By Catherine Michael
Article 7 of the Indiana Administrative Code provides standards, procedures and protections for students with disabilities and is a “lucky number” for attorneys to remember when it comes to clients and their educational needs. This law, and its federal counterpart, the Individuals with Disabilities Education Act, covers the framework for educating students with challenges ranging from attention deficit hyperactivity disorder, math-processing disabilities and autism to cognitive impairment, mental health challenges, communication needs, traumatic brain injury and chronic diseases, to name just a few.
In fact, this law applies to any disability that impairs a student’s ability to learn without special educational assistance. The catch is that enforcement of both Article 7 and IDEA – if the school is not providing an appropriate program or has failed to identify the student – is up to the parent. In other words, neither the state nor federal departments of education actively look for violations. Parents have to act as “private attorneys general” if they believe a school district is not in compliance.
What most lawyers don’t realize is just how far-reaching the protections of Article 7 are when it comes to the educational services that need to be provided to students with special needs. Article 7 provides that every student with an eligible disability is entitled to a “free appropriate public education.” The standard established by federal law (and mirrored by Article 7) means that if a student with a disability needs things like homework reduction, specialized seating, organizational training, a one-on-one aide, books on tape, social and behavioral training, counseling services, a scribe, a homebound program, a residential facility, speech therapy, toileting training, extended school-year services over the summer, occupational therapy, or training for parents or staff on the student’s disability, the school must provide programming tailored to meet the student’s individualized needs.
Article 7 also provides that students with special needs can be served by the public school system until their 22nd birthday. This includes vocational training, life skills and educational services throughout that time. Students also must be educated in their “least restrictive environment.” The law requires that, to the greatest extent possible, students with special needs must be educated with their general education peers. This does not mean that a student who needs reading assistance needs to be in general education reading, but it does mean that in addition to access to a resource room and special reading instruction, the student should have appropriate time with his general education peers in specials like art and music as well as other classes, both with and without assistance.
Article 7, like its federal analogue, also imposes what is known as the “child find” mandate on school districts. Child find requires schools to identify, locate and evaluate students with disabilities – even if the student is not enrolled in public schools. Again, like other provisions in Article 7, child find must be enforced by the parents if they believe the school has not recognized their child’s needs.
Many students are challenged from undiagnosed learning disabilities; mental health disorders like depression, anxiety, or bipolar disorder; other mental health challenges like ADHD; or even more serious conditions, which can go unrecognized by the school system for years. It is not unusual for a case of bullying to involve a child who has been struggling academically and socially in school but who has never been assessed for learning disabilities that have impacted him socially, developmentally and academically. A client who complains that her child has been labeled “lazy” by her teacher for not turning in homework or taking appropriate notes from the board may discover upon testing that the child has struggled with a form of Dyslexia for years. The child who doesn’t listen and who is now on ADHD medication may actually have an auditory processing disorder. Unfortunately, this is not as uncommon as many of us believe, and it is essential as practitioners who may work with clients with minor children that we understand and recognize that in fact there is a duty for schools to evaluate these students and provide services to those who qualify.
When parents believe that their child needs services or that the services which the school is providing are not appropriate or adequate, the parents (pro se or through counsel) can ask for an Article 7 due process hearing before a hearing officer appointed by the Indiana Department of Education. The IDOE appoints a neutral hearing officer to hold an administrative hearing, review records and make a determination as to what the student needs. The IDOE has done an excellent job training hearing officers specifically for this role, making both Article 7 and a user-friendly guide accessible to parents online and trying to ensure parents have a voice in their child’s educational programming. However, as attorneys it is also important that we ensure that our clients understand what the law provides and how to access it if their child is in need.•
Catherine Michael is the chair of the education law division of Hollingsworth & Zivitz P.C. She practices throughout Indiana and is also licensed in Michigan and Texas. Her practice is dedicated to education law with a focus on special educational matters. She can be contacted at [email protected] or at 317-569-2200. The opinions expressed are those of the author.