Academic journal article Journal of Law and Education

Who Is Eligible under the Individuals with Disabilities Education Improvement Act?

Academic journal article Journal of Law and Education

Who Is Eligible under the Individuals with Disabilities Education Improvement Act?

Article excerpt

ABSTRACT

Determining who is eligible under the Individuals with Disabilities Education Improvement Act (IDEA) has plagued decision-makers for over three decades, leading to both over- and underidentification of eligible children and the disproportionate identification of minority students as disabled. The statutory requirements for finding a child IDEA-eligible appear straightforward: a child must have an enumerated disability that adversely affects educational performance and by reason thereof the child must need special education. Application of these provisions has proven problematic, however, and the authorities are divided as to what constitutes "educational performance," when is it "adversely affected" by the disability, under what circumstances does a child "need" special education and what is "special education?" This Article explores the diverse interpretations of these terms by courts and hearing and suggests the proper application of each of the IDEA-eligibility requirements. Uniform eligibility determinations cannot be hoped for on a national level, as the definition of many of the key terms are left to the states, but this Article outlines the proper analytical framework for eligibility decisions.

"[T]o determine that a child is handicapped and to place him in a specialized program ... is one of the most important, if not the most important, decision that will ever be made in that person's life."

Senator Robert Stafford, co-sponsor of the Education of All Handicapped Children Act.**

I. INTRODUCTION

The Individuals with Disabilities Education Improvement Act [hereinafter "IDEA"] requires that states provide all "children with disabilities" a free appropriate public education.1 An eligible "child with a disability" is defined as a child

(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . . , orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.2

These apparently simple provisions are in fact among the most complex requirements of IDEA.3

Courts, hearing officers, and eligibility teams often misapply these intricate eligibility requirements, leading to both over-identification and under-identification of IDEA eligible children.4 The over-identification of students for special education, particularly minority students, was a primary focus in the most recent re-authorization of IDEA in 2004.5 The concern is warranted because misplacement into special education stigmatizes students, denies them a high quality education, limits their future opportunities, and takes valuable resources away from truly disabled students.6 On the other hand, under-identification of students for special education, usually of emotionally disturbed children, leaves them unserved and often unable to participate effectively in society.7

The first step to resolving these eligibility problems is for authorities to properly interpret IDEA'S difficult eligibility requirements. This Article explains how courts and hearing officers apply, and misapply, these standards. It also provides authorities a clear roadmap to IDEA's eligibility criteria and the proper analysis for eligibility decisions. To understand the eligibility standards they must be broken down into their root elements. First, an eligible child must be diagnosed with one of the enumerated disabilities.8 Yet not all children with diagnosed disabilities are IDEA eligible.9 A disability is not qualifying and eligibility does not attach, despite a medical diagnosis, unless the disability "adversely affects a child's educational performance."10 Children diagnosed with an enumerated disability that adversely affects educational performance must also "need[] special education and related services" to be IDEA eligible. …

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