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PL 94-142 Education for All Handicapped Children | What a Great IDEA it was!

by John Darer® CLU ChFC MSSC RSP CLTC

The Education for All Handicapped Children Act, P.L. 94-142,  (also known as the Individuals With Disabilities Education Act, or IDEA), was signed into law on November 29, 1975,  by the late President Gerald Ford.

It may be hard to believe for some, but years ago children with disabilities were referred to in legal decisions as imbeciles. If a child was mentally retarded, by statute, the child had no right to an education. If a child was in a wheelchair, the child was a fire hazard and excluded from public school.(Source: Wright Law Firm)

“It bears remembering that, prior to 1975, children in the United States with intellectual disabilities, physical disabilities and even sensory disabilities were not guaranteed access to a public education.  Today, in America, we recognize that people with disabilities – like all people – have unique abilities, talents, and aptitudes.  And that America is better, fairer, and richer when we make full use of those gifts.”  Iowa Senator Tom Harkin November 18, 2010

As an uncle of a child with Asperger's, who has developed into a fine young man; as someone who has friends and cousins who have children on the autism spectrum; as someone who has provided settlement planning, financial advice and solutions to individuals and families settling claims and lawsuits who have children, grandchildren, nieces or nephews with profound disabilities, I am grateful that our country has such a law. I am also grateful to those members of Congress who continue to support such laws and those advocates around the USA who work tirelessly to assure that such children and their families are aware of and actually get the benefits they deserve.

For more information about the history of the Individuals With Disabilities Education Act (IDEA) please watch this excellent and information  video celebrating 35 years of IDEA.

Can a Child Who Has Never Received Special Ed in Public School Get Reimbursed For Private Placement?

A question of interest to parents of children with Special Needs is now before the United States Supreme Court. Oral arguments were heard on October 1, 2007. The case in question stems from a dispute between the Board of Education for the City School District in the City of New York. The arguments  in Board of Education of City of New York v. Tom F. can be found on the Wright law website by clicking here

The question before the Supreme Court was whether parents of a child who has never received special education and related services from the public school district can obtain reimbursement for a unilateral private placement. For parents to be eligible to obtain reimbursement for a private placement, they must prove that the school district did not offer their child a free appropriate public education (FAPE). They must also prove that the private program they selected provided their child with an appropriate education.

The school district argued that the 1997 Amendments to the Individuals with Disabilities Education Act ("IDEA") also require the child to have “previously received special education and related services under the authority of a public agency.” §1412(a)(10)(C)(ii). The parents, who were supported by the United States Department of Justice, argued that nothing in the IDEA forces a child to attend an inappropriate program before he can attend an appropriate program in a private school.

IDEA Report Card released by Department of Education

One of the issues facing the parent or guardian of a child with a physical or learning disability at the end of a lawsuit is determining the best environment for their child's or ward's educational needs.

As amended in 2004, the Individuals with Disabilities Education Act (IDEA) requires the United States' Secretary of Education to make an annual determination as to whether each state is meeting the requirements of the statute. Under the IDEA each state is required to have in place a State Performance Plan (SPP) that evaluates the state's efforts to implement the requirements and purposes of Parts B or C of the IDEA, and describes how the state will improve its implementation of these programs. Each state must then submit an Annual Performance Report (APR) detailing its progress in meeting the targets it established in its SPP.

The IDEA details four categories for the Secretary's determination:

• Meets the requirements and purposes of the IDEA
• Needs assistance in implementing the requirements of the IDEA
• Needs intervention in implementing the requirements of the IDEA
• Needs substantial intervention in implementing the requirements of the IDEA

The current reports lists the:

States Meeting Part B requirements

Alaska
Connecticut
Hawaii
Michigan
Oregon
Pennsylvania
Tennessee
Virginia
Wyoming

States Meeting Part C requirements

Alabama
Alaska
Connecticut
Commonwealth of the Northern Marianas Islands
Iowa
Maryland
Montana
Nebraska
Oklahoma
Oregon
South Dakota
Texas
Utah
West Virginia
Wyoming

For more information on the new requirements, to see how other states fared on "the report card" and other valuable information, please refer to the Department of Education web site.

Supreme Court to Clarify What Is Splitting Circuit Courts on Parental Pro Se Under IDEA

by John Darer

"To what extent, if any, can you represent your disabled child's rights, as a non-lawyer, pro se in a federal court action brought pursuant to the Individuals with Disabilities Education Act ("IDEA")?

If you live in Maine, Massachusetts, Rhode Island, New Hampshire, or Puerto Rico, the United States Court of Appeals for the First Circuit ruled that you may represent your child's IDEA rights at every stage of the process.

If you live in Ohio, Michigan, Kentucky, or Tennessee, the United States Court of Appeals for the Sixth Circuit ruled that you cannot represent your child's IDEA rights and must retain an attorney. If you cannot find or afford an attorney, your child's case will be dismissed - and you may be prosecuted for Unauthorized Practice of Law. See Jacob Winkelman, et. al. v. Parma City Schools.

The United States Supreme Court will soon clarify when a non-lawyer parent of a disabled child may file a lawsuit, without a lawyer, to enforce the child's rights under the IDEA and hopefully resolve the split betwen the Circuit Courts. Oral argument is scheduled for February 27, 2007.

Special Education Advocates Pete and Pam Wright "find it unlikely that Congress intended to put parents who attempt to proceed pro se at the even greater disadvantage of preventing their suits from going forward at all", have built an excellent website highlighting the major issues in Winkleman. You can access it here

Education Week Article October 4, 2006 here