Monday, February 9, 2015

Statutes and Rules and Regs, Oh My! A primer on Sources of Law - or, Special Ed. Law in a Nutshell

Bonnie Spiro Schinagle,

Special Education Law primarily involves two statutes; Section 504 of the Rehabilitation Act

of 1973 and the Individuals with Disabilities in Education Act. These are separate pieces of

legislation enacted by the United States Congress. The two statutes differ in a variety of ways

and each confers different rights. This article briefly explains the way each statute operates.

The IDEA is a Federal statute. It protects children from ages 3 through high school graduation

or age 21, whichever comes earlier. The IDEA operates like a contract. In return for Federal

money, states agree to set up systems to ensure compliance with IDEA requirements. The U.S.

Department of Education Office of Special Education Programs oversees the states and has its

own regulations. The IDEA may be found at 42 U.S.C. §1400 et seq. Federal regulations are

found in 34 CFR Part 300 and New York’s Rules and Regulations are found at 8 N.Y.C.R.R.

Part 200. IDEA protection is triggered by a lack of progress, not by failure.

IDEA disputes are resolved through a State-designed administrative process, called a Due

Process proceeding, with a right to appeal to Federal or State court. The first step in a due

process proceeding in New York is the impartial hearing, with a right to appeal to the State

Review Officer (“SRO”). The SRO’s decision can be appealed to federal district court or state

court. the IDEA allows parents to seek either private school tuition reimbursement or substitute

services - compensatory education. The parent must show that the public school did not provide

a free, appropriate public education (FAPE), that the parent’s alternative is “appropriate” and

that the parent attended all meetings and considered all options proposed by the district.

The Rehabilitation Act of 1973, in general, prohibits discrimination against people with

disabilities by publicly funded programs. Section 504 of the Rehabilitation Act of 1973 prohibits

discrimination against qualified people by any school, public or private, that accepts any money

from the Federal government. Qualification for protection under Section 504 is a disability that

impacts a “major life activity;” learning is considered a “major life activity.” The United States

Education Department, Office of Civil Rights issues regulations, are found in 34 CFR parts 100

and 104, and hears complaints about Section 504 violations.

What I’ve written here sounds like a foreign language and it is. It is highly technical information

generally covered in a semester-long law school course called administrative law. However,

nominal familiarity with the vocabulary of each profession strengthens each of us involved in the

community that serves students with unique learning needs.

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