Enforcement of the Rights of Students with Special Educational Needs
Complaints received by our office show that students with disabilities and their parents are perhaps the most vulnerable participants in education. In many cases, the sources of parental vulnerability is the absence of information and the fact that as their children are different even from them, they require help in raising them.
For people who have responsibilities in public education, the restriction of the learning abilities of students is a simple fact that they need to take into account while performing their job. However, we must not forget that for parents, the diminished capability of a child is a problem to be dealt with. No parents can be blamed for having difficulty accepting that their child is different from others, particularly in cases when outsiders-teachers, doctors, therapeutic teachers-confront them with this fact. On the other hand it is important that we see clearly regarding the fact that starting from the moment the disability or developmental disorder is diagnosed, the independence of parental decisions ceases with respect to several public education issues-e.g. free choice of educational institution, choice of home schooling . The persons working in public education should strive, by all possible means, to make parents accept that the restrictions on parental rights and the stipulation of cooperation requirements happen in the child/student's favour and not against the parent. In accordance with this, our office directs particular attention and special care to complaints and requests from and regarding students with special education need san their parents.
As of 2003, the Public Education Act no longer uses the terms disabled child, disabled student or other disabled children and students, but rather assigns the term students and children with special needs to children and students who, in order to ensure their development, require services different from the average. The Act lists all disabilities and developmental disorders which might form the basis of the determination of special educational needs. Students or children with special needs are those who, based on the opinion of the expert and rehabilitation committee, has physical, sensory, intellectual or speech disability, or in the case of the simultaneous occurrence of several disabilities has multiple disabilities; or due to intellectual development disorders has permanent and severe difficulties in the learning process (e.g. dyslexia, dysgraphia, dyscalculia, mutism, pathological hyperkinetic or pathological activity disorder). The listing of disabilities in the Act is purely exemplary; the need for special education can be determined for disorders not listed therein as well.
Paragraph (1) of Article 30 of the Public Education Act states that children and students with special needs have the right to receive-within the framework of special care-educational, special educational and conductive educational care appropriate for their state starting from the time of the establishment of their disability. In accordance with the content of the opinions of the expert and rehabilitation committees, special care must be ensured within the framework of early development and care, kindergarten education, school education and preparatory sessions.
The above regulation clarifies the dual role of expert committees. First, the right to a specific care is established with the issuing of the professional opinion by the expert committee, which means that without an expert opinion, students can not receive special care. Secondly, based on special expertise and information available to them, the expert committees make recommendations for those specific forms of provision which serve the development of the child/student.
The most important goal of the examination is to determine or exclude that the student suffers from disability and to draw up a recommendation concerning the most appropriate educational method with respect to the student's development. Apart from this, the expert recommendation guides the parent, the teacher and the head of the institution in terms of other issues as well by taking a position in questions such as the educational methods that should be applied, exemption from certain subjects or subject parts, or home schooling.
Therefore, the participation of the expert committee is important not just because they can help the parent in choosing a suitable institution, but also because legally binding expert opinions concerning the parent, the student and the institutions in cases governed by the Public Education Act can only be issued by the bodies specified in relevant legal regulations and by following the procedural rules therein. It is our position that participation in this examination is a fundamental condition of the enforcement of a child's right to special care. The cooperation between the parent and the expert committee can effectively help student development and catching up to other students.
If the parent does not agree with the expert opinion, he is not obligated to sign this report and as legal remedy can turn to the notary territorially competent according to the child's place of residence. If the parent does not agree with the content of the expert opinion, then the expert committee notifies the notary. The notary makes the decision regarding compulsory school attendance within the framework of state administrational proceedings.
We feel it is a fundamental problem that the expert committee does not notify the parents in each case about the possibilities of legal remedy, even though this is a compulsory part of the expert opinion. At the same time parents, if they do not accept the contents of the expert opinion of the committee, in many cases do not apply the mechanisms for legal remedy set out by the statutes, but have their children admitted to schools different from the schools recommended in the expert opinion. In many cases unfortunately this happens with the approval of the school admitting the child. However, it is important to mention that the head of the teaching institution designated in the expert opinion is entitled to initiate state administration proceedings if a child is not enrolled to the institution designated by the report.
In many cases parents informed us that the child was sent by the school to be examined by the expert committee. (K-OJOG-640/2004.) Decree No. 14/1994 of the Ministry of Culture and Public Education on teaching obligations and professional teaching services emphasises that expert committee proceedings are initiated at the parents' request or with their approval. If the public education institution or the family protection institution designated in the decree feel that the expert examination of the child or student is necessary, then they call the parents in and recommend participating in the examination while showing them the reasons for the recommendation. At the same time they are required to inform the parents about the possible consequences of this examination and parents' rights concerning the examination and its results. In such cases parents' approval is necessary to launch the proceeding.
An exception to the necessity of parental approval is stated by Paragraph (4) of Article 30 of the Public Education Act, in accordance with which in the child's interest the notary may obligate the parent to appear at the expert examination, and to enrol the child at the appropriate educational institution. Another restriction in connection with the launching and conducting of expert committee proceedings is Article 18 of Decree No. 14/1994 (VI. 24.) of the Ministry of Culture and Public Education, in accordance with which the family protection institution can launch state administration proceedings if the parent does not agree with the necessity of the expert examination. The expert committee itself may also initiate proceedings if parents fail to attend the examination after repeated instructions to do so, or if they do not cooperate in this examination, if they do not agree with the content or forwarding of the expert opinion or if they do not sign the request.
According to Paragraph (1) of Article 12 of Decree No. 14/1994 (VI. 24.) of the Ministry of Culture and Public Education, at any time parents can initiate a child's expert examination.
The complaints clearly show that in many cases the expert committees themselves are unclear on the compulsory ingredients of the expert opinion. There have been instances where the expert committee did not want to prepare a written expert opinion, but the most frequently occurring problem is the failure to give information regarding the designated institution or the possibilities of legal remedy.
| A parent came to us because the expert committee refused to give a written professional opinion to her child with special needs, referring to the fact that it is the parent who first needs to find the teaching institution that would admit the child. We have informed the parent about the compulsory ingredients of the expert opinion, and made sure she understood that based on relevant statutes it is the obligation of the expert and rehabilitation committee to prepare a written professional opinion, which must contain a recommendation as to a designated educational institution. (K-OJOG-447/2004.)
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The notary, chief notary of the municipality maintaining the public education institution is obligated to inform the competent expert and rehabilitation committee on a regular basis about which institutions meet the desired requirements. The committee, based on the data sent, prepares a register of the institutions which participate in the special care of children and students; and informs parents present at the examination about the possibilities which allow the child to meet school attendance and educational requirements.
On several occasions we encountered the problem that the expert committee was unable to find an appropriate educational institute for the child, because the institutional register available did not contain one. If the institutional register does not contain an institution that could ensure education suited for the child's special education needs , then pursuant to Paragraph (4) of Article 14 of Decree No. 14/1994 (VI. 24.) of the Ministry of Culture and Public Education the expert and rehabilitation committees ends its expert opinion to the mayor of the settlement, city, Budapest district municipality or city municipality with county rights territorially competent according to the child/student's place of study, or if there is no such location then his or her place of residence. The mayor takes the necessary steps to make the appropriate educational institution available, and if necessary calls upon the county notary to ensure that the necessary special education teacher or other experts are available from the travelling expert network. Within thirty days the mayor informs the expert and rehabilitation committee about the measure taken.
If the expert opinion contains a school maintained by a foundation, then lawfully the parent is entitled to choose an institution the maintainer of which is not the municipality or another state body. However, in accordance with the provisions of the Public Education Act, such institutions may assign payment requirements to the establishment and maintenance of student legal status. In such cases parents may discover contradiction between the tuition payment requirement and the right to free primary school education.
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A parent came to our office because his child with special education needs did not receive aid from the municipality to pay for the tuition at the foundation maintained school. In his petition, the parent informed us that schools in his area of residence are not adequately equipped to care for the child, and this fact was confirmed in writing by the institutions in question. The municipality has no jurisdiction over foundation.-maintained educational institutions, and the law does not require that municipalities support such tuition payment requirements.. We informed the parent that the municipality is obligated to maintain an institution appropriate for the state of the child and which is able to provide care for said child. In his case this probably did not happen, as the parent most probably requested that the foundation.-maintained school be designated in the expert opinion as the appropriate school, and therefore the fact that the child is not provided for in other schools was never established. In such cases the municipality is not in violation of rights if it decides to refuse the financing of the child's tuition. We have informed the parent that if in case he feels that the payment of tuition fees at the foundation is a burden that cannot be undertaken in the long-term, and then he is entitled to request the mayor to arrange the child's schooling in his area of residence. (K-OJOG-626/2004.) |
The school designated by the expert committee-if it is not a ('district') school providing compulsory admission-can only refuse the admission of the student due to the absence of vacancies. In such cases, pursuant to Paragraph (5) of Article 30 of the Public Education Act, the institution providing the expert opinion attempts to find another educational institution equipped with the human and physical resources necessary for the provision of special care and education. If the placement of the child/student still can not be solved, then the institution providing the expert opinion determines how the child/student can participate in training and education, and puts the child/student on a waiting list until his or her admission is resolved.
Many parents complain that in spite of the fact that schools collect increased capitation grants due after children with special needs, these children fail to get the appropriate care. Pursuant to Act CXVI of 2003 on the 2004 Budget of the Republic of Hungary, local municipalities-in kindergartens or schools maintained by them-can collect increased capitation grants after children participating in therapeutic (conductive) education based on the professional opinion of the competent expert and rehabilitation committee, but only if the preparatory education specified in said professional report can be provided to children.
The Public Education Act ensures that students with special educational needs integrated into education have their knowledge assessed in accordance with their abilities through the system of exemptions from the compulsory lesson activities and exemptions from certain subjects or subject parts. The determination of differences in subject requirements is within sphere of authority of the principal. The Public Education Act has established two different legal institutions with respect to the sphere of authority of the principal.
One of the possibilities, that is not exclusively for students with special educational needs, is exemption from participation in compulsory lesson activities. This request should be submitted to the principal by the student. Regarding this issue, the principal can consider whether the personal abilities, the disability and special situation of the student justify this request. The students exempted from participation in compulsory lesson activities must give account of their knowledge at a time determined by the principal and in the way determined by the teaching staff.
The other possibility is exemption from evaluation and assessment in certain subjects and subject parts. This is also decided on the head of the educational institution, but in contrast with the previous case he or she possesses no scope of judgement. The Public Education Act states that special care must be provided to children with special needs in accordance with the expert opinion of the expert and rehabilitation committees. Therefore, the principal should pass his or her decision in accordance with the content of the expert opinion.
Exemptions from baccalaureate subjects may also be requested. If the student does receive this exemption, then at the time of baccalaureate application the exemptions for certain parts of the examinations must be requested separately.
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We have informed a parent that, based on the professional opinion of the expert and rehabilitation committee or the counsellor centre in accordance with work distribution as set out by the statutes, the school principal may award exemptions from assessment and evaluation in certain subjects or subject parts to students with special needs or to students who are struggling with integration, study or behavioural problems. At the school-leaving examination, the student may choose another subject in the place of the subject he is exempted from. At the school-leaving examination, such students must be provided longer times to prepare, during written examinations they must be allowed to use tools used during their academic studies (typewriter, calculator, etc.), if necessary written examinations may be replaced by oral examinations and the other way around.
Exemptions may only be recommended by the expert committee. At any point parents may request an examination by the expert committee. However, if the aim of the examination is to have the student receive exemption from assessment and evaluation, then Paragraph (3) of Article 13 of Decree No. 14/1994 (VI. 24.) of the Ministry of Culture and Public Education sets out the following requirements:
The examination may be initiated at any time when it becomes necessary, by 31 January in the first six grades of school education or by 31 March of the school year in which the pupil started to study the given subject. Outside this time period-just as in the petitioner's case-the statement of the principal regarding the necessity of examination must also be attached. In order to make a decision, the principal must also obtain the opinions of the head teacher of the student and the teacher teaching the given subject. In the absence of an approval by the school principal, the chairman of the expert and rehabilitation committee or the member of the expert and rehabilitation committee appointed by him/her decides on the necessity of the examination or the refusal of the request. The decision to refuse the examination must be laid down in writing. If the parent disagrees with this content, he or she may initiate a state administration proceeding to overturn the decision with the notary territorially competent according to the child's place of residence, or if there is no such location, place of stay.
If the expert committee concludes the right of the student to allowances, then this should be indicated when handing in applications for the school-leaving examination. In light of the above, we recommended that the parents consult the head of the institution as soon as possible to find out whether he approves the student taking part in the expert examination. (K-OJOG-483/2004.) |
However, in order for the child to be able to take advantage of these special opportunities, the opinion of the expert committee is indispensable.
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A student indicated that his doctor thinks he might be suffering from dyslexia and dysgraphia. The student's question was to do with how he could be exempted from evaluation and assessment in foreign language class. We informed him that the opinion of the expert and rehabilitation committee is necessary in order to receive this exemption. If the expert opinion recommends exemption, then the head of the institution is obligated to grant this exemption. (K-OJOG-922/2004.) |
The opinion of the counsellor centre does not replace the opinion of the expert committee. The statutes assign different roles to the counsellor centre and the expert committee. The examination of students with disorders related to integration, studying and behaviour belongs within the sphere of competence of the counsellor centre, while the establishment of special educational needs and ensuing control examinations are the responsibility of the expert committee. Paragraph (5) of Article 22 of the above quoted Act states that if according to the opinion of the counsellor centre the student might be in need of special education, then they recommend to the parents that they attend the examination of the expert and rehabilitation committee and send the results of their own examinations along with all available documentation to the expert and rehabilitation committee. With respect to the decision of whether a given student has disorders related to integration, studying and behaviour or has special education needs, it is the expert and rehabilitation committee who decide at the request of the counsellor centre. If disputes arise between the expert and rehabilitation committee and the counsellor centre then-at the request of any of the concerned parties-it is the institution of teaching services who makes the decision.
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A petitioner complained that based on the opinion of the counsellor centre the head of the institution did not grant his child exemption from evaluation and assessment. The source of the dispute between the parent and the principal was the exemption from evaluation in the subject of Hungarian grammar. The principal refused this on the grounds that exemption was recommended by the counsellor centre and not the expert committee. Taking the above statutory provisions into account, we have determined that the principal has acted lawfully. (K-OJOG-748/2004) |
However, it is important to mention that the principal is obligated to grant exemption from evaluation and assessment if so recommended by the expert and rehabilitation committee.
A parent asked for our help, because in his son's case the county educational and professional institute has determined a status of "other disability" (dyslexia, dysgraphia, dyscalculia) and on the basis of this determination requested the student be exempted from evaluation and assessment in the subjects of Hungarian grammar, mathematics and foreign languages, and also recommended that the student participate in an intensive speech therapy course. The parent protested that the school is not taking the expert opinion into account, they have not granted the student exemption regarding the subjects indicated and they are not providing sufficient number of classes of speech therapy. According to the parent, the head of the institution failed to inform members of the teaching staff regarding the content of the expert opinion and of the fact that the student is a person with special educational needs. As a result of the above the student encountered continuous failures. The principal informed us that the school does provide integrated education for students with studying difficulties and disorders. In his statement, the principal said that he is aware of the content of the report regarding the student, and has informed teaching staff members about it. According to him, the school provides individual intensive speech therapy twice a week, and furthermore the student has the possibility to participate in remedial classes in mathematics and Hungarian grammar once a week. The principal added that-in spite of the recommendation of the expert opinion-he has not granted the student exemption from evaluation and assessment in the subjects of mathematics and Hungarian grammar. He explained his decision with the fact that the student had a successful previous term with respect to these subjects. Since in accordance with the statutes the principal is obligated to take the content of the expert opinion into account and on the basis of this grant exemption to students' from evaluation and assessment in certain subjects, we have put forth an initiative that he grant this exemption to the student with respect to the two subjects mentioned above. The principal accepted this initiative. (K-OJOG-222/2004.) |
From the point of view of the exemption from evaluation, the date of the issuing of the expert opinion is of great significance.
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A student, in his petition, complained that as a result of an unsuccessful mathematics repeat examination he was forced to repeat the eleventh grade. Following the failed exam the student turned to the expert committee examining competent learning abilities, who recommended that he be exempted from said subject. The principal of the school, in accordance with the expert opinion, granted the exemption. The petitioner inquired whether it would be possible to continue his studies in the twelfth grade instead of the eleventh on the basis of the exemption. We informed him that pursuant to the Public Education Act, a student can take advantage of the benefits provided to him/her starting from the time of the expert committee determining his or her entitlement to these benefits. At the time of the failed exam the student did not have an expert opinion on the basis of which the educational institution could have granted exemption and has not met the requirements necessary to pass the eleventh grade; therefore, the student must repeat his studies in the eleventh grade. (K-OJOG-897/2004.) |
Compulsory school attendance is also different in the case of students/children with special needs: it may be extended until the end of the school year in which the student reaches the age of twenty. However, in the case of children who began their studies in the first grade of primary school, in the 1997/98 academic year or before that, compulsory school attendance lasts until the end of the school year in which the student reaches the age of sixteen. The compulsory school attendance of students with special educational needs can be extended until the end of the school year in which the student reaches the age of eighteen. This can only be taken advantage of on the basis of the professional opinion of the expert committee, and it is the principal who makes a decision regarding the extension of compulsory school attendance on the basis of the professional opinion of the expert committee. (K-OJOG-748/2004.)
Many people inquired about the regulations regarding the home schooling of students with special educational needs. The expert opinion must contain the establishment of the fact that the requirements of compulsory school attendance can only be met by either attending school, or attending a school chosen by the parents and as a home-schooled student; or exclusively as a home-schooled student. If the nature of the special educational need requires it, the expert committee recommends that the student continue his or her studies as a home-schooled student. If this is specified in the expert opinion then the head of the institution has jurisdiction in deciding about home schooling .
In accordance with the provisions of the Public Education Act, in such cases it is the responsibility of the school or the institution providing preparatory training and preparing the expert opinion; to provide the expert specified in the expert opinion. As previously mentioned, in order for the school to collect increased capitation grants from the central budget due after students with special education needs, it must provide the student with the preparatory training specified in the expert opinion of the expert committee. If based on the professional opinion of the expert and rehabilitation committee the student fulfils his or her educational obligations as a home-schooled student, then the school is only entitled to collect increased capitation grants if the number of classes set out by the statutes ensure individual preparation for the student.
The following petition highlights a typical problem. In many cases parents home schooling due to institutional deficiencies.
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In his petition, a parent requested information about what to do as his child has special educational needs and goes to a special school, however, this institution is unable to provide appropriate development sessions to the child. The parent requested information on what jurisdiction the expert and rehabilitation committee examining learning abilities has with respect to the establishment of home schooling or changing schools. We informed the parent that if becoming a home-schooled student becomes necessary as a result of certain special needs, then the expert and rehabilitation committee will make a recommendation in connection with it. The parent, in his letter, also inquired whether the committee can refuse parents' requests for their child to become a home-schooled student. We drew the parent's attention to the fact that the implementation of the decision of the expert opinion can only proceed if he approves the content of the opinion and confirms this approval by signing the document. In case the parent does not agree with the content of the expert opinion, then the parent can request the launching of proceedings or the amendment of the expert opinion from the notary territorially competent according to the child/student's place of residence. (K-OJOG-736/2004.) |
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