A Legislative History: Special Education Rights for students with brain injury



photo credit: Administration for Children and Families

It is important to identify how children with disabilities, through the years, have lacked the support and services in relationship to special education services in public education. The educational rights and how they have evolved over the past decades for students with brain injury is an important legislative matter that needs to be addressed.

Appropriate educational support is vital to help improve these children’s educational outcomes. We, as a society, need to understand the legislative history and understand those laws that have helped safeguard the educational rights of students with disabilities. A brief synopsis is discussed regarding the legislative acts that have been voted on to help improve the system of education for students with disabilities.  From this overview, how these laws have impacted the education of children with brain injury is discussed.

Section 504 of the Rehabilitation Act

In 1973, Section 504 of the Rehabilitation Act prohibited discrimination of students with disabilities in employment, education and all aspects of the delivery of services, to include program access. This 1973 law required schools to provide accessibility and reasonable accommodations to students with disabilities. The aim of the act was intended to ensure a discrimination free environment within the school system. This act guaranteed that students with brain injury would participate in programs provided by agencies receiving federal funding. Unfortunately, however, most schools and school districts did not follow this federal law and were not providing an appropriate education to students with disabilities.

Education for all Handicapped Children Act

Congress enacted the Education for all Handicapped Children Act, P.L. 94-142, in 1975. This act required that all public schools provide a fair and appropriate public education for all students with disabilities (FAPE) between the ages of 3-21. This law protects students with brain injury in six fundamental ways: 1. the right to be educated with other students, zero reject, 2. access to an appropriate education at taxpayers’ expense, 3. the development of an Individualized Education Plan (IEP) that documents a student’s unique needs, 4. being educated in the least restrictive environment (LRE), 5. the protection of student, parent, or guardian rights to a due process hearing, and 6. parent participation within the education process.

Although brain injury was not specifically categorizes as a disability under this act, those students who were identified as brain injured had still access to special education services under the category of Other Health Impairments (0HI).

Americans with Disabilities Act (ADA)

The rights of individuals with disabilities were further protected in 1990 with the passage of the Americans with Disabilities Act (ADA). This was the world’s first comprehensive civil rights law for people with disabilities. The ADA protects against discrimination at 4 levels : 1. education, 2. public services, 3. public accommodations, and 4. telecommunications. The ADA resembles the 504 of the Rehabilitation Act in both language and objective, although the ADA provides global access by addressing not only non-discrimination in schools, but also non-discrimination in the work place, the community and society at large.


The TBI Act, P.L. 104-166 was finally passed in 1996 after several failed attempts.  The purpose of the act was to amend the public service act in order to provide for the growth, development, and improvement of TBI programs. The main object was to appropriate funding for TBI studies and research. The act authorized funding to the US Department of Health and Human Services (HHS), Health Resources and Service Administration (HRSA) and also provided funding to the Centers for Disease Control and Prevention (CDC) for surveillance, public education, prevention and research.

The TBI act has allowed states to expand their therapeutic service capacity to include information and referral services, service coordination, and rehabilitation services, etc. Its goal is to allow individuals with brain injury to return to school, work, and home to avoid institutionalization.

While it is important to continue to fund research, prevention and education, there are also other issues that need to be addressed in the TBI Act. A missing, but vital element relates to the funding that helps to facilitate appropriate services and supports directly to individuals with TBI.  Rather than exclusively focusing and funding research, the act would benefit from funding that builds service capacity. Services and programs need to be available to the individual, community and public at large. The appropriation of funding that provides TBI services directly to the individual, to include public education, is needed. This will allow service delivery to grow, develop and improve.

Individuals Education Act (IDEA)

By 1997, the expectations for students with disabilities were still falling short. There were still too many students with disabilities dropping out of schools and unable to find jobs. A lot of these drop outs ended up in the Criminal Justice System. Additionally, young girls who dropped out were becoming up unwed mothers at a higher rate than their non-disabled peers.

The Individuals with Disabilities Education Act (IDEA) was a reauthorization of the Education for the Handicapped Act and Education for All Handicapped Children Act (P.L. 94-142). IDEA of 1997 was a triumphant step in getting TBI identified and recognized as a special education category. The signing of IDEA into law in 1997 and its reauthorization in 2004, has opened the door for students with TBI.  This act has provided these children the opportunity to receive the benefits of service coordination within the public school system.

Since the act’s reauthorization, students with disabilities have been provided with the opportunity to become involved in the general education curriculum.  Parents have also become more involved in their child’s eligibility and placement decisions.  IDEA has encouraged greater expectations for these students.

Terminology Issue surrounding IDEA

Unfortunately, lawmakers did not understand the terminology associated with the different types of brain injuries: traumatic, non-traumatic and congenital (i.e. present at birth). Therefore, the language used in IDEA has disenfranchised millions of children with non-traumatic and congenital brain injuries within the special education system. While these children still receive special education support, they are being misidentified and categorized under Other Health Impairment (OHI). This causes the incident rate of brain injury to be distorted.  As a result, special education still categorizes brain injury as a low incident disability. As a result, pre-service teachers do not get adequate training in this area.

Although IDEA was a groundbreaking accomplishment for children/adolescents with TBI, the act is incomplete. A greater understanding is needed.  While the mechanisms of injury may be different, all brain injuries are alike in that they all alter a child’s brain functioning.  A TBI is similar to a non-traumatic brain injury and both types of injuries can be related to congenital brain injury.  It is just the way the injury was acquired (i.e., the mechanisms of injury) that differentiates them.

Despite the differences in how the brain injury is acquired, the resulting impairments are thematically the same, but yet still uniquely different.  Impairments caused by brain injury vary from individual to individual, student to student, and child to child.  However, all injuries alter the functioning of the brain.  This is where the commonality lies.


There are two main distinctions between the 504 of the Rehabilitation Act and IDEA (§613(f), 1997; §1400, 2004].  Section 504 is a civil rights statue that prohibits discrimination of individuals based on handicap, while IDEA is a federal grant program that authorizes federal funds to states to assist in the delivery of special education programs and service coordination.

However, even with the existence of these two federal laws, it can be difficult for children with brain injury to receive and or obtain appropriate services and supports, especially if these children are being misidentified and not accurately categorized as brain injured. Oftentimes services and supports are not available within the school system, or are difficult to coordinate.  These systemic issues stem from three underlying principles: 1. a general misunderstanding of brain injury, 2. a fragmented system of service delivery and 3. financial barriers within the school system.


This blog was cited from the publication:

Kimes, K. (2009). From Service Coordination to Recovery-of-Function Phenomenon: A Paradigmatic Case Study of One School District’s Efforts to Improve Outcomes for Students With Brain Injury. UMI Dissertations Publishing.  (UMI No. 10288).


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