Jury still out on changes in special ed law

Some changes are good for kids, others are bad for parents


Dorothea Hunter

Marian Casey’s son was diagnosed with a learning disability at age 4, which qualified him under the Individuals with Disabilities Education Act for an individualized program of study and regular evaluations. And the special services helped him so much that last year, at age 10, he was deemed no longer eligible for special services—which, Casey fears, means he now will fall behind his peers.

Casey of Evanston is hoping changes in the federal law that took effect this summer mean her son will once again be eligible for the services he needs to thrive in a public school.

The IDEA federal law was originally passed in 1975 to make sure children with disabilities had access to a free public education. It has been revised numerous times but the most recent 2004 revisions took effect this summer.

The changes in the law are controversial, with experts saying some are for the better while others will make it harder for parents to get the services their learning- or behaviorally-challenged children need.

"The 2004 reauthorization in many ways embodies an effort to lower the bar in what schools are expected to do for kids with disabilities," says Matthew Cohen, a special-education attorney based in Chicago. "But because of ambiguous language there are some aspects of the law that inadvertently raise the bar."

All in the details

The cornerstone of the law is that each child has a right to an individualized education program, or IEP. Much of the law is focused on the rules and regulations governing IEPs, such as how a child’s program can be adjusted.

One change in the law, which Cohen sees as a change for the worse, is that parents now have the right to refuse special education services for their children—even if the school recommends it. He worries that parents might refuse because they believe their child will be stigmatized. But, Cohen says, if a child truly has special needs, those needs should be served to ensure the child’s academic progress.

Another negative is the elimination of short-term objectives, he says, which makes it harder to track a child’s progress.

In addition, schools can now informally amend IEPs by obtaining a parent’s permission over the telephone. He fears that will result in confusion and add potential abuse by school systems.

Cohen says he does see three positive changes:

 The scope of the IEP has been expanded to include developmental and behavioral disorders as well as learning disabilities.

 Schools now are held accountable for incorporating new research findings into IEPs rather than continuing to do things the way they always have done them.

 The evaluation process for children 16 years and older now include long-term goals, such as college planning.

The new law also makes it tougher for parents to disagree with the terms of their child’s IEP, the so-called "due process" clause of the law. The parents’ request must be extensively detailed, or the school can decide to reject it. If the request is accepted, the first step is an initial resolution process. If that fails to resolve the issue, the dispute goes to a hearing held at the school. If the hearing results in a ruling that the IEP is appropriate, the parents can be forced to pay the cost of the hearing.

The provisions, says Cohen, can be potentially detrimental because it "could make parents less willing to go request a hearing."

Hazel Adams, who has three children with special needs, however, sees the changes as positive.

"Due process is a very expensive, but necessary, protection for parent and student," says Adams, education policy coordinator for Access Living, a Chicago-based center for people with disabilities. "But there are some issues that don’t have to go fully to that level and can be resolved at the local level, so this forces the parents and students and school representatives to come together and meet to see if things can be resolved at the local level, and this is a positive thing."

Who qualifies?

Perhaps the most hotly debated area of change is in the criteria for determining whether a child has a learning disability that qualifies for special services. In the past, a comparison was made between a child’s IQ and academic performance. Educators would look to see if there was a discrepancy between intellect and achievement.

"The new act considers if the child responds to therapeutic intervention," says Charles Fox, a Chicago-based special-education attorney.

"It has never been in the law before. People are really trying to figure out what it means."

Cohen, too, sees this as an area of potential concern. "The judgment on this is much more subjective," he says. "Some kids may find it easier to get help and some will find it harder to get help. It will make the process of diagnosing learning disabilities less accurate than before."

But Casey, who took her son out of public school because she was afraid he would fall behind without the extra help, is pleased with this change. She believes that if she decided to keep her son in public school, she could request a re-evaluation.

She is confident that under these new provisions, her son would once again qualify for special services.

Taking the next step

Over the past few months, both the federal and state government have held meetings about how the new law should be implemented. Funding, in particular, is a big concern.

"There have been several austerity controls being put in place nationally, and every state is dealing with the same issues [such as] how to increase achievement if funding is not increasing," Adams says.

When the law was first passed in 1975, Congress had promised it would pay 40 percent of the total cost of special education. Cohen says, however, it has never provided more than 16 percent, leaving the rest for state and local governments to cover.

When it passed the 2005 reauthorization of the law, Congress expressed interest in raising funding to the 40 percent over the next five years, which would mean billions to each state. But, Cohen says, there is a loophole. "[It] was that the 40 percent goal would be reached only to the extent that the government had the money to pay for the increases and in fact, even in this first year of funding, they have provided dramatically less funding than they had promised," he says.

Regardless of the lack of federal funding, Illinois is doing well.

"The state has been able to subsidize specialized training, assistive technology and, for 2006, an electronic IEP, thus saving districts hundreds of thousands of dollars in duplication of these efforts," says Christopher Koch, assistant superintendent for special education with the Illinois State Board of Education. "The federal government has been responsive to concerns expressed by the public by offering additional flexibility to states and districts."

Adams agrees that Illinois—Chicago in particular—is progressing smoothly. "You have to make the best out of the situation, and I think Chicago is doing a very good job. We’re on an upward tick. Even though there are some challenges, they are making improvements."

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