Special Education Law

1
Special Education Law

• Presented by
• Jane R. Wettach
• Clinical Professor of Law, Duke Law School
• Director, Duke Childrens Law Clinic

2
History of Discrimination

• Approximately 12 percent of children have
  disabilities that affect their ability to learn
• Disabilities range from mild to profound
• Historically, the most impaired were excluded
  from education altogether
• Some (such as blind, deaf, mentally retarded)
  were segregated in special schools
• Less impaired were in public school but were
  often retained in grade level, considered lazy or
  stupid, or dropped out of school because their
  needs werent met

3
Challenges to Discrimination the Right to be
Educated

• Early 1970s successful civil rights lawsuits
  brought on behalf of disabled children for
  inclusion in public schools
• 1975 first federal law promising states federal
  funds to assist in educating children with
  disabilities -- Education for all Handicapped
  Children Act (94-142)
• 1990 -- revisions to EHCA, including new name
  Individuals with Disabilities Education Act
• 2004 most recent revisions to IDEA

4
Special Education Laws

• The Individuals with Disabilities Education Act
  20 USC 1400 et seq and 34 CFR Part 300
• Education of Children with Disabilities NCGS
  115C-106 et seq
• North Carolina Policies, issued by the Dept. of
  Public Instruction N.C. Policies Governing
  Services for Children with Disabilities

5
IDEA The Basic Promise

• All children with disabilities are entitled to
• A free, appropriate, public education
• In the least restrictive environment
• Pursuant to an Individualized Education Program
  (IEP)

6
IDEA Entitlements

• The right to be evaluated, at public expense, to
  determine eligibility for special education
• The right to an Individualized Education Program
  that provides the specialized instruction and
  related services needed to allow the child to
  make educational progress

7
IDEA Entitlements

• The right to be educated, to the maximum extent
  possible, with typically developing peers
• The right to access, to the maximum extent
  possible, to the general curriculum

8
IDEA Entitlements

• The right of parents to be involved in the
  decision-making process and the development of
  the IEP
• The right to review of decisions made by the IEP
  team through due process appeal

9
Who is a child with a disability?

• Child (ages 3 21) must have an identified
  physical or mental dysfunction that interferes
  with educational performance
• Child must need specially designed instruction
  to make educational progress (not just
  accommodations)

10
What is a FAPE?

• A free, appropriate public education is
• Special education (i.e., specially designed
  instruction to meet the unique needs of the
  child) and
• related services (supportive services designed to
  enable the child to benefits from instruction
  such as transportation and specialized therapies)
• that allow the child to make reasonable
  educational progress.

11
What is a FAPE?

• Educational progress is not just academic
  learning, but includes
• Socialization
• Adaptive/functional skills
• Language and communication
• Reduction of behavioral problems

12
What is the least restrictive environment?

• The LRE is the setting in which children with
  disabilities may be educated with typical
  children to the maximum extent possible

13
Least Restrictive Environment

• Every child should be educated in the regular
  classroom, in the school he or she would attend
  if not disabled, with supplementary aids and
  services.

• Special classes, separate schooling or other
  removal of children with disabilities from the
  regular educational environment occurs only if
  the nature or severity of the disability is such
  that education in regular classes with the use of
  supplementary aids and services cannot be
  achieved satisfactorily

14
Least Restrictive Environment

• Disabled child need not be placed in a regular
  classroom if
• The child would not receive educational benefit
  from being educated in regular classroom or
• The marginal benefit of being educated in the
  regular classroom is outweighed by the benefits
  of a separate setting or
• The disabled child is a disruptive force in the
  regular classroom.

15
Special Education -- Eligibility

• Child must be referred to be evaluated for
  possible special education services
• A parent or teacher must make the referral. It
  must be
• in writing, addressed to the principal
• dated
• state reason for referral in terms of lack of
  educational performance
• The school district has an obligation to identify
  children who may need special education, but
  parent should refer if there are concerns
• The parents must agree for the evaluation to
  proceed.

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Special Education -- Eligibility

• Initial evaluation is usually conducted by a
  school psychologist (but it can be contracted
  out)
• State policies set out required recommended
  screenings evaluations for each type of
  disability, as well as the criteria for
  eligibility in each category

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Special Education -- Eligibility

• School has 90 days from date of referral to
  beginning of services
• If parent believes school evaluation is
  incomplete or wrong, parent can ask for an
  independent evaluation at school expense
• School must either pay for the evaluation, or
  file a due process petition to allow a judge to
  decide if school is obligated to pay

18
Special Education -- Eligibility

• After the evaluation is completed by the
  psychologist, eligibility is decided by a team of
  qualified personnel plus the parent, who review
  the testing
• Parent may invite persons who have special
  expertise
• Members of the team consider all information and
  then determine if child fits into one of the 14
  eligibility categories (shown on next slide)

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Categories of Eligibility

• Autistic
• Deaf
• Seriously emotionally disabled (formerly BED)
• Deaf-Blind
• Hearing impaired
• Multi-handicapped
• Intellectually disabled (formerly EMD, TMD)
• Orthopedically impaired

• Other health impaired (includes ADD/ADHD)
• Specific learning disabled (includes dyslexia)
• Speech/language disabled
• Traumatic brain injured
• Visually impaired
• Developmentally delayed (for children aged 3 7)

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The IEP

• Each eligible child must have an Individualized
  Education Plan (IEP), revised at least annually
• IEP is blueprint for the childs free,
  appropriate, public education in the least
  restrictive environment
• IEP must be written by a team of persons
  knowledgeable about the child and the childs
  needs, including parents

21
The IEP

• Must be designed to meet childs unique needs,
  and include
• Current performance
• Measurable, objective annual goals
• Short term benchmarks/objectives required for
  children who take alternate assessments
• A statement of the special education and related
  services, and supplementary aids and services to
  be provided
• Amount of special education to be provided
• Amount of related services to be provided
• Classroom and testing modifications
• Placement on continuum of settings

22
Follow up to IEP

• IEP is revised annually, or as often as needed,
  to assure that child is making progress on goals
• Child is re-evaluated at least every three years,
  or more often if needed (but not more than once a
  year unless parent and school district agree)

23
Entitlement to FAPE

• A FAPE allows a child to make reasonable
  educational progress. For children with average
  cognitive skills, this generally means being
  taught the standard course of study, with
  appropriate supports modifications, and passing
  from grade to grade.
• A FAPE does not require services to maximize
  the potential of the student

24
FAPE

• Progress should be measurable
• measured.
• A parent has the right to ask for objective
  testing on a regular basis that reflects
  progress.
• A parent has the right to have periodic reports
  as often as regular report cards go out -- of
  progress on IEP goals

25
Reasonable Progress

• Some ways to measure progress
• Grades, if student is in standard curriculum
• Achievement of annual goals (so long as those
  goals change from year to year and represent
  progressively more sophisticated skills)
• Improvement on standardized measures that compare
  student to nationally-normed standards

26
Methodology

• As a general rule, a parent does not have a legal
  right to demand a preferred teaching strategy or
  methodology. School personnel may choose the
  methodology to be used.
• Parents have the right to demand a methodology
  that works. A legal claim arises if the child
  does not make progress with the methodology
  chosen by the school personnel.

27
IEP Timelines

• After parental consent for evaluation,
  determination of eligibility must be accomplished
  within 60 days
• After determination is made that a child requires
  special education, an IEP must be developed
  within 30 days

• IEP shall be implemented as soon as possible
  following the IEP meeting
• From referral to placement in appropriate program
  may not exceed 90 days

28
Private Services at Public Expense

• If the school district cannot provide services
  that allow a child to make reasonable educational
  progress, it must pay for those services to be
  provided privately
• If the school district does not provide the
  services, a parent can unilaterally place the
  child in a private school and request
  reimbursement

29
Private Services at Public Expense

• If the parent unilaterally places his child in
  private school, he must
• Give the school district at least 10 days notice
  that he finds the IEP unacceptable, plans to
  place his child in private school, and demands
  tuition reimbursement
• If the school district declines, parent must file
  a due process petition and prove that the childs
  proposed IEP did not offer a FAPE and that the
  private school chosen was appropriate for the
  child

30
Discipline Special Ed Students

• Disabled children are treated as regular ed
  students if they are suspended for fewer than 10
  days (cumulative in a year) (i.e., no
  protections, no recourse)
• Disabled children have additional rights for
  suspensions of more than 10 days (cumulative in a
  year, if suspensions form a pattern)

31
IDEA Discipline Protections

• Students with IEPs are entitled to these
  protections
• Manifestation Determination Review
• Functional Behavior Assessment
• Behavior Intervention Plan
• Continuation of FAPE

32
Manifestation Determination Review

• Before a disabled child can be suspended for more
  than 10 days, there must be a manifestation
  determination review
• Relevant members of the IEP team shall determine
  whether the conduct in question was
• Caused by or had a direct and substantial
  relationship to the childs disability, OR
• A direct result of the LEAs failure to implement
  the IEP

33
Manifestation Determinations

• No manifestation proceed with suspension,
• BUT continue with FAPE in an alternative setting
• Manifestation no suspension allowed,
• BUT services placement can be reviewed and
  changed
• MDR results are appealable
• But no stay-put protection child stays in
  alternative setting pending the appeal

34
Interim Alternative Educational Setting

• Regardless of whether behavior is a
  manifestation, a student may be removed to an
  interim alternative educational setting for 45
  school days if the student
• Brought drugs or weapons to school
• Caused serious bodily injury
• While in interim alternative educational setting,
  student should be able to have access to the
  general curriculum and make progress on IEP goals.

35
Functional Behavior Assessments

• If appropriate, the school should engage in a
  functional behavior assessment (FBA)of the
  disciplined student
• FBA is a process designed to better understand
  the childs behavior
• What are the offensive behaviors?
• How often and in what context do they occur?
• What triggers bring on the behavior?
• What is the underlying function of the behavior?
• What are potential replacement behaviors that
  will accomplish the same function?

36
Behavior Intervention Plan

• A BIP is a plan that is designed, based on the
  information gained in the FBA, to
• Reduce the likelihood of the offensive behaviors
  occurring
• Identify behavioral supports
• Structure the steps to be taken when offensive
  behaviors occur (redirection, change environment,
  etc.)
• Identify consequences

37
Continuation of FAPE

• Special education students have the right to
  continued education during their period of
  suspension
• They must be able to
• Continue to participate in the general education
  curriculum, although in another setting
• Progress toward meeting their IEP goals

38
Problem resolution under IDEA

• Informal resolution
• Mediation
• Due process appeal
• State complaint

39
Informal resolution

• Conferences with teacher, principal, service
  providers, special education administrators
• IEP meetings
• Facilitated IEP
• meetings

40
Facilitated IEP meetings

• DPI will provide a facilitator for an IEP meeting
• No cost to parents
• Form to request on DPI (EC Division) website
  (Facilitation request)
• May help parent have and take opportunity to
  contribute to the meeting
• May help school personnel to take parental
  information into account

41
Special education mediation

• A process offered free to parents and school
  systems, administered by the state dept. of
  education
• A focused discussion, facilitated by a mediator,
  designed to bring parents and school personnel in
  a dispute to an agreement
• Request mediation

42
Special education mediation

• Voluntary on both sides
• Confidential what people say cannot be brought
  up in due process hearing or court (such as
  offers to settle in a certain way)
• Ends either without an agreement or with a
  written mediation agreement that is enforceable
  in court

43
Due Process Appeal

• Administrative hearing conducted by state
  administrative court
• Formal, trial-like process with witnesses and
  documentary exhibits
• Best for resolving significant differences of
  opinion about whether child is getting a FAPE in
  the LRE.
• Judge can order compensatory services,
  reimbursement, future services, but not money
  damages

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For legal help, contact

• Childrens Law Clinic
• Duke Law School
• 919-613-7169
• Free legal advice and representation for
  low-income families living in an 11-county region
  around Durham, NC