Enforcement of the Rights of Students with Special Educational Needs
As in previous years, our Office has received a number of petitions related to the rights of students with special needs this year as well. Our experiences show that students with disabilities and their parents are very easily thrust into a situation of helplessness, when they are entirely unable to exercise the rights that are due to them. Therefore, those who are involved with tasks related to students with disabilities need to take due care to cater for their needs. On the other hand, the role of professionals working with children, students with special needs is important, because 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 private student status .
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 extraordinary services. 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, have a physical, sensory, intellectual or speech disability, or in the case of the simultaneous occurrence of several disabilities have multiple disabilities; or due to intellectual development disorders have permanent and severe learning difficulties (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 cannot receive special care. Secondly, based on special expertise and information available to them, the expert committees make recommendations for those specific forms of services, which serve the development of the child/student.
The most important objective of the inquiry is to determine or exclude that the student suffers from a disability and to draw up a recommendation concerning the most appropriate educational method to ensure 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 establishing an opinion in questions such as the educational methods that should be applied, exemption from certain subjects or parts of subject, or private student status.
Therefore, the participation of the expert committee is important not just because they can help the parent choose 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 abiding by the rules of procedure featured 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.
Therefore, an expert committee must make a decision on how students with special needs can receive the most appropriate education.
A petitioner asked about how a student presumably suffering from dyscalculia can receive the most appropriate education.
We informed the petitioner that according to the provisions of the Public Education Act, students suffering from dyslexia qualify as students with special needs. Article 30 of the same act states that 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. Special care shall be provided pursuant to the provisions of the expert opinion provided by the expert and rehabilitation committees. We advised the petitioner to contact an expert committee as soon as possible, as the committee can provide more information on further arrangements and opportunities. (K-OJOG-335/2006.) |
Students with special needs can only be admitted to institutions that have the personal and material conditions necessary for special education. Therefore, the parent's freedom of choice of schools is limited to those that can cater for the needs of special needs students. Naturally, it is very important for parents to find the best solution for their special needs children.
A mother inquired about the kinds of remedial education her fourth-grader daughter suffering from dysgraphia and dyslexia can receive, and whether it was possible to transfer her to a school that employs special education teachers, and to transfer her daughter to the third grade.
We informed the parent that her daughter is a student with special needs and in accordance with Paragraph (1), Article 30 of the Public Education Act; she is entitled to care that is appropriate for her state. We called her attention Decree No. 14/1994 (VI. 24.) based on which she can request the examination of her daughter by an expert committee. The opinion of the expert committee is necessary for the child to be able to render special services. The committee usually recommends institutions, maybe even home schooling, and the parent is free to choose from these. The parent is not required to sign the expert opinion, in which case he or she may contact the Notary competent at the place of residence of the student. In connection with the second question, we informed The authorization is given by the school principal in the case of students and minor students. Upon the parent's request, repeating of grades shall be authorized in grades one through four. Considering, however, that the little girl has already received her third-grade report card and that the parent did not lodge her request with the school before the beginning of the school year, the girl may not be transferred back to third grade. There is an opportunity, however, to have the girl repeat the fourth grade after her current fourth grade performance is closed in another institution that is more appropriate (K-OJOG-371/2006.) |
If the expert opinion refers the parent to a school maintained by a foundation, then legally the parent has the right 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 require that tuition be paid for the establishment and maintenance of student's student status. In this situation, parents usually think that there is a conflict between this tuition payment requirement and the right to free primary school education.
A parent contacted our office, because his special needs child did not receive aid from the municipality to pay for the tuition at the foundation maintained school the child attended. In his petition, the parent called our attention to the fact that at his place of residence the primary schooling of children with special needs is provided for, but that the child can only receive secondary education that is appropriate for his state, if they pay tuition.
According to the provisions of the Public Education Act, children and students with special needs have the right to receive education appropriate for their state. As to what constitutes appropriate educational care is to be determined by an expert examination. Decree No. 14/1994 (VI. 28) of the Minister of Public Education and Culture states that expert opinions must contain a clause establishing that the student can only attend educational institutions that specifically correspond to his or her disability, institutions that have been established specifically for the treatment of the student's disability, or whether the student can attend majority education with other children.
Pursuant to the referenced statute, the school designated in the expert opinion-a compulsory element thereof-shall be chosen by the parent from the schools recommended by the expert and rehabilitation committee. If the expert opinion contains the child's foundation-maintained school, then the parent chose an institution not maintained by the municipality or another state body completely legally.
Institutions of this sort, however, may require that tuition be paid for the establishment and maintenance of students' student status; and they can freely establish the fee payable for the services of the institution, because pursuant to Article 114 of the Public Education Act services that can be rendered free of charge, such as primary school classes, examinations, etc. only apply to institutions that are maintained by the local municipality or a state body. In institutions of this sort, students can only render certain services if they pay tuition. The act states regarding the payment of tuition for services of this kind that the maintainer has the right to lay down rules according to which the head of the institution can decrease the amount of tuition based on social or other achievement based merits. The municipality has no jurisdiction over foundation-maintained educational institutions, and the law does not require that municipalities support such tuition payment requirements. Therefore, it can be established that the municipality did not violate the law when it decided to only finance the child's tuition partially.
Pursuant to Paragraph (1), Article 70 of Act LXV of 1990 on Local municipalities, county municipalities are obligated to ensure that students living in their jurisdiction have access to secondary school, vocational school training and residence hall services. In accordance with the student's right to special care, the municipality is obligated to maintain an institution that is appropriate for the child's condition. If it is revealed to the expert and rehabilitation committee that there is no institution specializing in the treatment of given learning disability in the jurisdiction of the municipality, and as a result the student cannot be educated in a majority class, pursuant to Paragraph (4), Article 14 of Decree No. 14/1994 (VI. 28.) on Training Obligations and Specialized Pedagogical Services, then it shall notify the mayor of the district municipality. In such a case, the mayor shall take measures to ensure that the appropriate educational institution, group or class is available to the student.
In this 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 has no access to proper care was never established. Nonetheless, if the parent cannot undertake to pay the tuition required by the foundation school on a regular basis, then pursuant to Paragraph (5), Article 13 of the Public Education Act, the parent has the right to contact the head of the county assembly, or the county Chief Notary in order to ensure that his child's education is arranged for. (K-OJOG-321/2006.) |
The expert examination shall be initiated by the parent. It does however; happen that contrary to the parent's wishes, the school requires the child to be examined by the expert committee. Decree No. 14/1994 of the Ministry of Culture and Public Education on Training obligations and specialized pedagogical services emphasizes 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 feels that the expert examination of the child or student is necessary, then they call the parents in and recommend it to them, 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 proceedings. If the parent disagrees with the conclusions of the expert committee, then he or she is not required to sign it and has the right to request that it be reviewed. In such a case, the decision of the expert committee may not be implemented, and until the remedy proceedings do not result in a decision, the previous expert opinion shall remain in effect. The expert committees must inform parent on their right to legal remedies upon the issuing of the expert opinion. (K-OJOG-461/2006.)
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 public administration proceedings, if the parent disagrees 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.
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 legal institutions with respect to the sphere of authority of the principal.
One of the possibilities, that are not restricted to 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. The head of the educational institution also decide this, but in contrast with the previous case, he or she has no power 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.
Parents often contact us with the question as to whether it is legal for teachers and heads of institutions to countermand the conclusions of the expert opinion. We provided the parents with the following information: Pursuant to the provisions of the Public Education Act students suffering from dyslexia, dysgraphia, and dyscalculia qualify as students with special educational needs. Article 30 of the same act states that 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. Special care shall be provided pursuant to the provisions of the expert opinion provided by the expert and rehabilitation committees. If pursuant to the opinion of the expert committee, the student can be educated in an integrated manner, then the assessment of the child, appropriate for his or her abilities is ensured in a number of ways by the Public Education Act. Paragraph (9), Article 30 of the Public Education Act provides children with special educational needs with the opportunity that the school principal may exempt them from assessment and qualification in certain subjects or parts of subjects based on the opinion of the expert and rehabilitation committee. The opinion of the expert committee is necessary, if the child is to use this opportunity, as the exemption can only be given in the subjects and in line with the recommendations featured in the expert opinion. Therefore, if the expert opinion states that the student should be exempted from assessment in certain subjects, then neither the head of the institution nor the teachers have any power of decision on the matter. (K-OJOG-494/2006, K-OJOG-509/2006)
A parent contacted our Office with a problem. A student finished the 2005/2006 school year as fifth-grader. Despite the fact that the student should have been exempted from German language by the principal of the school, pursuant to a recommendation by the expert and rehabilitation committee dated February 22, 2006, the student was failed in the subject at the end of the school year. With this subject, the student failed a total of three subjects, as a result of which he was deprived of his right to take a corrective examination, which is automatically allowed if a student fails two subjects. We have informed the parent that Paragraph (9), Article 30 of Act LXXIX of 1993 on Public Education states that based on the professional opinion of the expert and rehabilitation committee or the educational counselling centre, in accordance with the delegation of tasks as set out by the statutes, the school principal may award exemptions from assessment and qualification in certain subjects or subject parts to students with special educational needs or to students who are struggling with integration, learning or behavioural problems. Therefore, it is clear that the statue does not grant power of judgement to the head of the institution; he or she must proceed in accordance with the expert opinion. In our opinion, having regard to the above, the failing grade given to the student at the end of the school year is not valid. We informed the parent that pursuant to Paragraph (8), Article 21 of Decree No. 11/1994 (VI. 8.) of the Minister of Public Education and Culture, if a student received a failing grade at the end of the school year; he or she is entitled to take a corrective examination. If the number of failing grades is more than two, then the student can only take the corrective examination with the teaching staff's authorisation, otherwise he or she has to repeat the grade. Having regard to the fact that the student's failing grade in German is in violation of the law, the student shall have the right to take a corrective examination. (The corrective examination can only be organized by the school that the student is in a legal relationship with currently.)
Having regard to the above, we recommended for the school principal to change the invalid grade recorded in the student's report card. We also advised them to proceed in accordance with the relevant statutory provisions in connection with the expert opinion of the expert and rehabilitation committee. The school principal did not accept our initiatives, which is why we contacted the municipality maintaining the primary school to take the necessary measures to ensure that the illegally recorded grade is erased from the student's report card. The maintainer accepted this recommendation. (K-OJOGB-67/2006.) |
Based on our inquiry experiences and the feedback we have been receiving, we have come to the conclusion that the right to special care of students concerned is frequently not enforced, because of a lack of information. Neither the students concerned, nor the people and bodies performing public education tasks related to them seem to have sufficient legal information to be able to enforce the rights of such students given to them by the relevant statutes.
When it comes to exemptions, those concerned are often mixed up as to whether it is the educational counselling centre or the expert committee that should provide an opinion. The statutes assign different roles to the counselling centre and the expert committee. The examination of students with disorders related to integration, studying and behaviour belongs to the sphere of competence of the counselling centre, while the establishment of special educational needs and ensuing control examinations are the responsibility of the expert committee. According to 28.) Paragraph (5), Article 22 of Decree No. 14/1994, if according to the opinion of the counselling centre the student might be in need of special education, then they advise 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 as to whether a given student has an integration related, learning or behavioural disorder, or has special educational needs, it is the expert and rehabilitation committee that shall decide at the request of the educational counselling centre. If disputes arise between the expert and rehabilitation committee and the educational counselling centre then-at the request of any of the concerned parties-then the professional service provider shall decide.
We have informed the parent that Paragraph (9), Article 30 of the Public Education Act states that based on the professional opinion of the expert and rehabilitation committee or the educational counselling centre, in accordance with the delegation of tasks as set out by the statutes, the school principal may award exemptions from assessment and qualification in certain subjects or subject parts to students with special educational needs or to students who are struggling with integration, learning or behavioural problems. Paragraph (2), Article 69 states that exemptions belong to the competence of the principal. Upon the request of the student, the principal-with the exception of practical training-may-wholly or partly-exempt a student from having to participate in compulsory school classes, if the student's individual abilities, special educational needs, or unique situation so require. Upon the student's request, the principal may exempt the student from learning skill-bases subjects, if the unique abilities, or the unique situation of the student so require. (K-OJOGB-406/2006.)
The educational counselling centre recommended that a student be exempted from assessment in a number of subjects. The principal of the school, however, did not grant the exemption due to the fact that she disagreed with the expert opinion. The Commissioner for Educational Rights pointed out in his quick verbal response that in cases where the competence of the educational counselling centre can be established, the principal of the school has no choice but to act in accordance with the conclusions of expert opinion, as he or she does not have the right to overturn it. The principal accepted this initiative. (K-OJOG-294/2006.) |
It sometimes happens that the institution is reluctant to accept the fact that the student will not receive any grades, end-of-semester, end-of-year-grades in the subjects he or she was exempted from, and assesses the student, despite the fact the student does not have any grades.
In a petition, a parent inquired about what rights his special needs child has in terms of exemptions from assessment. The expert committee recommended that the child be exempted from a number of subjects, but the school required the child to take a grading exam in order to establish her grades in the subjects she was exempted from.
We informed the parent on the following. Pursuant to the provisions of the Public Education Act students suffering from dyslexia, dysgraphia, and dyscalculia qualify as students with special educational needs. Article 30 of the same act states that 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. Special care shall be provided pursuant to the provisions of the expert opinion provided by the expert and rehabilitation committees.
If pursuant to the opinion of the expert committee, the child can be educated in an integrated manner, then the assessment of the child, appropriate for his or her abilities is ensured in a number of ways by the Public Education Act. Paragraph (9), Article 30 of the Public Education Act provides children with special educational needs with the opportunity that the school principal may exempt them from assessment and qualification in certain subjects or parts of subjects based on the opinion of the expert and rehabilitation committee. The opinion of the expert committee is necessary, if the child is to use this opportunity, as the exemption can only be given in the subjects and in line with the recommendations featured in the expert opinion.
Based on the documents made available to us, the expert committee recommended that the student be exempted from Hungarian language, Hungarian grammar, Mathematics, and Foreign Language subjects. What this means is that not only does the child not to receive any grades in these subjects during the school year, but she should not receive a grade in them at the end of the year either. Therefore, the expert opinion clearly states the child's progress to a higher grade cannot be conditional on an examination or test that measures the student's performance in the above-cited subjects. (K-OJOG-196/2006.) |
It is very important to note with regard to further studies that students can request exemption from School-Leaving Examination subjects as well. If the student does receive this exemption, then at the time of the School-Leaving Examination application the exemptions from certain parts of the examination must be requested separately.
A mother asked for our opinion about the following problem. Due to his special educational needs, her son was exempted from some of the School-Leaving Examination subjects as well. The parent did not know which subjects her son would be allowed to take a School-Leaving Examination in, in this case.
We informed the mother that if during secondary school studies the expert opinion of the expert and rehabilitation committee recommends that a student be exempted from evaluation and assessment in certain subjects, then in accordance with Paragraph (7), Article 6 of Government Decree No. 100/1997 (VI. 13.) on the Promulgation of Examination Regulations of the School-Leaving Examinations, said student shall have the right to take School-Leaving Examinations in subjects of his or her choice. Therefore, if the student has been admitted to the institution and during his or her secondary school studies has taken advantage of the exemption opportunity specified by the statutes, then this opportunity must also be ensured at the School-Leaving Examinations. (K-OJOG-578/2006.) |
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