2006 Fourth Annual Conference on Health, Disability, and the Law

Individuals with Disabilities Education Act 2004: What the Changes Mean for Indiana's Children

The 4th Annual Conference on Health, Disability and the Law, Individuals with Disabilities Education Act 2004: What the Changes Mean for Indiana's Children, was held on June 9, 2006 at the IU School of Law. The conference featured keynote speaker, Reed Martin, JD, who presented Legislative Changes in IDEIA, 2004: What is the Impact on Children?

Reed Martin, JD

Following a brief background and historical overview of federal laws that affect special education students, Dr. Martin discussed how reauthorization of IDEA as IDEIA 2004, Individuals with Disabilities Education Improvement Act of 2004, has changed the face of education for children with disabilities and what its impact has been and will be on children with disabilities in American schools.

Prior to IDEIA 2004, the IEP requirements included the presence of a school employee with the authority to commit resources of the school district to implement the IEP. This requirement has been deleted from IDEIA 2004.

Other changes include:

1) some members of the IEP team may submit information in writing, which means that the parent cannot interact with them at the IEP meeting;

2) after the IEP meeting, the parents and school personnel may modify the IEP, but there is no statutory requirement that the parents be given a copy of the modified IEP; and

3) IDEIA 2004 allows "alternative means of meeting participation" such as video conferences and conference calls, which leaves it open for parents to audiotape or videotape the meeting under IDEIA 2004.

Dr. Martin also discussed how IDEIA 2004 now requires that the Prior Written Notice be written at the IEP meeting, with the parents in attendance, and that the parents can leave the meeting with a written copy. The school district cannot take any action pursuant to the new or revised IEP until the parent has received the Prior Written Notice as it was written at the IEP meeting.

Private school options are changed in IDEIA 2004 and are very complicated. Dr. Martin suggested that parents seek help from an advocacy service, and he also noted that some private school options will be under the ADA Title III, which is a very strong and pro-student statute.

IDEIA 2004 makes it less clear when Transition Planning under the IDEIA, Section 504, and the ADA will begin and how far it will continue. In fact, under the IDEIA 2004 at 20 U.S.C. 1414(d)(1)(A)(I)(VIII), it appears that Transition Planning may be delayed until it is almost an afterthought. Dr. Martin advised that, if your child is having trouble with Transition Planning, make sure that it is being addressed not just under the IDEIA but also that it includes rights under Section 504 and the ADA.

One of the strongest changes in IDEIA 2004 concerns Mediation Resolution and Due Process Hearings. The law has been re-written to encourage Mediation prior to filing for a Due Process Hearing and to protect schools in the event that a Due Process Hearing is filed. There is a 2-year statute of limitations on filing, which means that the violation the parent is complaining about must not have occurred more than 2 years before the parent became aware of, or should have known of, the basis for the complaint. These changes are so important that parents or school personnel should read completely the statute and regulations that address Mediation and Resolution. Parents should request in writing a copy of the rules that govern this part of the law. Dr. Martin suggested that parents consult a protection and advocacy agency and a lawyer for help in these matters, and he strongly suggested that parents make every effort to resolve disputes using Mediation rather than a Due Process Hearing, primarily because with IDEIA 2004 the school district can sue parents to recover costs, if the parents lose their case.

Dr. Martin concluded his presentation with a discussion of the ten Advocacy Strategies for Successful Results in Title IX and Title VI complaints. (click here for a downloadable .pdf of Dr. Martin's notes and click here for a downloadable .pdf of the ten Strategies)

Kevin McDowell, JD

Kevin McDowell, J.D., General Council for the Indiana Department of Education presented Indiana Special Education after Reauthorization, which will hopefully be passed by the Indiana Legislature in Fall 2006 (this is now slated for Fall 2007). Salient points of his presentation included:

1) Assistive Technology Device excludes "medical device that is surgically implanted", thus protecting school districts from having to pay for cochlear implants and other surgical implants that might benefit a child's ability to learn;

2) The definition of "highly qualified" as it relates to the best teacher to teach a child with special needs has not yet been clarified;

3) Related Service specifically includes "school nurse services", excludes medical devices surgically implanted, and adds interpreting services;

4) Specific Learning Disability does not require "severe discrepancy" to determine eligibility for services (Do not use the 18 point discrepancy list anymore!) - instead, the school may use process to determine whether a child responds to scientific, research-based intervention;

5) Labels affirms that IDEIA does not require a child to be "labeled", i.e., giving the child's disability a specific label is not important in terms of the IEP; however, it remains important in filing with the state for reimbursement;

6) Private School Children designates as the responsible public school district the one in which the private school is located;

7) Mandatory Medication states that school attendance cannot be predicated on a child's being described a legend drug.

Dr. McDowell reiterated Dr. Martin's recommendation to attempt Mediation before filing a Due Process Hearing, noting that if parents go to court, it is best that the plea be comprehensive, using IDEIA, Section 504, and ADA, and stating that it is much more difficult to make a procedural case than it is to make a substantive case. Dr. McDowell also discussed the 10 strategies for successful Title IX and VI complaints (click here for a .pdf of the ten Strategies - NOTE: same document as linked above in notes of Dr. Reed Martin's address) and concluded by discussing changes in consent for services, IEPs, and identification of "At No Cost". (Click here for a .pdf of Dr. McDowell's brief, which discusses the 30 changes that he foresees as a result of reauthorization of IDEIA 2004.)

Lunchtime offered a deli boxed lunch with brief presentations about Resources in Indiana from Rebecca Kirby of the Indiana Parent Information Network (now ASK, About Special Kids) and Scott Carson of IN*Source.

Rebecca Kirby

Scott Carson

This was also a good time to network with fellow specialists and visit the exhibitors.

IN*Source

IPIN (Indiana Parent Information Network) (now ASK)

Riley Hospital Community Education and Child Advocacy Department

Indiana Protection and Advocacy Services

John Rau, M.D.

from the Riley Child Development Center. Dr. Rau spoke about the Riley Child Development LEND (Leadership Education in Neurodevelopmental and Related Disabilities) program. Important information noted by Dr. Rau included the fact that LEND programs are now required to collaborate with state Special Education Programs to enhance the experience for trainees in the Interdisciplinary Training Program. The three team members in this partnership are Healthcare, Law, and Education. These teams must interface with each other to provide the greatest benefit to students. While there are barriers to partnerships, such as separate funding streams, varying professional preparation and licensure, diverse cultures and traditions, and a deficit of visionary leadership, the incentives to partnerships, such as amplification of effort, leveraging of resources, and improved health and learning for students, far outweigh the barriers. Dr. Rau provided a history of IDEA and cited the following accomplishments of IDEA:

1) most children with disabilities are now being educated in their neighborhood schools in mainstreamed classrooms;

2) high school graduation rates and employment rates among youth with disabilities have increased dramatically; and

3) post-secondary enrollments among individuals with disabilities receiving IDEA services have also sharply increased.

As for Indiana, enrollment is currently on a slow rise, after peaking in the 1970s and dropping to remain steady throughout the 1980s and 1990s. The number of minority students is rising with a dramatic increase in limited English speaking students, while the number of minority teachers is dropping. And, while teacher's salaries have increased steadily over the last 30 years, their purchasing power has remained about the same. Dr. Rau concluded by citing the number of students and percent incidence out of total student enrollment of students with disabilities in Indiana (about 21% altogether, with Communication Disorder being the largest group). His parting comment regarding funding was a real eye-opener, citing a figure from Dr. Martin's website , which indicates that in 2004, Indiana returned $1,485,081 of federal education funds.

Next on this panel was Phyllis Lewis, R.N., Coordinator of Health Services, Indiana Department of Education,

Phyllis Lewis, R.N.

who discussed the role of the school health nurse and the status of the school health program as a related service. She strongly encouraged educators, parents, administrators, and other professionals involved in the development and administration of disability services for students to include the school health nurse. Even though the student might not require special health services, it is still beneficial for the school health nurse to be apprised of and involved in planning and administration of services for children with disabilities. She cited research that children are much more likely to be able to remain at school throughout the school day when there is a school nurse present in the building.

Mrs. Lewis also discussed the need for schools to re-evaluate "no nit" policies with regard to treatment of pediculosis (cf. www.headlice.org ), seeking to educate parents about pediculosis treatment (non-harmful, pesticide-free methods) and prevention (cleanliness) and involving social services when a child continues to present with this contagious condition. (Click here for a .pdf of Mrs. Lewis's handout.)

The final speaker on this panel was Lisa Kovacs, Parent Liaison for IPIN

Lisa Kovacs, Parent Liaison

and the mother of twin sons with special needs. Mrs.Kovacs described the births of her twins and identified the conditions under which her children received early childhood intervention services under First Steps. Mrs. Kovacs came to realize that one of her sons required services that the school corporation did not have the resources to provide.

Rather than giving in to a system that could not provide what her son needed, Mrs. Kovacs utilized Negotiation Resolution to convince the school authorities that her son required specialized auditory services that were outside the training of their preschool specialists. Mrs. Kovacs was ultimately able to enroll her son in a school program that offered her son the auditory training that he needed. In consequence, her son was able to develop language and is now functioning above grade level in language. Mrs. Kovac's advice to everyone present was to follow your instincts, do your research, utilize all resources at your disposal, and never give up!

The second panel concerned Section 504 and the ADA: Relevant Issues for Children in the School System and was headed by Gaylon Nettles, JD, MSW,

Gaylon Nettles, JD, MSW

who presented and provided to participants, hot off the press, the "Children's Social, Emotional & Behavioral Health Plan" (73 page report) as required by Senate Enrolled Act 529/ Indiana Code 20-19-5. This research-based, evidentiary document was just submitted on June 1, 2006 and is quite extensive. (To download a .pdf of the document, click here. ) Dr. Nettles offered a range of suggestions and advice and fielded questions about "the bully law", Judge Payne's new role as Director of the Department of Children's Services for the Daniel's administration, and Medicare reimbursement to schools.

Reed Martin, JD

Dr. Reed Martin also participated on this panel and discussed the importance of Self-evaluation, Needs Assessment and a Transition Plan by each school corporation. Dr. Martin indicated that, while ADA and Section 504 of the Rehabilitation Act require completion of these self-reports, they are often ignored. He strongly recommended that parents and school personnel ask their school corporation for a copy of these reports and, in the event that they have never been conducted, request that the agency fulfill this requirement to be in compliance with Section 504 and the ADA.

Sandy Muncy, IN*Source Region 14 Parent Resource,

Sandy Muncy, Parent Resource

who is the mother of a teenage daughter with severe seizure disorder, concluded the panel and the conference, by talking about the importance of seeking out resources and help when one is the parent of a child with disabilities. It is often overwhelming just to provide care for one's child. Add to that the need to provide the child with an education and appropriate services, and the parent can easily become overwhelmed and experience feelings of hopelessness and inability to do what is best for his or her child. Mrs. Muncy concluded by offering some community resource ideas such as IN*Source, IPIN (now ASK), IPAS, the Riley Hospital Community Education and Child Advocacy Program, the Indiana Department of Education Division of Exceptional Learners, and the child's school.

For more information:

About Special Kids (formerly Indiana Parent Information Network)

Special Education Law and Advocacy Strategies

Photographs by Moriarty Media

Article submitted by Lynn A. Dunnagan