In this video guide, Julie Swanson and Jennifer Laviano, explain everything you need to know about the Individuals with Disabilities Education Act and your special education rights.
In each video, Julie and Jennifer have broken down the IDEA to specific, easily-digested segments allowing you to explore the intricacies of this complex legislation that only you can enforce.
Attorney Jennifer Laviano is in private practice in Connecticut. Her representation of children with special needs encompasses the full spectrum of advocacy under the IDEA (Individuals with Disabilities Education Act ), from attendance at IEP Team meetings and Mediation, to zealous and experienced litigation in Due Process Hearings and Federal Court.
Julie Swanson is in private practice as a special education advocate in Connecticut. After her son was diagnosed with autism, Ms. Swanson decided to change careers and returned to school to obtain an additional degree as a Disability Specialist.
What is the IDEA – Individuals with Disabilities Education Act?
Julie: 00:13 Perhaps you’ve heard the term “idea,” or the IDEA, which stands for the Individuals with Disabilities Education Act, and it’s the cornerstone of all special education. Jen, can you tell us more about it?
Jennifer: 00:25 Sure, I can. So the IDA was originally enacted in 1975, and at that time it was called the Education for All Handicapped Children Act, and it has been reauthorized over the years by Congress and eventually the name was changed, and now we call it IDEA, the Individuals with Disabilities Education Act. IDEA is the federal special education law. It is the federal law that requires each state that opts into the program, which all states do, in order to receive the funding. That they are required to comply with both the procedural requirements of the federal special education law as well as the substantive requirements of the special education law.
Jennifer: 01:03 So it’s the governing statute, and so all parents who either suspect their child to have a disability or who know that their child has a disability, who are school aged, and by that I mean even very young children if you already know, because the IDA does cover early intervention services, you should be very familiar with the IDEA, because that’s where all of your rights are located is right in that statute.
Julie: 01:27 And as much as I wouldn’t expect parents to be a special education advocate or a special education attorney, I think there are basic things that all parents who have a child with a disability who has an individualized education plan or suspect that their child has a disability really should know the basic tenets of the IDEA.
Jennifer: 01:48 Yeah, and what’s important for parents to understand is, just because your child has a diagnosed disability does not necessarily mean that you’re eligible for services under the IDEA. And there are other federal statutes that are involved with disability-related educational issues, such as Section 504 of the Rehabilitation Act, which is mainly an accommodations act, it’s not a services act. We can talk about that at a different time. But the IDEA basically says that if a child is found eligible, and there are a whole lot of procedures that go into place of finding a child eligible. If the child is found eligible for special education and related services, then they are entitled to what you referred to early, an Individualized Education Program, and that has all sorts of requirements as well.
Jennifer: 02:33 So just having a disability doesn’t automatically entitle a child to services under the IDEA, but if your child has a diagnosed disability, then it’s time to trigger that process if it is impacting the child’s education.
Jennifer: 02:46 Something parents should keep in mind, though, is that the IDEA is the federal law. There are also state laws that govern special education, and in some circumstances, provide even more protection to children with disabilities and more rights under the special education laws of the individual state. So the federal law is like the floor, but by our system of government, you state could have a higher ceiling. And so you should check out your state laws as well.
Julie: 03:09 So the bottom line is, Jen, that the IDEA is the law that’s there to protect parents.
Jennifer: 03:22 Yep.
What is a Free and Appropriate Public Education?
Jennifer: 00:13 If you’ve been researching your child’s rights, you’re probably coming across the term called FAPE, F-A-P-E, a whole lot, and you’re probably wondering what it is, so we’re here to tell you. FAPE is a Free and Appropriate Public Education, and it is the cornerstone of the IDEA, the Individuals with Disabilities Education Act. FAPE is what each child who’s identified for special education services is entitled to every school year.
Julie: 00:40 Let’s break down FAPE into all of the letters and what all of these words stand for. Let’s start with “free.” What does that mean?
Jennifer: 00:47 Free means at no cost, okay? That’s the language of the statute. Free means that parents of children who have special education needs should not have to be paying for their child to receive the public education to which they’re entitled, just as their counterparts are not. The whole idea being that the IDEA is really a civil rights law, and why should parents of children who have disabilities be paying for their kids to have an education when parents of children who do not have disabilities don’t have to pay for a public education?
Julie: 01:16 You know what I always say to people, is imagine two kids getting on a school bus who live across the street from each other. One child is a typically developing child who’s in regular education, and the other child is a child who has a disability who is receiving an individualized education plan under FAPE, the Individuals with Disabilities Education Act. The child who’s in regular education who does not have a disability, their parents do not pay for them to receive their public education. In fact, if the child who lives across the street has to pay for their education, they’re actually being discriminated against. They’re being held to a different standard, which is why it’s so important to remember that your child’s special education should, in theory, be of no cost to you.
Jennifer: 02:05 That’s right, and so that’s why there is the free and Free and Appropriate Public Education.
Julie: 02:09 Now let’s get to “appropriate,” because that’s, you know, that’s really …
Jennifer: 02:12 Okay. Appropriate’s much more nebulous than free …
Julie: 02:14 Yes.
Jennifer: 02:15 And the reason it is is that appropriate, what’s appropriate to me may not be what’s appropriate to you. You may think something’s appropriate and the school district may not think it’s appropriate. With a word like appropriate, how does anyone know whether or not their child is receiving the program that they’re legally entitled to? The word has been interpreted by many courts over many years and it varies somewhat depending on where you live because of our system of government. So if you live on one circuit, they may have slightly different language, but the bottom line is that when the IDEA was passed, the whole idea as well as really just to get kids access, kids with disabilities, access to our public schools. That was 1975-
Julie: 02:54 And we’ve moved beyond that.
Jennifer: 02:54 Thankfully, we’ve moved beyond that, and we’ve moved to the place where we want children to get meaningful educational benefit from their program. So the standard is higher and I would argue the standard is getting higher and higher every time the IDEA is reauthorized by Congress, so whether our program is appropriate depends on the individual child’s needs, the unique needs of each child are going to be different and one would hope that the IEP, the Individualized Education Program, would reflect that, and so when a IEP team or a … unfortunately, when I get involved, the hearing officer or court are trying to determine whether or not that document, that program actually gives the child appropriate program, they’re going to look at a lot of factors. They’re going to look at the child’s potential. They’re going to look at whether or not this particular child needs more in this area of academic support, whereas another child might need more functional skills. It just depends on the kid.
Julie: 03:48 Well, and what makes it appropriate, there are so many factors involved in that, and it’s a word that’s open for interpretation, and …
Jennifer: 03:57 It’s where I come in very often, right.
Julie: 03:59 So “public.”
Jennifer: 04:00 Public.
Julie: 04:00 Public versus a private school that you might go and pay for privately because you’ve decided to opt out of the public education system, but what else can you say about the word public?
Jennifer: 04:11 This is where it gets tricky again, because just as we talked about free, it should be at no cost to parents. Public does not always mean public when you get into special education law and you analyze the cases. The reason I say that is there are a number of cases where a parent doesn’t agree with the public school program offered by their school district, and they have made something called the unilateral placement, where they place their child in a private school program and then they exercise their rights under the IDEA to have the public funds pay for the private school. Now, that is not the norm. I would say that that’s where a parent has tried very hard to keep their usually in the public school, and it’s not working. But in general, special education services are provided and are supposed to be provided in the public schools. It doesn’t always happen that way, but that’s the preference.
Julie: 05:01 Right. And “education.”
Jennifer: 05:03 Education. You and I say this every single day of our lives. Education is more than just academics. This is so important to understand because so often, when I’m representing a parent, the dispute is about the school district not wanting to recognize issues that perhaps the average person doesn’t see as education. That includes a lot of my parent clients. They don’t understand that what they’re looking for is actually part of education. The school district may be saying, well your child is on grade level in reading and math, and their education is just fine, but if the child can’t interact with their peers or have any daily living skills that allows them to be a functional member of society, that too is education.
Jennifer: 05:42 The IDEA is quite clear about this, that education includes adaptive and functional skills. Unfortunately, despite the fact that that’s in the law, I still have to remind school districts of it almost every day.
Julie: 05:53 Well, and what we hear all the time and perhaps you have too, that your child may be too smart to qualify for special education. In fact, that’s one of those things that just completely gets under my skin, and that I often have to remind teams of, that education is far more than academics. It’s social skills, it’s behavior, it’s communication, it’s emotional, it’s perhaps physical therapy, speech and language services, occupational therapy services. It’s not just what kind of grades your child is getting, and that’s just so important to know.
Jennifer: 06:27 Not at all. In fact, I’m often brought into these disputes, because kids who are very intelligent, they sometimes are the last kids to be identified because they slipped through the cracks, because they’re not obviously suffering in the classroom. They may not be learning but they’re not obviously suffering in some way that triggers all the adults to realize it. A lot of my clients have emotional disabilities, and so school districts will say, “Well, look at this kid. When she’s here, she gets straight As, she’s very smart,” and I say, “Yeah, but she’s been here nine days this school year. That’s adversely impacting the education, so …”
Julie: 06:58 Right, excellent.
What is an Individualized Education Program (IEP)?
Jennifer: 00:13 We’re gonna talk now about an IEP. An IEP is an individualized education program. That is the plan that’s defined under the federal law, the IDEA, as what a child is entitled to once they’re found eligible for special education and related services.
Julie: 00:30 Let’s break that down by the letters. Individualized, education, program.
Jennifer: 00:34 Okay. So individualized means that the document, and the IEP is actually a document. It works much like a contract between the parents and the school district. And it’s mandated under the federal law. And it has all sorts of things that it has to have in it that are very detailed, and we don’t have to get into all of that right now.
Jennifer: 00:51 But the document itself is supposed to describe the program that the child is receiving. And the I in individualized is so important because the IEP document is supposed to meet the unique needs of the child for whom it’s written. And that is something that sounds so basic. And yet it’s why I’m in disputes with school districts a lot.
Jennifer: 01:11 Because each child is different. And what I find sadly occurs in a lot of school district, is they offer you the program they have instead of the program the child needs. And even within the same diagnosis, no two child’s needs are identical. And school districts, sadly because it’s easier, is they’ll say, ” Well this is our program for kids who have specific learning disabilities.”
Jennifer: 01:33 Well maybe this child who has a specific learning disability would not be appropriate for that particular program. And unfortunately the IEP reflects pretty much what every other child whose in that program’s IEP looks like. So it’s not really as individualized as it should be to meet the unique needs of that child.
Julie: 01:49 And in order for the program to be appropriate, and we discussed the term free appropriate public education, which is fake. The child’s program must be individualized so it’s appropriate for them. Not the student next to them, not to the student sitting behind them. Individualized for their, as you said, unique needs.
Jennifer: 02:09 Well and there are some tips that I’ll give to parents to start to recognize whether or not their child’s IEP is actually individualized. If as you’re planning it at that IEP meeting, you’re hearing the staff say things like, “Well this goal is being put here because we always have math in the morning and so it’s important that we do.” And it starts to sound like any kid in this class, you could pick them up and cookie cutter this exact document for that child, then it’s really not tailored to the unique needs of that child.
Julie: 02:37 So education.
Jennifer: 02:38 Education. So education is more than just academics.
Julie: 02:41 Yes.
Jennifer: 02:41 It includes functional and adaptive skills. So the IEP is an individualized education plan. It is supposed to focus on the child’s education. Sometimes that means that there are services that are necessary for a child to receive benefit from their education that may even take place in a different environment than school. This is, again, where we have a lot of disputes.
Jennifer: 03:03 So if a child requires home services for five hours a week in order for them to benefit from that IEP, well those services should be listed in the IEP. And even though it may be focusing on daily living skills, that, by definition of the IDEA, is still education.
Jennifer: 03:20 So parents are often faced with arguments with school districts where the parent is saying, “Well he really needs this.” And they say, “Oh well that’s not a school issue.”
Jennifer: 03:28 Well if it’s an educational issue, it doesn’t matter if it’s happening in the school house. It’s still education.
Julie: 03:33 And if you consider the fact that education is not just academics. It’s behavioral. It’s communication. It’s social. It’s emotional well being. It’s perhaps physical therapy, occupational therapy, speech and language services. You can have IEP goals, individualized education program goals, that address all those very specific needs. Not just academic goals.
Jennifer: 03:57 Right. And program is pretty much what it sounds like. You’re developing a plan for the child, but you’re really, it’s a document. But what the document is supposed to represent is what this child’s education looks like. And so depending on the child, it could look very much like a child’s program who doesn’t have an IEP, but maybe they just have addition, one hour a week that they’re pulled out for some support. And for another child, their entire day could be special education and related services. Again, it depends on the unique needs of that child.
Julie: 04:26 And that’s an IEP.
How is an IEP Different from a 504 Plan?
Julie: 00:13 Perhaps you’ve heard of a 504 plan. Well we’d like to explain the difference between a 504 plan and what it is to be in special education and have an IEP or an Individualized Education Program. So what is a 504 plan, Jen?
Jennifer: 00:27 Okay, so 504, and the term gets thrown around, “Oh 504, 504.” What it is is section 504 or the Rehabilitation Act of 1973. In English, it’s an accommodations act. It is a civil rights act that says that any entity that receives federal funding, and that includes schools, but 504 doesn’t just apply to schools-
Julie: 00:47 Right.
Jennifer: 00:47 … cannot discriminate against people on the basis of disability nor can they deny the benefits of the institution or the agency because of disability.
Jennifer: 00:55 And that’s a very mouthy way of saying that if your child requires accommodations because of their disability, they’re entitled to a 504 plan, and the easiest way for me to describe the kinds of cases which would easily fall into the category of 504 versus an IEP under the IDEA, The Individuals with Disabilities Education Act, which is a different federal law, is that 504 is an accommodations act, and IDEA is a special education services act. Okay?
Jennifer: 01:26 Now the IDEA also allows for accommodations. A good way to think about it is that an IEP under the IDEA would very likely meet the requirements of a 504 plan, because a 504 plan really is only accommodations. The reverse is not true. Why does all of this matter, okay?
Jennifer: 01:44 Here’s why it matters. Lets just say a child has a peanut allergy, and because of a peanut allergy, they need accommodations in school. Perhaps there are certain materials that can’t be used in the cafeteria or in the art room because the child is allergic and there’s peanuts in that particular equipment or in those particular foods, and so we need to give that child accommodations.
Jennifer: 02:03 There’s nothing different about how that child learns. They don’t need any specialized instruction in order to access their education, leaving out some other kind of a disability. So that child would probably get a 504 plan. A child who requires specialized instruction requires an Individualized Education Program under the IDEA.
Jennifer: 02:21 Those are easy examples. The harder examples are a student who has say an attention deficit disorder. Well perhaps they need a 504 plan, but if it rises to the level where the child requires individualized instruction and related services, then that child might have an Individualized education program.
Jennifer: 02:39 I get brought in a lot where parents have the 504 plan and they don’t think it’s sufficient. They think the child needs more than just preferential seating or untimed testing. They think the child needs services, someone instructing the child. Someone who is trained to instruct the child to remediate the disability, and that’s where the dispute comes in. It’s easy when it’s a peanut allergy, but it’s much harder where it’s a disability that sort of crosses the edge-
Julie: 03:02 Right.
Jennifer: 03:02 … from accommodation of services.
Julie: 03:04 And you know how I like to explain it.
Jennifer: 03:07 Easier than mine?
Julie: 03:08 A little bit. You’ve explained it very well, but if I had to just succinct it down a little bit, is I like to say that you can have a disability and have 504 plan, and not, like you said, rise to the level of having an Individualized Education Plan. A 504 plan says the schools we recognize the fact that your child has a disability, and we will accommodate him or her, and we will modify things for him and her. But we don’t believe that their disability rises to the level that it has an adverse impact on their education.
Jennifer: 03:42 Right.
Julie: 03:42 Right? And so that’s the confusing thing about it.
Jennifer: 03:44 It’s very confusing.
Julie: 03:44 You can still have a disability and get the 504 plan, or you can have a disability and rise to the level of having an Individualized Education Program. So in a nutshell, that’s 504.
Jennifer: 03:56 That’s 504. Here’s the other piece that I think is important.
Julie: 04:00 Oh boy.
Jennifer: 04:00 I’m sorry, but I have to say it. Many school districts prefer to give kids 504 plans versus IEPs because it’s easier. A 504 plan can be one page and it could say Johnny will have preferential seating. It’s not so easy to comply with the IDEA. It requires a lot more work. Parents have far greater protections under the IDEA, in my opinion, than they do under section 504.
Jennifer: 04:23 Section 504 is an essential statute, and it applies to a lot of situations that are very important to keep in mind, but very often when a parent calls me and says, “My child has a 504 plan, and I’ve been feeling for a very long time that they need services,” I sort of roll my eyes because it’s not that uncommon that a kid gets a 504 plan, when really, they’re supposed to have an IEP.
Julie: 04:41 I think the most important thing is for parents to understand that there is a difference between an IEP, an Individualized Education Program, and a 504 plan, and just knowing that is half the battle.
Jennifer: 04:52 It’s at least half the battle.
What are Related Services?
What is Due Process?
What does it mean to go to Mediation?
What is a Resolution Session?
The is the difference between Eligibility and Diagnosis?
What is an Initial Evaluation?
What is a Triennial Evaluation?
What is an Annual Review?
What does Least Restrictive Environment (LRE) mean?