January 27, 2012

504 Wins, IDEA Looses- Happy 2012

January has been a busy month. I keep thinking about the Mayan calendar and the end of the world in 2012. However you interpret it, this is going to be quite a year. Thus far in January the American Psychiatric Association has redefined autism so that millions on the spectrum will not meet the standard for that diagnosis. The autism epidemic has suddenly vanished. A major reading research study documents the unrelenting problem of illiteracy. Response to Intervention saves the day. We are at the threshold of a presidential election, with one ultimate issue- states’ rights versus the federal government. And what about that awful entitlement, IDEA? Well, we even got some news about that. Though I’ve said it for the last two years, The Individuals with Disabilities Education Act is now officially dead. Dead as a doornail. The media has focused on the autism skirmish as a result of its redefinition, when that isn’t the big news. Since September many school districts and hospitals held workshops on understanding Section 504 and writing 504 plans. Nothing similar happened with IDEA in the same time frame. There is suddenly a new category of teacher, an RTI (Response to Intervention) teacher, with advertisements by schools throughout the country seeking those specialists. Everything is to remain in general education, and a hybrid between a regular and special education teacher has been created. From a political perspective, how do you make sense of this complex package- for it is a package deal. The economy is broke. Schools can’t afford special education. Inclusion has become the only placement option for most. Entitlement is a dirty word. Referrals to special education are consistently refused, and when testing does occur, eligibility for special education is rejected by the IEP team for higher functioning children. So how is this mess sold by the government to the disability community? We go back to 1973 and the passage of the Vocational Rehabilitation Act of 1973, and its Section 504. Yup! That’s where we are, 1973. Special education has returned to its roots as a civil rights statute without any funding, any parental involvement, minimal testing, and no specified due process rights. It’s what all of the school districts and state governments wanted and, in this election year, get. IDEA looses, its reauthorization shelved, with policy and other related laws chomping at its flesh like a crazed Packman. As you read, remember: THERE IS NO MONEY TO IMPLEMENT THIS POLICY GUIDANCE.

For the last 30 years there has been a vigorous debate among educators and clinicians about changing IDEA’s classification system to one of three categories: mild, moderate and severe. Mild retardation and learning disabilities were seen to have the same educational needs. With sufficient modifications, the moderately impaired could also remain in the general education classroom without being classified. The goal was to take the mandates and the funding of IDEA and use them only for the severely impaired. Many, including myself, made long and strong arguments about the needs of those who were both gifted and disabled. We said that with more intelligence and creativity, combined with disability, there are also more problems, sometimes ending in death. Nobody listened then, and nobody is listening now. So we are faced with what amounts to a phase-in of that 30 year old goal of creating three categories of disability, championed by school psychologists and a variety of other specialties. It looks like Sec. 504 will finally get to serve the mild to moderate disabilities. IDEA will likely serve only those most profoundly disabled, the funding stream narrowed for those with the most overt needs.

On January 19, 2012, the Assistant Secretary for Civil Rights (OCR), Russlin Ali, published a letter aimed at elementary, secondary and postsecondary schools (http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201109.html) It seems that OCR was distressed that 22 years after the passage of the Americans With Disabilities Act (ADA), schools were still not implementing it. (Do you hear the vague murmur from the IDEA coffin- “But what about me? I was born 37 years ago and nobody implemented me, either. Hello…Hellooo…Hello.”) Ali wanted to enforce Title II of the ADA, prohibiting discrimination on the basis of disability. Enforcement is also sought for Section 504, designed to protect the rights of individuals with disabilities in programs that get federal money. Amendments to the ADA in 2008 are explained in an attached Q&A to help schools understand the facts, as well as their duties (http://www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html).

So as to fully grasp what is contained in the Q&A, as well as the implications, let’s review the vocabulary shared by both Section 504 and IDEA:

Special education
Related Services
Evaluation
FAPE

This common vocabulary makes the words and their meaning run together so as to be indistinguishable from each other. There are many differences, though. And all of those differences are what schools and state governments hate and parents rely on to join them as partners in IDEA decision-making. Keep that in mind as you read OCR’s clarification to schools about how to use the ADA and 504. Also note that the U.S. Department of Education views this as a “significant guidance document” under the Office of Management and Budget. At the outset, here is what OCR said about the IDEA.

The…ADA does not amend the IDEA, and, therefore does not affect that laws’s requirements. The IDEA provides Federal financial assistance to states, and through them to local educational agencies or school districts, to assist in providing special education and related services to eligible children with disabilities. The IDEA is administered by the Department’s Office of Special Education Programs. States must comply (really?) with a number of specific legal requirements to receive IDEA funds. In order to be eligible under the IDEA, a student must fall into one or more of the disability categories…and must also…need special education. Students who meet the eligibility criteria under the IDEA are also covered by Section 504 and Title II if they have a disability as defined under those laws. However, coverage under 504 and Title II of the ADA is not limited to students who meet the IDEA eligibility criteria. If, for example, a student with a disability under Section 504 and the ADA needs only related services to meet his or her educational needs as adequately as the needs of the nondisabled individuals are met, the student is entitled to those services even if the student is not eligible for special education and related services under the IDEA.

Did you get through that? IDEA Special education measures the child against himself, strengths and weaknesses, and the discrepancies between both. Sec. 504 regular education measures the child against the group. This 504 language emphasizes providing equal opportunity for the nondisabled, not meeting the unique needs caused by the disability. 504 casts a wider net for students with disabilities that limit “major life activities” and includes:

Caring for oneself	Performing manual tasks	Seeing
Hearing	Eating	Sleeping
Walking	Standing	Lifting
Bending	Spekaing	Breathing
Learning	Reading	Concentrating
Thinking	Communicating	Working

Learning disabilities emphasize reading, thinking and communicating. Higher forms of autism no longer eligible under that psychiatric diagnosis can have needs met here, yes? Think about it.

Here are some other highlights:

• The definition of disability is to be interpreted broadly without the need for extensive documentation.
• FAPE is the provision of regular or special education and related services that are designed to meet the individual educational needs of persons with disabilities as adequately as the needs of nondisabled persons.
• An individual evaluation must be done before any action is taken regarding placement. Tests must be valid. Whether or not one has a disability should not require extensive analysis. There are no specific circumstances that trigger the obligation to evaluate, that decision governed by the individual circumstances in each case.
• Procedural safeguards:
1. A school district must have a system of procedural safeguards for the identification, evaluation, and educational placement of the student.
2. Parents must be told about this system, notified of any evaluation or placement actions, and allowed to examine their child’s records.
3. Parents are to be given an impartial hearing with opportunity for representation by counsel (And they even got rid of nonlawyers! Way to go!)
4. IDEA procedural safeguards is one way of meeting this requirement.

Note that safeguards occur at the local level and that a state system is not required.

I did the first 504 case in New Jersey about 25 years ago, followed by two others. The first judge had little idea how to apply the wider 504 standard to the evidence, but I lucked out. The second time, the fairest and smartest judge in New Jersey was assigned. He emphasized that 504 has a much wider impact than IDEA and had to be interpreted more liberally. That is the essence of these policy guidance documents. But implementing their content, and differentiating it from IDEA, is the problem. You take a little here, give a little there, and still, nothing will change. There is no money. No funding statute. No strict rules or regulations. That is what P.L. 94-12 was in 1975. It was to fund the special education provisions of 504 by creating an even playing field through comprehensive testing and development of the IEP. But it is now 2012 and I leave you with one recommendation. If you are going to seek due process under IDEA, think about using the contents of this OCR document, and allege violations of the ADA and Title II. This is the politician’s game. Now we have to learn to play it.