curriculum-Based
Assessment |
|
CCLD |
Coordinated Campaign
for Learning Disabilities |
|
CEC |
Council for
Exceptional Children |
|
CFR |
Code of Federal
Regulations |
|
CHADD |
Children and Adults
with Attention-Deficit/Hyperactivity Disorder |
|
COPAA |
The Council of
Parent Attorneys and Advocates |
|
CPSE |
Committee on
Preschool Special Education |
|
CSE |
Committee on Special
Education |
|
CST |
Child Study Team |
|
DCD |
Developmental
Coordination Disorder |
|
DD |
Developmentally
Disabled; Developmentally Delayed |
|
DOH |
Department of Health |
|
DSM-IV;
DSM-IV-TR |
Diagnostic and
Statistical Manual of Mental Disorders — fourth edition;
Diagnostic and Statistical Manual of Mental Disorders — fourth
edition, text revision |
|
DSS |
Disability Support
Services |
|
EBD |
Emotional and
Behavioral Disorders |
|
ECDC |
Early Childhood
Development Center |
|
ED |
Emotionally
Disturbed |
|
EDGAR |
Education Department
General Administrative Regulations |
|
EH |
Emotionally
Handicapped |
|
ELL |
English Language
Learner |
|
ERIC |
Educational
Resources Information Center |
|
ESL |
English as Second
Language |
|
ESY |
Extended School Year
Services |
|
ETS |
Educational Testing
Service |
|
FAPE |
Free Appropriate
Public Education |
|
FAQ |
Frequently Asked
Questions |
|
FERPA |
Family Educational
Rights and Privacy Act |
|
fMRI |
Functional Magnetic
Resonance Imaging |
|
FSP |
Family Support Plan |
|
GATE |
Gifted and Talented
Education |
|
GE |
General Education |
|
GED |
General Education
Diploma |
|
GPA |
Grade Point Average |
|
GT/LD |
Gifted and Talented
with Learning Disabilties |
|
HI |
Hearing Impaired |
|
HOH |
Hard of Hearing |
|
HS |
High School |
|
IDA |
International
Dyslexia Association |
|
IDEA |
Individuals with
Disabilities Education Act |
|
IEE |
Independent
Educational Evaluation |
|
IEP |
Individualized
Education Program |
|
IEPT |
Individualized
Education Program Team |
|
ITP |
Individual
Transition Plan |
|
IQ |
Intelligence
Quotient |
|
K-12 |
Kindergarten through
12th Grade |
|
LEA |
Local Education
Agency |
|
LBLP;LiPS; LMB;LM-B |
Lindamood-Bell
Language Program |
|
LD |
Learning Disability |
|
LDA |
Learning Disability
Association |
|
LRE |
Least Restrictive
Environment |
|
MBD |
Minimal Brain
Dysfunction |
|
MDT |
Multidisciplinary
Team |
|
MH |
Multiply Handicapped |
|
MR |
Mental Retardation |
|
MRI |
Magnetic Resonance
Imaging |
|
MS |
Middle School |
|
NCLB |
No Child Left Behind
Act of 2001 |
|
NCLD |
National Center for
Learning Disabilities |
|
NICHCY |
National
Dissemination Center for Children with Disabilities formerly
National Information Center for Children and Youth with
Disabilities |
|
NICHD |
National Institute
for Child Health and Human Development |
|
NIH |
National Institutes
of Health |
|
NILD |
National Institute
for Learning Disabilities |
|
NIMH |
National Institutes
of Mental Health |
|
NLD;NVLD |
Nonverbal Learning
Disability |
|
OCD |
Obsessive-Compulsive
Disorder |
|
OCR |
Office for Civil
Rights |
|
ODD |
Oppositional Defiant
Disorder |
|
OG; O-G |
Orton Gillingham
[reading method] |
|
OHI |
Other Health
Impaired |
|
OMRDD |
Office of Mentally
Retardation and Developmental Disabilities |
|
OSEP |
Office of Special
Education Programs |
|
OSERS |
Office of Special
Education and Rehabilitative Services |
|
OT |
Occupational
Therapist; Occupational Therapy |
|
P & A |
Protection and
Advocacy |
|
PAC |
Parent Advisory
Committee |
|
PACER |
Parent Advocacy
Coalition for Educational Rights |
|
PDA |
Personal Data
Assistant |
|
PDD; PDD-NOS |
Pervasive
Developmental Disorder; Pervasive Developmental Disorder Not
Otherwise Specified |
|
PSAT |
Preliminary
Scholastic Aptitude Test |
|
PT |
Physical Therapist;
Physical Therapy |
|
PTA |
Parent-Teacher
Association |
|
PTI |
Parent Training and
Information (Center) |
|
PTSD |
Post Traumatic
Stress Disorder |
|
RFBD |
Recording for the
Blind & Dyslexic |
|
RSP |
Resource Specialist
Program |
|
SAT |
Scholastic Aptitude
Test |
|
SD |
School District |
|
SED |
State Education
Department; Severely Emotionally Disturbed |
|
SI |
Sensory Integration |
|
SLD |
Specific Learning
Disability |
|
SLP |
Speech and Language
Program |
|
SMT |
Simultaneous
Multisensory Teaching |
|
SP/Lang, SP/LG |
Speech and Language |
|
SPED |
Special Education |
|
SSI |
Supplemental
Security Income (related to Social Security) |
|
SST |
Student Study Team |
|
TESOL |
Teaching English to
Speakers of Other Languages |
|
URL |
Uniform Resource
Locator [website address] |
|
V/V |
Verbalization/Visualization |
|
WIAT |
Wechsler Individual
Achievement Test |
|
WISC; WISCIII;
WISCIV |
Wechsler
Intelligence Scale for Children |
|
WJ; WJ-III, WJIII;
WJ-4; WJ4 |
Woodcock-Johnson
Psychoeducational Battery |
The information provided is
considered general medical information for educational purposes and is not a
substitute for the advice of your physician. If you think that your child
needs medical attention, please go to or contact your physician or nearest
health care provider.
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