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A GUIDE TO DISABILITY LAW by Dr. William A. Lybarger
It is important that attorneys representing persons with developmental disabilities under the age of 21 years understand the array of federal laws available to them as they advocate for their clients. Collectively, the laws were written to ensure that persons with disabilities were not and are not discriminated against in their daily lives. The laws are diverse and their applicability, to some degree, depends upon the situation the disabled persons find themselves in. I have provided a thumbnail sketch of a few of these laws.
THE INDIVIDUALS WITH DISABILITIES ACT (IDEA) OF 1997 is a federal law that governs all special education services for children in the United States. Under this law children with disabilities are guaranteed a free and appropriate public education. The service delivery vehicle for this law is the Individual Education Plan (IEP).
THE INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT OF 2004 aligns IDEA closely with the No Child Left Behind Act (NCLB).
SECTION 504 of the REHABILITATION ACT OF 1973 is a civil rights statute that requires that schools not discriminate against children with disabilities and provide them with reasonable accommodations. It covers all programs or activities, whether public or private, that receive federal financial assistance. Under section 504, any person who has an impairment that substantially limits a major life activity is considered disabled.
The Americans with Disabilities Act (ADA) requires all educational institutions, other than those operated by religious organizations, to meet the educational needs of children in a non-discriminatory manner. The ADA prohibits the denial of educational services, programs or activities to students with disabilities and prohibits discrimination against all such students.
THE SPECIAL EDUCATION CONSULTANT / EXPERT WITNESS working in tandem with an attorney can use these powerful federal laws to enhance the quality of life of a person with disabilities. Most often the consultant would be knowledgeable in the psychoeducational evaluation process, child development, special education procedures, behavior management techniques and disability law. The following scenarios represent situations where the consultant would work cooperatively with the attorney and family of a person with disabilities to resolve disputes with school systems or public service agencies.
PERSONAL INJURY - This situation could relate to a child being injured in a classroom setting. The focal point of the debate would be whether or not there was adequate planning and supervision by professional or support staff. The consultant would analyze the abilities of the child, the propriety of the IEP and the level of supervision provided to make a Standard of Care determination.
BEHAVIOR MANAGEMENT – In this scenario the issue could be use of physical or mechanical restraint. It is not unusual for the IEP of school age children (3 -21) to have a behavior management component. The consultant would analyze the sociological, psychological and behavioral characteristics of the child to determine if the strength of the intervention matched the acuity of the behavior.
ZERO TOLERANCE – Public schools and higher education agencies are more frequently implementing Zero Tolerance policies related to students exhibiting violent behaviors. Persons with disabilities are more likely to exhibit atypical behaviors that might be construed as violent. Therefore, it is likely that they will be pulled into the Zero Tolerance debate more often than persons with no disability. The consultant can illuminate for the attorney and/or parent how the behavioral characteristics of the child fit the Zero Tolerance policy or decision based on the Zero Tolerance policy and facilitate development of a strategy for rebutting the penalty imposed by the agency, if appropriate.
LOSS OF OPPORTUNITY TO LEARN – The failure of a school system to provide an appropriate education can result in a child who has fewer of the social and vocational skills required to achieve life success. In this situation the consultant would be ask to make a comparison between the disabled person’s actual skill level and the skill level that would have resulted from an appropriate education. That gap would be the foundation for a debate about compensation and/or remediation.
TRANSITION PROGRAMMING FOR PERSONS OVER 18 YEARS OF AGE – It is not unusual for the public school to work cooperatively with an external agency that offers vocational education services. In this scenario a transition IEP would be created that represent the responsibilities of the school and receiving agency. The consultant could assist the parent and attorney by making sure that the transition program offers a curriculum that meets the social, educational and behavioral needs of the disabled person.
A cooperative effort among the family, attorney and consultant often results in the disabled person receiving a more appropriate education and increased life quality.
Disclaimer: Internet Special Education Resources (ISER) provides this information in an effort to help parents find local special education professionals and resources. ISER does not recommend or endorse any particular special education referral source, special educational methodological bias, type of special education professional, or specific special education professional. |
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