CATEGORIES OF DISABILITIES UNDER IDEA LAW
There are 14 specific primary terms included in IDEA under the lead definition of "child with a disability." These federal terms and definitions guide how States define disability and who is eligible for a free appropriate public education under special education law. The definitions of these specific terms from the IDEA regulations are shown beneath each term listed below. Note, in order to fully meet the definition (and eligibility for special education and related services) as a "child with a disability," a child's educational performance must be adversely affected due to the disability.
1. Autism...
...means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three that adversely affects a child’s educational performance. Other characteristics often associated with autism are engaging in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term autism does not apply if the child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in #5 below.
A child who shows the characteristics of autism after age 3 could be diagnosed as having autism if the criteria above are satisfied.
2. Deaf-Blindness...
...means concomitant [simultaneous] hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
3. Deafness...
...means a hearing impairment so severe that a child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child's educational performance.
4. Developmental Delay...
...for children from birth to age three (under IDEA Part C) and children from ages three through nine (under IDEA Part B), the term developmental delay, as defined by each State, means a delay in one or more of the following areas: physical development; cognitive development; communication; social or emotional development; or adaptive [behavioral] development.
5. Emotional Disturbance...
...means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
(a) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(b) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(c) Inappropriate types of behavior or feelings under normal circumstances.
(d) A general pervasive mood of unhappiness or depression.
(e) A tendency to develop physical symptoms or fears associated with personal or school problems.
The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.
6. Hearing Impairment...
...means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but is not included under the definition of "deafness."
7. Mental Retardation...
...means significantly sub average general intellectual functioning, existing concurrently [at the same time] with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.
(Note: Mental Retardation is the term found in the law since passage of the original legislation in 1975. In 2008, the American Association on Intellectual and Developmental Disabilities (AAIDD) (formerly the American Association on Mental Retardation, AAMR) and members of the community recommended use of the term Intellectual Disability. For changes in language to be made in the regulations, Congress must first change it in the legislation. Until such action occurs, we provide the existing language from IDEA.)
8. Multiple Disabilities...
...means concomitant [simultaneous] impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.
9. Orthopedic Impairment...
...means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral amputations, and fractures or burns that cause contractures).
10. Other Health Impairment...
...means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—
(a) is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
(b) Adversely affects a child’s educational performance.
11. Specific Learning Disability...
...means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; of mental retardation; of emotional disturbance; or of environmental, cultural, or economic disadvantage.
12. Speech or Language Impairment...
...means a communication disorder such as stuttering, impaired articulation, language impairment, or a voice impairment that adversely affects a child’s educational performance.
13. Traumatic Brain Injury...
...means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech.
The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
14. Visual Impairment Including Blindness...
...means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.
Considering the Meaning of "Adversely Affects"
You may have noticed that the phrase "adversely affects educational performance" appears in most of the disability definitions. This does not mean, however, that a child must be failing in school to receive special education and related services. According to IDEA, states must make a free appropriate public education available to "any individual child with a disability who needs special education and related services, even if the child has not failed or been retained in a course or grade, and is advancing from grade to grade." [§300.101(c) (1)]
Information provided by the NICHCY (National Dissemination Center for Children with disabilities. And the Office of Special Education Programs of the U. S. Department of Education
This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.
Friday, May 28, 2010
Wednesday, May 19, 2010
Tuesday, May 18, 2010
Extended School Year Services
Extended School Year Services
Parents of children with disabilities must remember that their children may be eligible for Extended School Year Services (ESY). This is a factor that can be considered in whether a Free and Appropriate Education (FAPE) is provided by a school district.
ESY is not summer school. Summer school is to provide remediation to those students who did not obtain passing grades during the regular school year. ESY services are individualized and based upon the child’s specific needs. The purpose of ESY services is to limit the regression of skills that a student may suffer from the extended break over the summer and the recoupment time that would be necessary to bring the student back to the skill level attained prior to the summer break. Washington Administrative Code (WAC) 392-172A-02020: and Oregon Administrative Rules (OAR) 581-015-2065. Also see Code of Federal Regulations (CFR) 300.106.
In an OSEP Policy letter (Given letter) (2003), they stated that some of the factors that states may use in making ESY determinations are: likelihood of regression, slow recoupment of skill and predictive data of professionals familiar with the student.
However, in MM v. School District of Greenville County 303 F. 3d 523 (4th Cir. 2002) the court determined that
“ESY services are only necessary to a FAPE when the benefits of a disabled child gains
During a regular school year will be significantly jeopardized if he is not provided with
An educational program during the summer months” p. 538.
Parents must carefully document their child’s progress during the school year, but additionally must be cognizant of and document any academic, functional or behavioral regression in your child that occurs over the summer break and evaluate how much time is spent the next year recovering the very same skills that your child possessed before the summer break. Losing instruction time and continuing to teach skills already acquired limits a students’ progress.
This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.
Parents of children with disabilities must remember that their children may be eligible for Extended School Year Services (ESY). This is a factor that can be considered in whether a Free and Appropriate Education (FAPE) is provided by a school district.
ESY is not summer school. Summer school is to provide remediation to those students who did not obtain passing grades during the regular school year. ESY services are individualized and based upon the child’s specific needs. The purpose of ESY services is to limit the regression of skills that a student may suffer from the extended break over the summer and the recoupment time that would be necessary to bring the student back to the skill level attained prior to the summer break. Washington Administrative Code (WAC) 392-172A-02020: and Oregon Administrative Rules (OAR) 581-015-2065. Also see Code of Federal Regulations (CFR) 300.106.
In an OSEP Policy letter (Given letter) (2003), they stated that some of the factors that states may use in making ESY determinations are: likelihood of regression, slow recoupment of skill and predictive data of professionals familiar with the student.
However, in MM v. School District of Greenville County 303 F. 3d 523 (4th Cir. 2002) the court determined that
“ESY services are only necessary to a FAPE when the benefits of a disabled child gains
During a regular school year will be significantly jeopardized if he is not provided with
An educational program during the summer months” p. 538.
Parents must carefully document their child’s progress during the school year, but additionally must be cognizant of and document any academic, functional or behavioral regression in your child that occurs over the summer break and evaluate how much time is spent the next year recovering the very same skills that your child possessed before the summer break. Losing instruction time and continuing to teach skills already acquired limits a students’ progress.
This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.
Wednesday, May 5, 2010
Harrassment as form of Disability Discrimination
Harassment on the basis of a disability is a violation of Section 504 of the Rehabilitation Act of (1973). This claim may exist if there was different treatment of an individual, such disparaging remarks that pertained to the individuals' disability. Nordonia Hills School District (Ohio) 25 Idelr233 (OCR, 1996.
Further, a school district may be responsible for peer to peer harassment, if they received notice of the harassment and failed to take prompt and effective action to stop it. Rochester Community Schools (Michigan) 41 IDELR 246 (OCR, 2004).
The U.S. Supreme Court has held that peer to peer harassment cases require a showing of deliberate indifference on the part of the school in order to impose liability.
Davis v. Monroe County Board of Education 526 U.S. 629 (1999). Following this case lower courts have applied different standards for imposing liability on school districts for harassment imposed by peers. Wisconsin has devised a five part test for imposing liability for peer to peer harassment: 1) student is an individual with a disability; 2) that the student was harassed based on his disability; 3) that the harassment was "sufficiently severe or pervasive" that it altered his education and created an abusive environment; 4) that the school knew of the harassment; 5) the school was "deliberately indifferent" to the harassment. Werth v. Board of Directors of the Public School of Milwaukee, 47 IDELR 67 (2007). In M.P. v. Independent School District No. 721, 38 IDELR 262 ( 8th Cir. 2003) the court applied a "bad faith" or "gross misjudgment" standard. The third district has followed a much less strenuous standard as set forth in K.R. v. School District of Philadelphia 48 IDELR 216 (2007). In this case the parents only needed to demonstrate that the child had a disability and qualified to participate in public education and that she was "denied the benefits of " or "subject to discrimination" in his school.
This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.
Further, a school district may be responsible for peer to peer harassment, if they received notice of the harassment and failed to take prompt and effective action to stop it. Rochester Community Schools (Michigan) 41 IDELR 246 (OCR, 2004).
The U.S. Supreme Court has held that peer to peer harassment cases require a showing of deliberate indifference on the part of the school in order to impose liability.
Davis v. Monroe County Board of Education 526 U.S. 629 (1999). Following this case lower courts have applied different standards for imposing liability on school districts for harassment imposed by peers. Wisconsin has devised a five part test for imposing liability for peer to peer harassment: 1) student is an individual with a disability; 2) that the student was harassed based on his disability; 3) that the harassment was "sufficiently severe or pervasive" that it altered his education and created an abusive environment; 4) that the school knew of the harassment; 5) the school was "deliberately indifferent" to the harassment. Werth v. Board of Directors of the Public School of Milwaukee, 47 IDELR 67 (2007). In M.P. v. Independent School District No. 721, 38 IDELR 262 ( 8th Cir. 2003) the court applied a "bad faith" or "gross misjudgment" standard. The third district has followed a much less strenuous standard as set forth in K.R. v. School District of Philadelphia 48 IDELR 216 (2007). In this case the parents only needed to demonstrate that the child had a disability and qualified to participate in public education and that she was "denied the benefits of " or "subject to discrimination" in his school.
This is legal information only, not legal advice!
The above listed information about special education law is for general information only. General legal information is not the same as legal advice -- which requires the application of law to an individual's specific circumstances. Although I believe the information to be accurate and useful, I strongly recommend that you consult a lawyer if you want professional advice regarding your specific legal situation and do not rely solely on the information provided above.
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