The Individuals with Disabilities Education Act (IDEA) is a law that makes available a free appropriate public education to eligible children with disabilities throughout the United States and ensures special education and related services to those children.

Those who work with children in the court system should understand the basics from IDEA so that they can support families in accessing crucial educational services and promote a child’s educational stability.

Child Find and FAPE

Among other requirements within the IDEA, schools that receive funding from the federal government (under Title 20) must ensure that students receive a free and appropriate public education (FAPE), identify locate and evaluate children with disabilities (Child Find), create individualized education programs (IEP) for children with disabilities, and ensure that children receive their education in the least restrictive environment (LRE).^[1] The intricacies and complexities of these components have been litigated extensively.^[2]

School districts must identify, locate, and evaluate children within their district who may be in need of a special education.^[3] Child Find is “a continuous process of public awareness activities, screening and evaluation designed to locate, identify, and refer as early as possible all young children with disabilities and their families …” conducted through “Informed Referral Networks,” referrals from doctors, daycares, etc.

Children must receive a free and appropriate public education (FAPE).^[4] FAPE has been interpreted to mean

special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.^[5]

FAPE is met by ensuring the child receives some educational benefit and is a case-by-case determination to be made.^[6] The procedures provided in the Act^[7] must be followed, and the IEP must be “reasonably calculated to enable the child to receive educational benefits.”^[8]

Individualized Education Program

Once a child has been “found” and a determination made that they will need special education services, a team of professionals and the parents^[9] come together to create an IEP.^[10]

The IEP must contain a statement of current levels of functioning, measurable goals, a statement of special education and relative services and aids to be provided including any program modifications or supports for school personnel, an explanation of placement, statements on the appropriateness of the child’s participation in standardized testing, frequency and duration of services, an explanation as to how to measure progress, and after age 14, transition planning must be included.^[11]

The IEP team meets at least annually, but may meet more often if requested or required.^[12] The IEP team consists of the student (if appropriate), regular education teacher(s), school system representative, transition services agency representatives (as age appropriate), parent(s), special education teacher(s), a person who can interpret evaluation results, and others with knowledge or expertise about the child.^[13]

Children must receive their education in the least restrictive environment (LRE) consistent with their needs.^[14] “The IEP team makes two separate determinations: what the child should be learning and where a child should learn. The intersection of those two determinations is that particular child’s least restrictive environment.”^[15]

The IEP team determines what placement is appropriate while trying to maximize the time the student spends with their peers.^[16] The team starts with a presumption that the child should be in regular education, and then sees if services and supplementary aids are available and appropriate to maintain the child’s presence in the classroom. If services are unable to keep a child in regular education, the team evaluates different settings.^[17]

Services that may be provided for a child with an IEP include, but are in no way limited to positive behavioral interventions (selected after a Functional Behavior Assessment, FBA),^[18] Comprehensive School Mental Health (CSMHS) services,^[19] and other related services such as: audiology services, counseling, occupational therapy (OT), orientation and mobility services, physical therapy, psychological services, social work services, speech-language pathology services (speech) and transportation.^[20]

The IEP is (at a minimum) reevaluated annually with a full reevaluation conducted every three years.^[21] During each meeting the team will discuss the goals, the progress made towards reaching the goals, and what is or is not working to help the child reach their IEP goals.^[22]

Manifestation Determination

One crucial function of an IEP is the protection it affords children who act out as a result of their underlying condition.^[23]

If a student has behaviors that impede their learning or the learning of others, the student should have a behavior intervention plan (BIP) as a part of their IEP. If the student’s behaviors result in a removal from their educational placement; then the school must have a manifestation determination to see if the behavior was a result of their disability; and if so the child’s placement cannot be changed without parental agreement.^[24]

A disciplinary change of placement occurs when a disciplinary removal is more than 10 consecutive days (expulsion) or when there has been a pattern of removals. A pattern of removals occurs when the student has been removed more than 10 cumulative days in a single school year and, the student’s behavior is substantially similar.^[25]

In addition other factors including the length of each removal, the time the child has spent removed, and the proximity of each removal are considered. There are strict time limits, notification requirements, assessments, and other requirements for the manifestation determination. A student with special needs can be expelled or suspended from school, but it is much more difficult to do, and the school must continue the child’s IEP, even after the expulsion.^[26]

Conclusion

IDEA outlines a shared responsibility between education and social services for children with disabilities. Knowledge of these regulations clarifies the specific roles and responsibilities of child welfare agencies in providing these services.

A strong understanding of IDEA empowers those who represent children in the court system to act as effective advocates for children, ensuring they receive the academic resources needed for success.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

[1] 20 U.S.C.A. § 1412 (West). These provisions are found in the “Individuals with Disabilities Education Improvement Act” (IDEA). ↩

[2] See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 180, 102 S. Ct. 3034, 3037, 73 L. Ed. 2d 690 (1982). ↩

[3] 20 U.S.C.A. § 1412(a)(3) (West) ↩

[4] 20 U.S.C.A. § 1412 (West) ↩

[5] 20 U.S.C.A. § 1401(18) (emphasis added). Rowley, at 188. ↩

[6] Rowley, at 201-03. ↩

[7] 33 C.F.R. §1415 ↩

[8] Rowley, at 207. ↩

[9] Note: Throughout this paper I use “parent” when the term could mean guardian, foster parent, or some other individual or entity who has legal custody of the child. This is done for consistency and ease of the reader. ↩

[10] 20 U.S.C.A. § 1412 (West); Wis. Stat. § 115.787 ↩

[11] Wis. Stat. § 115.787(2). ↩

[12] Wis. Stat. § 115.787(4). ↩

[13] U.S. Department of Education, A Guide to the Individualized Education Program, July 2000, p. 7. ↩

[14] Wis. Stat. § 115.79. ↩

[15] U.S. Department of Education, Bulletin No. 00.04, Information Update, May 2000. ↩

[16] Wisconsin Department of Public Instruction, Special Education Information Update Bulletin 24.01, March 2024, ↩

[17] Bulletin 00.04, at 3. ↩

[18] 34 C.F.R § 300.324(a)(2)(i); Wisconsin Department of Public Instruction, Special Education Information Update Bulletin 23.01, Sept. 2023. ↩

[19] Wisconsin Department of Public Instruction, Wisconsin School Mental Health Framework. ↩

[20] A Guide to the Individualized Education Program, p. 7. ↩

[21] Wis. Stat. § 115.787(4). ↩

[22] A Guide to the Individualized Education Program, pp. 14-15. ↩

[23] Wisconsin Department of Public Instruction, Disciplinary Protections for Students Under IDEA, Oct. 9, 2018. ↩

[24] Id. at 4 and 7. ↩

[25] Id. at 8 and 9. ↩

[26] Id. at 13, 14-16. ↩