Module 4
Related Disabilities: ASD and ADHD & Understanding the Laws Related to Students with
Disabilities
A. Autism Spectrum Disorder
Autism spectrum disorders (ASDs) consist of a group of developmental
disabilities that are caused by problems with the brain. Scientists do not know yet exactly
what causes this disability (Hunt & Marshall, 2012). The term autism spectrum disorder
(ASD) includes several types of conditions with a wide range of symptoms, differences in
when symptoms start, and different levels of severity, from very mild to severe.
However, they share some similar symptoms, such as problems in social interaction. In
its milder forms, only a few of the characteristics of autism are present or they are in a
very mild form. In 2007, the Centers for Disease Control and Prevention (CDC)
estimated a prevalence rate of 1 in 150. In 2009, the CDC found a significantly higher
prevalence of autism spectrum disorders—1 in 110 children. In 2012, the CDC reported
that 1 in 88 children in the United States is being diagnosed with autism—nearly a
doubling of the prevalence since the CDC began tracking these numbers. Autism can now
officially be declared an epidemic in the United States (Centers for Disease Control and
Prevention, 2012). In 2013, The CDC reported that 1 in 50 children is being diagnosed
with autism (Centers for Disease Control and Prevention, 2013).
Autism was first identified as a separate category of disability in the federal
legislation, IDEA, in 1990. Before 1990, autism was included in the category of other
health impaired (OHI) and prior to that in the category of emotional disturbance. The
American Psychiatric Association publishes a reference manual entitled the Diagnostic
and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which provides
criteria for the diagnosis of all mental disorders (2013). The DSM-5 is widely used by
medical specialists, psychologists, and others. Autism was identified in the DSM-IV-TR,
but the category was changed in DSM-5 (2013) to autism spectrum disorder. That is, the
original multicategorical diagnosis has been changed to a single diagnostic category
(Stetka & Volkmar, 2012). (DSM-5 published in May 2013 by the American Psychiatric
Association).
Diagnosing ASD can be difficult because there is no physical medical test, such
as a blood test. ASD is typically diagnosed through the child’s behavior and
development. In addition, there is no medication that can cure autism spectrum disorders.
Four times as many boys as girls are identified with ASD. It is recommended that
treatment begin as early as possible, by age 3 (Eunice Kennedy Shriver National Institute
of Child Health and Human Development, 2008; Centers for Disease Control and
Prevention, 2009).
Virtually unknown as a specific condition until the 1990s, Asperger’s syndrome is
now recognized as a relatively common disability. Asperger’s syndrome was first brought
to the attention of the psychiatric community in 1944 by Hans Asperger (1944), a
Viennese physician, who published an article describing the unusual social isolation of a
group of children with whom he was working. However, Asperger’s syndrome did not
gain wide recognition until the disorder was included in the American Psychiatric
Association’s DSM-IV (American Psychiatric Association, 1994). It is important to note
that three previous autism diagnoses—autism, Asperger’s, and Pervasive Developmental
Disorders—have been replaced with the single diagnosis of autism spectrum disorders as
per the DSM-5 released in May, 2013 (Moran, 2012 and American Psychiatric
Association, 2013).
Individuals with Asperger’s syndrome often have severe difficulty in social
interactions. Asperger’s syndrome is characterized by a reluctance to accept change; an
inflexibility of thought; and an all-absorbing, narrow area of interest. Children with
Asperger’s syndrome are usually extremely good at rote memory skills (e.g., repeating
facts, figures, dates, times) and many excel in mathematics and science. There is a range
of severity of symptoms within the syndrome; the very mildly affected child often goes
undiagnosed, and many others may just appear odd or eccentric (Baker & Welkowitz,
2005). Children with Asperger’s syndrome lack an understanding of the rules of social
behavior, such as eye contact, proximity to others, gesture, and posture. They often
display emotional vulnerability and stress, and, as a result, problems of poor self-esteem,
poor self-concept, and depression are common.
Usually, children with Asperger’s syndrome receive instruction in the general
education classroom, but they often have academic difficulties because of their poor
organizational skills, poor problem-solving skills, and poor motor skills that interfere
with their academic achievement. To succeed in the general education classroom,
children with Asperger’s syndrome need the support of special educators and related
services personnel familiar with this diagnosis. They need help in developing social
skills, in academic planning and programming and in support for their sensory issues.
Direct instruction of social skills is critical. With suitable support and instruction, most
children with AS can be successful in school. Many students with AS are able to attend
college and enjoy a variety of successful careers (Goldstein, Naglieri, & Ozonoff, 2008;
Baker & Welkowitz, 2005; Myles, Cook, Miller, Rinner, & Robins, 2000).
Often students with ASD have an intense interest in a specific topic and they
acquire a broad knowledge about that subject. For example, one student with ASD had
acquired a broad knowledge of Chicago restaurants. If given a location in the city or
suburbs, he could tell you the name of a restaurant, its location, type of cuisine, and the
price range for that restaurant. He used his knowledge to make a Microsoft Access
directory of Chicago restaurants. Another student’s expertise was in geography.
Classmates could count on him knowing the capital of any country or the major rivers in
the states.
The condition of nonverbal learning disorders (NVLD) is capturing the attention
of many psychologists, physicians, and researchers. Children with NVLD may function
well in academic areas but have problems in the social sphere. The condition of NVLD is
not identified within the special education law (IDEA-2004); however, NVLD is
recognized as a disorder in the field of neuropsychology. NLVD is believed to have a
neurodevelopmental basis that involves a dysfunction in the brain’s right hemisphere.
Children with NVLD have difficulty understanding the subtle cues that are
inherent in nonverbal communication and that play such an important role in social
interaction. For example, these children cannot read facial expressions to discern if a
person is sad, happy, or angry. They may not know how to initiate friendships or
recognize the idea of personal space. These social cues are normally grasped intuitively
through observation and living, but children with NVLD need to be taught these social
skills through direct and explicit instruction (Rourke, 1995; Thompson, 1997; Boyle and
Scanlon, 2010).
One mother described her daughter’s NVLD as a serious difficulty in visual-
spatial imagery, noting that her daughter could not find her way to a friend’s house nor
was she able to visualize where her classroom was at school. She had to remember words
and verbal labels to keep from getting lost (Martin, 2004). Students with NVLD often
have a high verbal intelligence, they tend to be early talkers, and they are highly verbal.
Because they do well in reading and decoding in the primary years, their nonverbal
learning problems are frequently missed. Children with NVLD often have poor visual-
spatial abilities, poor nonverbal problem-solving abilities, and low arithmetic skills.
Problems with NVLD become more evident in the later elementary school years, during
adolescence, and in the adult years (Dimitrovsky et al., 1998; Rourke, 1995; Thompson,
1997).
People with NVLD often have difficulty adapting to new situations. Despite their
high verbal intelligence and high scores on receptive and expressive language measures,
they inaccurately read nonverbal signals and cues, and they lack the social ability to
comprehend nonverbal communication cues. If they do not perceive subtle cues in the
environment, they do not know when something has gone far enough, and they cannot
interpret the facial expressions of others. Normally, these social cues are intuitively
grasped through observation; however, individuals with NVLD need to be taught these
social skills through direct and explicit instruction (Dimitrovsky et al., 1998; Thompson,
1997; Tsatsanis, Furst, & Rourke, 1997).
Adults with NVLD often have serious difficulty in the workplace. Their problems
include poor self-concept, mental health problems, difficulty in social relationships, and
terse or curt response styles. Transitions are difficult because these individuals like
routine and find it difficult to take on new responsibilities and assignments. Unable to
reflect on the nature and seriousness of their own problems, they tend to attribute their
failures, as well as their successes, to others, instead of to themselves. Their coping
mechanisms are often misinter reted as emotional or motivational problems
B. Attention Deficit Hyperactivity Disorder (ADHD)
Attention deficit hyperactivity disorder (ADHD) is a common cooccurring
condition for children with learning disabilities. (The terms cooccurring, coexisting, and
comorbidity are used to indicate that a condition occurs along with another condition.)
Research indicates that between 25% and 40% of the children with learning disabilities
have cooccurring ADHD and that between 30% and 65% of the children with ADHD
have cooccurring learning disabilities.
Attention deficit hyperactivity disorder (ADHD) is a condition of the brain that
makes it difficult for children to control their behavior in school and social settings. It is
one of the most common chronic conditions of childhood and affects between 4% and
12% of all school-age children. About three times more boys than girls are diagnosed
with ADHD (American Academy of Pediatrics, 2001).
Inattention refers to the child’s inability to concentrate on a task. Impulsiveness is
the tendency to respond quickly without thinking through the consequences of an action.
Hyperactivity refers to behavior that is described as a constant, driving motor activity in
which a child races from one endeavor or interest to another. Many individuals with
ADHD show problems in each of these areas, but some will have only one or two of
these behaviors (Silver, 2006; Elison, 2006).
Children with ADHD have difficulty staying on task, focusing attention, and
completing their work. Roughly one-half of all children with ADHD have a cooccurring
learning disability. They are easily distracted, rushing from one idea or interest to
another, and they may produce work that is sloppy and carelessly executed. They give the
impression that they are not listening or have not heard what they have been told.
Children with ADHD have attention problems, impulsive behavior, and problems with
hyperactivity. They often display symptoms of age inappropriate behavior (Barkley,
2005; Accardo et al., 2000; Haber, 2000; Lerner, Lowenthal, & Lerner, 1995; Rappley,
2004; Silver, 2004, 2006). Children with ADHD are known to turn off some peers during
their first contact because of their difficulty in joining other children in a social
interaction (Hund and Landau, 2012). In addition, students with ADHD often have
deficits in academic achievement (Scheffler, et al., 2009).
ADHD affects children in all environments and in all ethnic and language groups,
disrupting the child’s home life, education, behavior, and social life. At home, children
with ADHD have difficulty accommodating home routines and parental expectations.
They may resist going to bed, refuse to eat, or break toys during play. At school, they
have trouble completing their class work, often missing valuable information because of
their attention problems. They speak aloud out of turn and find themselves in trouble for
their behavior. Their social interactions may be undermined by their impulsivity,
hyperactivity, and inattention, which hamper their ability to make and keep friends
(Lavoie, 2006). In terms of gender, more boys than girls are diagnosed with ADHD.
However, research suggests that the prevalence rate is equal for boys and girls, but boys
are more likely to be identified. This gender difference may due to the fact that boys are
more likely to engage in aggressive behavior.
An assessment is a necessary step before decisions can be made about eligibility
for services and treatment. The diagnosis of ADHD is usually based on the observation of
behaviors. The criteria for these behaviors are described in the DSM-5 (American
Psychiatric Association, 2013). Mayes and colleagues (2012) found that core ADHD
symptoms are part of autism spectrum disorder and a thorough evaluation is critical to
determine the nature of the student’s disability. Those authors recommend that children
who are being evaluated for ADHD should be screened for autism spectrum disorders
(Mayes et al., 2012).
Rating scales are frequently used assessment measures for students with ADHD
and are based on reports of behavior observed by teachers and parents (Barkley, 2005).
We provide one rating scale that can be used by teachers in Figure 7.2. It is a 24-point
rating scale designed to help teachers identify pupils with learning disabilities in their
classes. Teachers rate the 24 behaviors, from auditory comprehension to motor skills, on
a 5-point scale (with 1 indicating poor behavior; 5, good behavior; and 3, average
behavior). The highest possible score is 120 (5 × 24). In one study, the mean score of the
children classified as normal was 81, and the score of the children identified as having
learning disabilities was 61 (Myklebust & Boshes, 1969).
Children with ADHD may be eligible for special education services under the
category of “other health impaired” in IDEA- 2004. The law describes “other health
impaired,” when applied to children with ADHD, as heightened alertness to
environmental stimuli that results in limited alertness with respect to the educational
environment (U.S. Department of Education, 1999). A child with ADHD may also be
eligible for special education services under other existing categories of special
education, in addition to other health impaired, such as the categories of learning
disabilities or emotional disturbance.
A child with ADHD may be eligible for services under the legislation of Section
504 of the Rehabilitation Act of 1973, even if that child is not eligible for special
education services. Section 504 mandates that any agency receiving federal funds provide
reasonable accommodations for people with disabilities. According to Section 504, if the
child is found to have “a physical or mental impairment that substantially limits a major
life activity,” such as learning, the school must make an individualized determination of
the child’s educational needs, and reasonable accommodations must be provided within
the general education classroom (Section 504 of the Rehabilitation Act).
ADHD is estimated to affect 9.5% of the school-age population (Centers for
Disease Control and Prevention, 2010). In IDEA (2004), the condition of ADHD is
included in the category of other health impaired (OHI). The number of children
identified under the category of other health impaired has increased substantially since
ADHD was included in this category. Since the issuance of the 1991 Clarification of
Policy to address the needs of children with ADHD and the clarification within the
Regulations for Individuals With Disabilities Education Act of 1997, more children with
ADHD are being identified. The number of students identified in the category of other
health impaired increased from 53,165 in 1991 to 489,806 in the year 2008, as shown in
Figure 7.3. The increase in children in the other health impaired category is mostly due to
the inclusion of children with ADHD.
C. Treatments for ADHD
Medication is prescribed for many children with ADHD to improve their attention
and to control their hyperactive behavior. In fact, medication is prescribed in 56% of all
cases of ADHD (Scheffler et al., 2009). The ideal medication should control
hyperactivity, increase attention span, and reduce impulsive and aggressive behavior
without inducing side effects, such as insomnia, loss of appetite, drowsiness, or other
serious toxic effects. Finding the ideal medication for a child is not an easy task, and it
requires close cooperation among physicians, school personnel, and family members
(Silver, 2006; Accardo & Blondis, 2000; Powers, 2000).
Research on ADHD suggests that psychostimulant medications affect the brain of
children with ADHD by increasing the arousal or alertness of the central nervous system
(Hervey et al., 2006; Accardo & Blondis, 2000; Barkley, 2005). It is thought that these
individuals do not produce sufficient neurotransmitters—chemicals within the brain that
transmit messages from one cell to another across a gap, or synapse—and that the
psychostimulants work by stimulating the production of the chemical neurotransmitters
needed to send information from the brain stem to the parts of the brain that deal with
attention. The psychostimulant medications appear to lengthen the children’s attention
spans, control impulsivity, decrease distractibility and motor activity, and improve visual-
motor integration (Barkley, 2005; Powers, 2000; Rappley, 2004). The psychostimulant
medications most frequently prescribed for ADHD are Ritalin, Dexedrine, Concerta,
Adderall, and Vyvanse. The duration of the effects for Ritalin, Dexedrine, and Focalin is
short, 3 to 5 hours. Consequently, unless a second dose is taken during the school day, the
effects of a morning dose of either of these medications will wear off during the course of
the day. The psychostimulants Adderall, Concerta, and Vyvanse are taken in one daily
dosage, and the effects are long lasting, 8 or more hours.
The side effects of stimulant medications include insomnia and loss of appetite,
but these effects are usually transient and diminish as tolerance develops (Barkley, 2005).
For a few children, a more serious side effect of Ritalin is that it can trigger tics or
Tourette’s syndrome. If one of these side effects occurs, the medication must be changed.
A rebound effect sometimes occurs with children on psychostimulants. The child’s
behavior can significantly deteriorate in the late afternoon or evening after a daytime
dose of the stimulant. This wearing off of the medication can cause the child to
temporarily exhibit more impulsivity, distractibility, and hyperactivity than was
previously observed (Barkley, 2005). If this occurs, additional low doses may be needed
in the late afternoon.
The use of psychostimulants for ADHD is associated with rapid improvement in
attentiveness, hyperactivity, impulsivity, scholastic performance, handwriting skills,
family life, and socialization based on objective tests and subjective evaluations by
parents, teachers, and clinicians. In addition, psychostimulant medication appears to help
children with ADHD improve their self-esteem and self-image, and it enables children
with ADHD to express feelings of greater control over themselves and their lives (Silver,
2006; Powers, 2000).
In this section, we look at the neurochemistry of psychostimulant medications,
which are often prescribed for children with ADHD. Individuals with ADHD do not
release enough of the needed chemicals to send information from the brain stem to other
parts of the brain. A deficiency in the production of the neurotransmitters dopamine and
norepinephrine results in decreased stimulation and a consequent dysfunction of the
neural circuits underlying attention.
The brain is a complex information network made up of millions of nerve cells
called neurons. Information moves through the brain as nerve impulses that are
transmitted from cell to cell by neurotransmitters. An impulse travel along the cell body
from a sent neuron to a receiving neuron. A small space, called a synapse, is between the
sending neuron and the receiving neuron. The impulse causes the sending cell to release
chemicals—or neurotransmitters—from tiny sacs located at the synapse between the
sending cell and the receiving cell.
Students who are hyperactive present challenges for classroom teachers. These
students cannot sit in their seats for prolonged periods; they may get up to sharpen their
pencils 12 times during each class. They need to move frequently within the classroom
and be active. They will probably respond to an increase in hands-on activities and
opportunities for movement while engaging in a nonactive activity such as a lecture. As
an example, they may increase their attention by being able to doodle on a piece of paper
or being able to squeeze a fidget toy. Such students may simply pace back and forth
because they cannot sit quietly. One student with ADHD reported that she retained
information that she needed to memorize much better when she was able to write her
notes on small index cards, and that she would go home and pace back and forth as she
read and reread the information on the index cards. Teaching Tips 7.3, “Managing
Hyperactivity,” provides methods for managing hyperactivity in the classroom.
D. Special Education Laws
Many families and educators erroneously take for granted that special education
services have always been available for students with disabilities. This is not the case.
There was a relatively recent time in our history when students with disabilities did not
have the right to go to school—when there was no mandate for special education
services. Children with disabilities were either ignored or excluded from attending public
schools. It was only through the persistence of many dedicated advocates that laws were
passed to provide education for children with disabilities. These advocates can be
credited for working with policymakers to create the mandate for special education.
The important federal laws, regulations, and court cases that pertain to students
with disabilities are discussed in this chapter. However, it is also paramount for teachers
to know the specific laws and regulations that govern special education in their states.
Teachers can find that information through their State Department of Education website
and through their professional organizations.
The first special education law was passed, and it is considered landmark
legislation. The Education for All Handicapped Children’s Education Act gave students
with disabilities the right to a free appropriate public education (FAPE). Prior to the
passage of the first special education law in 1975, children with disabilities were largely
ignored or were excluded from attending public school. This law also required that
schools develop individualized education programs (IEP) to plan for the instruction of
each child identified with a disability. The IEP became the determinant document for
what specific educational programs and related services were needed for that child.
Placement was to be based on a thorough analysis of the child’s levels of performance.
From those levels of performance, the goals and objectives were determined for the child.
The IEP was done yearly, and a thorough reevaluation of the student’s ability and
achievement is conducted every three years.
In 1986, the Education for All Handicapped Children Act was amended with
Early Childhood Amendment (Public Law 99-457). This amendment was significant
because it extended the provisions of the law to young children with disabilities, ages 3
through 5 years of age. Whereas PL 94-142 focused on the individual child with a
disability, this latest set of amendments also focused on family needs and interventions.
Programming for infants and toddlers also became a reality. While not a mandate that
schools must provide services to children birth through 2, states must establish an
interagency coordinating council to determine how services will be provided, and the
coordinating council must specify the statewide system that includes definitions for
children with disabilities who are eligible, individualized family service plans that are
required for young children receiving services, and Child Find that requires that babies
who may be eligible for services are sought, and a lead agency in each state must be
designated.
In 1990, the Education for All Handicapped Children Act was renamed and
became the Individuals with Disabilities Education Act (IDEA) (PL 101-476). Two new
categories of students with disabilities—autism and traumatic brain injury—were added.
This revision also began the era of transition services—to prepare students from school
for the world of work and independent living. The 1990 revision also began the
provisions of assistive technology devices and services.
In 1997, there was a major revision to the IDEA, which became known as the
Individuals with Disabilities Act of 1997 (IDEA-1997). The purpose of the law was to
broaden the 1997 revision. Beyond the purpose of a FAPE emphasizing special education
and related services designed to meet the student’s individual needs, the 1997 revision
added that it also must be designed to prepare students for employment and independent
living, including students who have been suspended or expelled from school. New
protections were also provided for students with behavioral challenges. Although those
protections were maintained in the 1997 revision of the law, they were modified in
IDEA-2004.
In IDEA-1997, many new requirements were added to the IEP process in order to
more thoroughly address the needs of students with disabilities. The IEP feature called
the present levels of performance included how the disability affects the child’s
involvement and progress in the general curriculum. In addition, the IEP team had to
consider the participation of students with disabilities in statewide and local assessment
and the accommodations that were needed for taking those tests. If a student could not
take the statewide and local assessment, the IEP team needed to specify why the
assessment was not appropriate and had to determine an alternate method of assessment.
In IDEA-1997, for the first time, the general education teacher was required to be
a participant in the IEP process. Teachers’ organizations had voiced serious concerns
that, with the movement toward inclusion, they were being expected to provide
significant services and accommodations for students with disabilities within their
classroom yet were not involved in the decision-making process. There was also an
addition in the focus of the IEP process. Previously the IEP team addressed the needs of
the student alone. With IDEA-1997, language was added to support school personnel.
Consequently, if teachers stated, within the IEP process, that they needed additional
training to meet the needs of the student, then the training had to be addressed within the
IEP process (Johns, 1998).
IDEA-1997 also required that the IEP team consider the strengths of the student
and the concerns of the parents for enhancing the education of the child. Additional
requirements in the IEP process included addressing special factors, such as: positive
behavioral interventions when the student’s behavior impeded learning; the language
needs of students with limited English proficiency; instruction in Braille and the use of
Braille unless the IEP team determined otherwise; communication needs of the student;
and the provision of assistive technology devices and services.
In 2004 President George W. Bush signed the most recent version of the law, the
Individuals with Disabilities Education Improvement Act of 2004 (IDEA-2004), or
Public Act 108-446. The Final Regulations for IDEA-2004 were issued by the U.S.
Department of Education in 2006. IDEA-2004, the current revision of the law (as did the
original law) assures that all students with disabilities are provided FAPE based on their
individual needs. IDEA is based on the premise that there is zero rejection (i.e., all
students have the right to go to school regardless of the severity of their disability).
Remember also that in IDEA-97 and continuing in IDEA-2004, a FAPE is
provided to all students—even those students who are suspended or expelled from
school. Students who are suspended from school for any more than 10 days per year must
have access and reach progress in the general curriculum and their IEP services. Also,
they should receive a functional behavioral assessment, behavioral intervention services,
and modifications that are designed to address the behavior violation so that it does not
recur (IDEA-2004, Section 615, 34 C.F.R. 300.530–300.536).
E. Key Provisions of Special Education Law
IEP is a mandate of the IDEA. The IEP is a written statement for a child with a
disability. A student’s IEP is developed, reviewed, and revised in accordance with the
law (IDEA-2004). Educational services and settings for students with disabilities are
based on the individual needs of the student as determined by the IEP team. The IEP is
the hallmark of good planning for students and has been in existence since the inception
of the special education mandate in 1975.
The IEP is developed at least yearly and addresses the educational implications of
the evaluations. The IEP includes the child’s levels of academic achievement, the child’s
functional performance, the annual goals for the child, and the placement and services
where those goals can be met and where the student can receive meaningful benefit.
IDEA-2004 allows 15 states to apply for waivers to do students’ IEPs, with parental
consent, every three years at key transition points for the student. Figure 10.1 shows the
first page of a sample IEP.
There is no such thing as unilateral action in special education. This is a theme
that should govern actions of school personnel in special education. This concept,
however, is very difficult for school personnel to understand because school officials in
general education are able to make unilateral decisions about general education students.
In special education, however, it is the IEP team that determines the needs of the student
and the placement of that student. In the evaluation process, there must be a
multidisciplinary evaluation that is conducted by a group of individuals. No one
individual within the educational system determines that the student has a disability
which adversely impacts educational performance. Instead, a group of individuals must
conduct a variety of assessments and then as a team with the parent determine the
disability of the student, whether that disability results in an adverse effect on educational
performance, and what the needs of the student are. For example, if the student has
speech/language problems, it is critical that an individual who has expertise and
certification or licensure in speech/language be part of the evaluation team.
Assessments and other evaluations are to be tailored to assess specific areas of
educational need and are not merely those that are designed to provide a single general
intelligence quotient (34 C.F.R. 300.304). Assessments are also to be selected and
administered, so as to ensure that if an assessment is administered to a child with
impaired sensory, manual, or speaking skills, the assessment results accurately reflect the
child’s aptitude or achievement level or whatever other factors the test purports to
measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills
(unless those skills are the factors that the test purports to measure) (IDEA Regulations
Section 300.304).
We know that students and their needs change, and therefore IDEA-2004 requires
an evaluation at least every three years or more often as determined by the parent and
school district personnel. Parental consent must be given for the evaluation. A team
meeting is held after the evaluation occurs to review the results of the evaluation with the
parent. No one person is responsible for all components of the evaluation; rather, it is a
multidisciplinary process.
The least restrictive environment (LRE) provisions of the IDEA provide that, to
the maximum extent appropriate, students with disabilities are educated with their peers
without disabilities. The premise of the LRE is that placement decisions about the
student’s educational setting should be based on each student’s individual needs.
IEP teams must consider the student’s level of academic achievement and
functional performance and then develop goals to address the individual needs of the
student. Based on that information, the IEP team must determine where those goals can
be met—in what specific educational setting is the student likely to gain meaningful
benefit? Some educators interpret the LRE feature of the law to mean that students should
always be educated within the general education classroom. Some individuals and
organizations go further, advocating the philosophy of full inclusion.
Actually, the word inclusion does not appear anywhere in the law. The concept of
full inclusion is a philosophy that goes further, proposing that all children, regardless of
the severity of their disability, are to be educated within the general education classroom.
Criteria for determining the LRE were established in the Rachel Holland case. Rachel
Holland was a child with intellectual disabilities and went to school in the Sacramento
Unified School District. Rachel’s parents wanted her to be educated within the regular
classroom setting but the school district believed that it was more appropriate to educate
her in a special education classroom.
A cornerstone of IDEA is the right of the parent or the school district to disagree
with decisions that might be made by the IEP planning team. School districts and parents
all want the same thing for children, but sometimes they may not agree on how to achieve
these goals. There are safeguards to protect the rights of the students. School personnel
and parents are always encouraged to resolve their differences through informal
measures. Under IDEA-2004 mediation is provided. Mediation is a more informal and
less legalistic procedure than going to a due process hearing and requires an impartial
individual, who is not an employee of the school district, to listen to both sides of the
issue and render a decision. Mediation is provided at no cost to the parents. In addition,
IDEA-2004 designates a requirement that prior to a due process hearing, the school
district will convene a meeting with the parents and the relevant member or members of
the IEP team to resolve differences. If informal procedures and mediation still fail to
resolve the issue, then the due process system is provided, and specific procedures are
outlined for it in IDEA-2004 and its accompanying regulations (34 C.F.R. 300.500?
300.518).
According to Section 504, if the child is found to have a physical or mental
impairment that substantially limits a major life activity, such as learning, the school
must make an individualized determination of the child’s educational needs, and
reasonable accommodations must be provided within the general education classroom
(Section 504 of the Rehabilitation Act). Students who are eligible for Section 504 have a
disability, but the disability does not adversely impact educational performance. As an
example, a student with ADHD would be eligible for a Section 504 plan if there is no
adverse effect on educational performance; if there is an adverse effect, however, then the
student would have an IEP. Students who have IEPs have a disability that impacts
educational performance.
F. Other Laws Impacting Students with Disabilities
Educators must not only focus on the laws that govern the rights of students with
disabilities, but they must also be cognizant of how laws governing all students impact on
students with disabilities. The most important law governing all students is No Child Left
Behind (NCLB) Act of 2001, the latest reauthorization of the Elementary and Secondary
Education Act. NCLB resulted in massive changes to the entire field of education,
including special education. School personnel struggle to meet the requirements of
NCLB, which looks at all students and at what level they achieve as compared to their
grade level peers, while at the same time it also addresses the individual needs of the
student as the cornerstone of the IDEA-2004. NCLB focuses on these major
requirements: highly qualified personnel and accountability for results for all students.
What are the implications of NCLB for special education teachers? NCLB
requires that all teachers be highly qualified to teach the students within their classroom.
This law requires that special education teachers not only have certification in special
education, but also are highly qualified in the core academic subjects if they are the sole
provider of that instruction. If the teacher is providing consultation/collaboration to the
classroom teacher regarding appropriate accommodations to the classroom curriculum,
the teacher must possess certification in special education. If the special education
teacher provides the instruction for students who take alternate assessments with alternate
achievement standards, then the teacher must be qualified as an elementary-school
teacher. Each state must establish certification standards for teachers and, therefore, must
establish a mechanism to assure that all teachers are highly qualified for their positions. If
a student in a Title I school is being taught for more than 4 weeks by a teacher who is not
considered highly qualified, then the school district must notify the parents of the student
that the student has a teacher who does not meet the standard.
Special educators have long been responsible for assuring that students with
disabilities gain meaningful benefits as a result of their special education and related
services. Since NCLB, accountability is the expectation for all students. All students must
make adequate yearly progress (AYP) in reading, math, and science. Scores are
disaggregated or separated for specific groups of students—students with disabilities may
be a disaggregated group of students depending upon the number of students that the state
has determined as the minimum size of a disaggregated group. Data is disaggregated for
students by poverty levels, race ethnicities, disabilities, and English-Language Learners
(Office of the Undersecretary of Education, 2002). The data is reported according to each
of these groups separately.
Students must take a state-determined assessment and then each State Department
of Education compiles the results of the tests. With the latest adoption of the Common
Core Standards in the majority of states, schools are revising their tests to measur the
common core. Each state must report the information back to the school district, while
also reporting the school and district results to the public via newspaper and the Internet.
For students with disabilities, the IEP team determines whether the student takes the state
assessment with or without accommodations. If the student takes the test with
accommodations, the IEP team determines the specific accommodations that should
mirror the accommodations made within instruction. No more than 1% of students with
the most significant cognitive disabilities may take an alternate assessment based on
alternate achievement standards.
The U.S. Department of Education is also allowing an additional 2% of students
with disabilities to take a modified assessment based on modified achievement standards.
The 2% subgroup (about 20% of students with disabilities) would be in addition to the
separate 1% group of students (about 10% of students with disabilities), with the most
significant intellectual disabilities who are permitted to take alternate assessments aligned
to alternate achievement standards. Therefore, about 30% of students with disabilities
could take either the alternate assessment based on alternate achievement standards, or a
modified assessment based on modified achievement standards.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the
basis of a disability. Section 504 also provides reasonable accommodations to students
with disabilities and those accommodations are to be determined within the scope of a
Section 504 accommodation plan for the student who has a disability but may not be
eligible for special education.
The ADA Amendments Act of 2008 amended the definition of a disability. The
term disability means a physical or mental impairment that substantially limits one or
more major life activities of the individual. Major life activities include but are not
limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working. An individual meets the requirements of having
an impairment if the individual establishes that he or she has a disability even if the
disability can be corrected. The exception is for a person who has a vision problem that
can be corrected with eyeglasses (ADA Amendments Act of 2008).
Under Section 504, an appropriate education means an education comparable to
the education of other students without disabilities, unlike IDEA that defines an
appropriate education as one that meets the individualized needs of the student. A student
with a disability may be eligible for the provisions of Section 504, yet not eligible for
services under the IDEA. In order for a student to be eligible for services under IDEA,
the student must exhibit a disability that results in an adverse effect on educational
performance. First, the evaluation team determines whether there is a disability. If there is
a disability determination, then the team determines whether there is an adverse effect on
educational performance. If there is not an adverse effect, then the student may need
accommodation for his or her disability and will need an accommodation plan under
Section 504 of the Rehabilitation Act of 1973. If there were an adverse effect, then the
student would need an IEP.
Section 504 provides that the student has the same access as other students such
as physical accessibility to the building and accommodations in instruction and
assessment, so the student has access to the same curriculum and instruction. IDEA
provides that the student’s education be individualized to meet his or her special needs.
School personnel must also be aware of the laws that govern the rights of any
individual who comes in to the school setting. Physical and program accessibility must be
available to all individuals who need access to the school. The Americans with
Disabilities Act (ADA) of 1990 broadened the scope of services to individuals with
disabilities throughout their lifetime and in multiple settings. This legislation prohibits
employers from discriminating against a person with a disability who is able to perform
the essential functions of the job. Employers must make reasonable accommodations for
employees with disabilities unless it would create an undue hardship. The law applies to
businesses that employ 15 or more workers. The law also requires that public
transportation must be accessible and local areas must provide alternative transportation
if persons with disabilities are unable to use the fixed route service. New buildings must
be accessible. Telephone companies must also have relay assistance to telephones for
those who are hard of hearing or have speech impediments (Wood, 1992).
The Family Educational Rights and Privacy Act (FERPA) is a critical law that
protects students’ records. It is important that all educators understand how the records of
each of their students are handled and with whom records can be shared. This law is also
known as the Buckley Amendment and it applies to all educational agencies that receive
funds administered by the U.S. Secretary of Education. Educational records are those that
are specific to the student and are maintained by an educational agency. They may
include handwritten or print materials, computer media, video or audiotape, film,
microfilm and microfiche, and e-mail. Exceptions to those records include records that
are maintained by educational personnel that are not revealed to anyone else—these
records are known as sole possession records. Examples of sole possession include
records created and kept by a law enforcement unit, employment records, medical
records, and alumni records (Allen, 2003).
G. The Court System: Case Law
When laws and regulations are ambiguous on specific issues (and this is the case
in a number of areas), the courts become involved. You have learned earlier that both
parents and school district personnel may go to due process on specific issues. When a
decision is rendered, one party will have been deemed to have “won” the case. The other
party will be dissatisfied and will have to decide whether they wish to appeal the case to a
higher level. Ultimately, a case may move through the system and a very few will go as
far as the U.S. Supreme Court. Relatively speaking, few cases pertaining to special
education have been heard by the Supreme Court. Those cases, however, have become
the law of the land.
In Sturm v. Rocky Hill Board of Education, 43 IDELR 36 (D. Conn. 2005), the
U.S. District Court in Connecticut ruled that the teacher had standing to assert a claim
because Section 504 does extend its protections to those who advocate on behalf of those
individuals with disabilities. The court ruled that individuals with disabilities might need
assistance in vindicating their rights from those individuals who have their own claim to
relief under Section 504 of the Rehabilitation Act (Norlin, 2006). Therefore, the court
ruling was B.
As an important member of the IEP team, the teacher should ask for a new IEP if
he or she believes that the student is not making progress. Within the IEP meeting, the
teacher should present the relevant information to substantiate his or her beliefs that
changes need to be made. If the team does not agree with this information and consensus
is reached that is not in accord with the teacher’s belief, then the teacher has an obligation
to file a minority report. Such a report allows the teacher to voice his or her beliefs about
the needs of the student.
