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									LEGAL ISSUES IN SPECIAL
      EDUCATION

     Barbara A. Drayton, Deputy General Counsel
            S.C. Department of Education
              Office of General Counsel
                      August 2012
                 bdrayton@ed.sc.gov
S.C. Department of Education

General Supervision Responsibility
  – Monitoring School Districts to Ensure Compliance
    with the Individuals with Disabilities Education Act
    (IDEA)

     •Charter Schools
     •Adult Education Programs
     •Alternative Schools
     •Residential Treatment Facilities
     •Group Homes
      Monitoring Schedule
              2012 – 13
• SC Public Charter School
• Greenwood Fifty-One
• Chester
• Aiken
• Greenville
• Edgefield
• Spartanburg Two
• Florence Two
• Florence Three
• Kershaw
• Darlington
• Clarendon One
• Allendale
• Hampton One
• Chesterfield
• Spartanburg Three
     Annual Determinations

1.   Meets Requirements
2.   Needs Assistance
3.   Needs Intervention
        Aiken
        Saluda
4.   Needs Substantial Intervention
        Allendale
    LEGAL ISSUES IN SPECIAL
          EDUCATION
• Eligibility
• Identification and Evaluation
• Free Appropriate Public Education (FAPE)
• Least Restrictive Environment (LRE)
• Individualized Education Program (IEP)
• Related Services
• Parental Rights and Procedural
  Safeguards
• Discipline
  Who are the Students Covered
        under the IDEA?
Students who:
• have a disability in 1 of the 13 categories
  as determined by an evaluation in
  accordance with State Board of
  Education (SBE) Regulation 43-243.1.

• need special education and related
  services to benefit from his or her
  educational program.
  Categories of Disability under
            the IDEA
• Developmental             • Deaf-blindness
  Delay                     • Orthopedic
• Intellectual Disability     Impairment
• Specific Learning         • Other Health
  Disability                  Impairment
• Emotional Disability      • Traumatic Brain
• Speech or Language          Injury
  Impairment                • Autism
• Deaf and Hard of          • Multiple Disabilities
  Hearing                   • Visual Impairment
Evaluations
School districts/agencies must follow
certain federally-mandated
procedures throughout the process.


        (34 C.F.R. §§ 300.300 through 300.311)
• Sixty calendar-day timeline from the
  date of written parental consent for
  the evaluation until the date of the
  completion of all assessments and
  gathering all evaluation data.
• Placement in a special education
  program is not made based upon the
  results of one test, a doctor’s
  recommendation or referral, or a
  teacher’s or parent’s request.
John Boy Smith      8
                 8-17-12
     Who Pays for a Medical
          Evaluation?
Susan’s mother spoke with another parent
who attends her church and believes that
Susan may have ADHD. In response to the
mother’s request to evaluate Susan to
determine if she might have ADHD, the
teacher met with the mother and informed
her that ADHD is a medical diagnosis and
tells Susan’s mother that she must take her
daughter to her physician to get a
diagnosis before the school district can take
any further steps.
• Part B of the IDEA does not necessarily
  require a medical evaluation for the purpose
  of determining whether a child has a
  disability.
• If a school district/agency believes that a
  medical evaluation by a licensed physician is
  needed as part of the evaluation for
  determination of eligibility criteria for the
  other health impairment (OHI) category of
  disability, or any other disability category,
  the school district/agency must ensure that
  this evaluation is conducted at no cost to the
  parents.       34 C.F.R. § 300.8(c)(9).
• If the child is in the custody of the state,
  the foster parent may provide written
  consent for the evaluation and placement
  in the special education program
• If there is not a foster parent, then the
  school district/agency must appoint a
  surrogate parent to represent the student.
                               (34 C.F.R. § 300.519)
• The DSS caseworker cannot serve as the
  parent and provide permission for the
  evaluation and placement. (34 C.F.R. § 300.30)
   Prohibition of Mandatory
          Medication

Personnel in the LEA may not require a
student to obtain a prescription for a
substance covered by the Controlled
Substances Act (21 U.S.C. § 801 et seq.) as a
condition of attending school or receiving
an evaluation to determine eligibility for
special education services.
          Transfer Students
If a child with a disability who had an IEP that
was in effect in a previous school
district/agency in another state transfers to a
school district/agency in a new state, and
enrolls in a new school within the same school
year, the new public agency in consultation
with the parents must provide the child with a
FAPE, including services comparable to those
described in the child’s previous IEP until the
new school district/agency conducts an
evaluation, if determined to be necessary, and
develops, adopts, and implements a new IEP, if
appropriate, that meets the applicable
requirements in §§ 300.320 through 300.324.
What happens if a student
with a disability who was
expelled from another school
district or had a pending
expulsion moves into your
school district?
        Transfer Students

No administrator can legally block
the provision of special education
and related services to the student.
The type and amount of services
must be based upon the student's
unique and individual needs, not
administrative convenience or any
unilateral determinations of limits on
the services the student is entitled to
receive.
The student's IEP team is also
required to address the behavior
that led to the recommendation
for the student's expulsion in the
previous school district in an
effort to ensure that the behavior
does not recur when the student
returns to school.
Membership in Adult Education
        Programs
• Students with disabilities may elect to
  go to adult education programs on
  their own.

• Students with disabilities may be
  placed by IEP teams in adult
  education programs.
• Once a student with a disability is
  enrolled in an adult education
  program, the student may receive
  services in whatever location is
  determined by the IEP team to be
  appropriate.
• Students may receive support from the
  special education program at the high
  school or another school within the
  school district or the school district
  may send personnel and resources
  over to the adult education program.
• Students with disabilities in adult
  education diploma programs may
  attend high school assessment
  program (HSAP) remediation classes
  on the high school campus.


• Students in the adult education
  program may receive related
  services, such as speech-language,
  physical, or occupational therapy
  services on a high school campus.
        Collaboration

Both programs (special services and
adult education) are parts of the
school district, and the school district
is responsible for ensuring that all
students with disabilities receive a
FAPE, regardless of where the student
attends school within the school
district.
           Collaboration

• Students with disabilities cannot be
  compelled to enroll in an adult
  education program to receive
  services.
• Students with disabilities cannot be
  compelled to withdraw from adult
  education programs on the basis of a
  disability.
Private Schools
       (Parentally-placed)
Prior to the design and development of
special education and related services, each
school district must consult with
  – Private school representatives
  – Representatives of parents of parentally-
    placed students with disabilities
  – Home school representatives
    • Parents with programs approved by the district can send out
      invitations individually to parents
    • Home school organizations
EXAMPLE:
# OF ELIGIBLE STUDENTS IN PUBLIC SCHOOL             300
# OF ELIGIBLE STUDENTS IN PRIVATE SCHOOLS           +20
TOTAL # OF ELIGIBLE STUDENTS IN THE DISTRICT        320

PRIVATE SCH. #                          20      .0625 or 6.25%
PRIVATE AND PUBLIC #’S                 320


$152,500 = IDEA GRANT

$152,500 X 6.25% = $9,531.25
• A school district cannot refuse to
  evaluate a child who resides in the
  school district on the basis of the
  child's attendance at a private school
  in another LEA.

• The child is not required to enroll to
  be evaluated. The student is eligible
  for enrollment based on residence.
  This student could potentially be
  evaluated by two school districts.
                  Charter Schools
  The IDEA specifically requires that charter
  schools provide the same services to
  students with disabilities as any other
  public school.
   – Instruction by appropriately certified and
     highly qualified teachers in accordance with
     S.C. state law.
   – The provision of speech-language, physical and
     occupational therapy, travel training, sign-
     language interpreters, Braille, counseling,
     nursing services, etc.
* Section 504 of the Rehabilitation Act of 1973 and the ADAA of
2008 require the provision of equal access rights to
individuals with disabilities. *
•IEP teams must make individual
 determinations for each student.
•Charter school cannot ask parents to
 sign waivers that allow a denial of a
 FAPE to a student with a disability as
 a way to reduce the cost for
 providing services to the student.
•The IEP team must examine all
 possibilities for meeting the
 student’s needs, including
 collaboration with the authorizing
 school district.
Children who attend public charter
schools retain all rights under the
IDEA, including the right to the
availability of a continuum of
alternative placements and the right
to be placed in the LRE.
     Virtual Charter Schools

Are responsible for ensuring that the
learning environment that the child
uses to access his or her education is
accessible.
    This may include the provision of
    specialized equipment and services such as,
    but not limited to, assistive technology,
    physical therapy, occupational therapy,
    applied behavior analysis, and mobility
    training.
  Identification and Evaluation
  Concerns for Charter Schools
• What are your child find procedures?
• How will the charter school handle referrals
  for evaluations for determination of possible
  eligibility?
• Will the school hire its own personnel or
  contract for evaluations?
  – School Psychologists
  – Speech-Language Therapists
  – Physical Therapists
  – Occupational Therapists
Group Homes and Foster Homes
         Proviso 1.8
Proviso 1.8 of the current General
Appropriation Act provides that school
districts wherein a child of lawful school
age resides in a group home, foster
home, orphanage, state-operated health
care facility, or habilitation center for
individuals with mental disabilities, are
responsible for providing a FAPE for all
children, including children with
disabilities.
Residential Treatment Facility (RTF)
              Proviso 1.61
 Each South Carolina resident of lawful school
 age residing in licensed residential treatment
 facilities (RTFs) for children and adolescents
 as defined under Section 44-7-130 of the 1976
 Code, (“students”) shall be entitled to receive
 educational services from the school district in
 which the RTF is located (“facility school
 district”). The responsibility for providing
 appropriate educational programs and
 services for these students, both with and
 without disabilities, who are referred or
 placed by the State is vested in the facility
 school districts.
                  RTFs

• Avalonia Group Homes
• Carolina Children's Home
• Directions (State Hospital)
• Excalibur Youth Services
• Generations Residential Programs Inc.
• Lighthouse Care Center of Conway
• Marshall I. Pickens Hospital Children's
  Program
• New Hope Carolinas
• Palmetto Lowcountry Behavioral
  Health
• Palmetto Pee Dee Residential
  Treatment Center
• Palmetto Pines Behavioral Health
• Pinelands Residential Treatment Center
• Riverside Behavioral Health Services at
  Windwood Farm
• Springbrook Behavioral Health System
• Three Rivers Behavioral Health
• Three Rivers Residential
  Treatment/Midlands Campus
• Willowglen Academy South Carolina
• York Place: Episcopal Church Home for
  Children
         RTF Proviso 1.61
A facility school district (the school
district in which the RTF is located)
must provide the necessary
educational programs and services
directly to the student at the RTF’s
facility, provided that the RTF facility
provides and maintains adequate
space for the educational programs
and services consistent with the least
restrictive environment requirements.
               Funding
The facility school districts are entitled
to receive the base student cost
multiplied by the Education Finance
Act (EFA) pupil weighting for
Homebound pupils of 2.10, as set forth
in Section 59-20-40 of the 1976 Code
and any eligible categorical and
federal funds.
A facility school district is entitled to
reimbursement from a resident school district for
the difference between (1) the reasonable costs
expended for the educational services provided
directly by the facility school district or the amount
paid to the RTF and (2) the aggregate amount of
federal and state funding received by the facility
school district for that student. However, the
reimbursement rate may not exceed $45 per
student per day. Should the facility school district
be unable to reach agreement with the resident
school district regarding reasonable costs
differences, the facility school district shall notify
the Department of Education’s Office of General
Counsel.
If the issue of reasonable cost differences
should remain unresolved, the case shall
be referred to the Administrative Law
Court for a final decision. Should a
resident school district fail to distribute
the entitled funding to the facility school
district by the 135 day count, the
Department of Education is authorized to
withhold the equivalent amount of EFA
funds and transfer those funds to the
facility school district.
       Educational Services
All students enrolled in the facility school
districts shall have access to the facility
school districts’ general education
curriculum, which will be tied to the South
Carolina academic standards in the core
content areas. All students with
disabilities who are eligible for special
education and related services under the
IDEA, as amended, and the State Board of
Education (SBE) regulations,
      Educational Services

as amended, shall receive special
education and related services in the
least restrictive environment by
appropriately certified
personnel. Students in an RTF will at
all times be eligible to receive the
educational credits (e.g., Carnegie
Units) earned through their educational
efforts.
  Out-of-State RTF Placements

For a child with a disability placed
outside the state by an educational
or non-educational state or local
agency, the state initiating the
placement is responsible for ensuring
that the child’s IEP is developed and
implemented.
Ripped from the
   Headlines
 The South Carolina Appleseed Legal
   Justice Center and the Southern
Poverty Law Center Filed a Complaint
Tuesday Against the Beaufort County
            School District
              June 12, 2012

The complaint alleges that the school district
denied special education services to
students with disabilities and subjected
them to repeated suspensions and
unnecessarily harsh discipline.
The filing alleges that the district fails to
provide students with disabilities special
education services, such as counseling
and positive behavioral support plans.
Students with disabilities are disciplined
without parents being notified in some
instances, according to a news release.
African-American students with
disabilities are suspended at an higher
rate than white students with
disabilities, the groups allege.
The Southern Poverty Law Center Filed a
  Federal Civil Rights Complaint with the
U.S. Department Of Education Today that
 Describes How Discriminatory Policies of
The Jefferson Parish Public School System
        in Louisiana Have Pushed a
    Disproportionate Number Of Black
  Students and Students With Disabilities
   into Alternative Schools, Where They
 often Languish for Months or Even Years
         Before Returning to School
                 May 17, 2012
The district’s strict alternative school
exit policy – a system where students
earn points to win the opportunity to
return to their regular school – has
resulted in lengthy stays for students
with disabilities. Since the exit policy
awards points based on a student’s
behavior, students with emotional or
behavioral disabilities face a daunting
task of winning their release from the
alternative school.
Southern Poverty Law Center Sues
Mississippi Department of Education
for Failing to Protect Students with
             Disabilities
                   07/10/2012
 The lawsuit, filed on behalf of Jackson public
 school students with disabilities, describes how
 the district continues to violate federal law by
 denying these students access to critical
 educational services. The district also has
 violated the law by removing these students
 from classrooms, often as punishment for
 behavior related to their disabilities.
The Southern Poverty Law Center
     Has Asked the Federal
Government to Investigate What
      it Says is a Pattern of
   Disproportionate Discipline
    Against Black Students in
    Escambia County Schools
          August 7,   2012
Disciplining Students With
         Disabilities


             HQT


            PWN
• Any disciplinary action taken against a
  student with a disability must be
  consistent with the IDEA.
• No one person can unilaterally decide to
  change the placement of a student with a
  disability to another setting.
• The IDEA procedures for changing a
  student’s placement for disciplinary
  reasons require the involvement of
  student’s IEP team and a determination by
  the IEP team that the change of placement
  is appropriate.
              Discipline

School Districts/Agencies May Impose:

   Short-term removals of 10 cumulative or
   10 consecutive school days or less
   during the school year without the
   requirement to provide educational
   services.

                  34 C.F.R. §300.530(b)(1)
What Constitutes a Short-term
   Disciplinary Removal?

• Suspensions, removals, and
  exclusions from school that total less
  than 10 cumulative days and do not
  result in a change of placement.

• School districts must document all
  disciplinary removals in Power
  School.
             Exclusion
For Disciplinary Reasons
  – Administrators cannot impose
    suspensions or undocumented days of
    removal for unlimited periods of time.
What is a Long-term Removal that
Constitutes a Change in Placement?


 A disciplinary removal for more than 10
 consecutive school days is a change in
 the student’s placement.
                           34 C.F.R. §300.536
       Change In Placement
               34 C.F.R §300.536

– Removals are also a change in
  placement when the removals
  constitute a pattern
  • A series of removals for more than 10
    cumulative school days;
  • The student’s behavior is substantially similar
    to the behavior in previous incidents that
    resulted in the series of removals; and
  • Because of the length of each removal, the total
    amount of time of each removal, and the
    proximity of the removals to each other.

                                   It’s a change
  If it’s a pattern . . .
                                   in placement
    What if We Don’t Call it a
          Suspension?
It does not matter what you call it if it
is a disciplinary removal and you do
not comply with the federal
requirements!!!
       Notice Requirement
On the date that the decision is made to
impose a disciplinary removal that
constitutes a change in placement for a
student with a disability, the school
district/agency must notify the parents of
that decision, and provide the parents the
procedural safeguards notice described in
34 C.F.R. §300.504.
                      34 C.F.R. §300.530(h)

    Mrs. Parent
    12 Big Street
      Notice Requirement
If the student violates the code of
conduct by getting into a fight with
another student, stealing, throwing a
chair at a staff member, or some other
act and the school sends home a notice
that the student is suspended and
referred for expulsion or is suspended
for a number of days that will put the
student over the 10-cumulative day
mark, then the school must provide the
parent with a copy of the procedural
safeguards notice on that same day.
      Weapons and Drugs


School personnel are permitted to order
a change in a student’s placement to an
interim alternative educational setting
(IAES) for not more than 45 school days
for weapons or drug offenses, regardless
of whether the behavior is a
manifestation of the disability.
                   34 C.F.R. §300.530(g)
Changes To Disciplinary Procedures



School personnel are permitted to
order a removal to an IAES for not
more than 45 school days if a
student inflicts serious bodily
injury upon another person while
at a school function.
       Serious Bodily Injury
Defined in 20 USC § 1365(g) to mean


 1) a bodily injury that involves a
    substantial risk of death; extreme
    physical pain; protracted and
    obvious disfigurement; or
 2) protracted loss or impairment of the
    function of a bodily member,
    organ or faculty.
Manifestation Determination Review
               (MDR)
Within 10 school days of any decision to
change the placement of a student with
a disability because of a violation of a
code of conduct, the school
district/agency, the parent, and relevant
members of the student’s IEP team must
review all relevant information in the
student’s file, including the student’s
IEP, teacher observations, and any
relevant information provided by the
parents to determine if the conduct in
question is a manifestation of the
student’s disability.
                     34 C.F.R. §300.530(e)
 What is the Purpose of the MDR?

•To determine if the student’s
 behavior is related to the student’s
 disability.

•To determine if the student’s
 behavior is a result of the failure to
 implement the student’s IEP.
Question:
 What are the certification requirements for personnel
 serving students in an alternative school?
Response:
 There is no flexibility to relax professional standards
 for personnel at the alternative school. State
 certification standards are still in effect. If a student
 was previously served in a self-contained class for
 students with learning disabilities or a self-contained
 class for students with emotional disabilities, then the
 certification standards for personnel delivering
 instruction at the alternative school are the same as
 the standards in the regular setting. Personnel must
 also meet the highly qualified requirements under
 the Elementary and Secondary Education Act (ESEA).
Home-based Placement for
  Disciplinary Reasons

The student’s IEP team must determine
the appropriate amount of special
education and related services and be
able to explain how each decision was
made relative to the specific student.
        Addressing The Behavior
• Provide, as appropriate, a FBA,
  behavioral intervention services, and
  modifications that are designed to
  address the behaviors that led to the
  student’s violation of the code of conduct
  so that the behaviors do not recur.
• Consider what strategies, supports,
  services, and modifications are necessary
  to address the behaviors that led to the
  behavior that resulted in the proposal to
  change the student’s placement.
                        34 C.F.R. §300.530(d)(2)
 What if the Parent Disagrees with the MDR
                  Results?

The parent may request an expedited
due process hearing to challenge the
results of the MDR.
  – The hearing must be conducted within
    twenty school days and the decision must
    be rendered within 10 school days after the
    hearing.
  – A resolution meeting must occur within 7
    calendar days of receiving notice of a due
    process hearing to challenge the MDR
    results.
                    34 C.F.R. §300.532(a) through (c)
 Educational Placement During the
          MDR Challenge

Change in the Stay Put requirements
 The student remains in the IAES chosen
 by the student’s IEP team during the
 pendency of any proceeding to challenge
 the proposed change in placement,
 unless the parties agree to another
 placement or the period of time for the
 student’s placement in the IAES ends.

                     34 C.F.R. §300.533
        In-school Suspensions
   (P. 46715 of the comments to the federal
            IDEA ’04 regulations)

• In-school suspensions (ISS) are not
  counted toward the student’s days of
  out-of-school suspension, as long as
  the student is afforded the opportunity
  to continue to appropriately participate
  in the general curriculum, continue to
  receive the services specified in his or
  her IEP, and continue to participate
  with students without disabilities to
  the extent that he or she would in the
  current (regular) placement.
  ISS – Office For Civil Rights
         (OCR) Rulings
The OCR notes in its investigations that
unless the nature and quality of the
educational services provided during ISS
are comparable to the nature and quality
of education previously provided to a
student with a disability, an ISS is an
exclusion.
               Discipline
  (P. 46715 of the comments to the federal
           IDEA ’04 regulations)


Whether a bus suspension counts as a
day of suspension depends on whether
transportation is a part of the student’s
IEP. If transportation is in the IEP, a bus
suspension is treated as a suspension
unless the school district/agency
provides transportation in some other
manner.
      Letter to Sarzynski, 112 LRP 35343
                (OSEP 06/21/12).
             (Bus Suspensions)
If the school district does not offer the
student another mode of transportation
and the student is not be able to attend
school without the provision of
transportation, then this is viewed as the
same as an out-of-school suspension for the
student and all of the necessary procedures
in the IDEA relative to disciplining students
with disabilities come into play.
If the school district fails to offer an
alternate mode of transportation and the
parent voluntarily provide transportation
so that the student does not miss school as
a result of the bus suspension, this will not
get the school district off the hook.

For example, if Student A, who has
transportation in his IEP, is suspended from
the regular school bus for fifteen school days
and the school district does not provide
transportation by another
method, such as by having the special
education or transportation director pick
the student up in a private auto; using a
taxi or other common carrier; or using a
smaller bus to transport the student, and
Student A’s mother provides the
transportation without a contract with the
district to do so with reimbursement, then
the disciplinary provisions that include
conducting a manifestation determination
review must be followed.
                  Discipline
 (P. 46715 of the comments to the federal IDEA ’04
                   regulations)


School districts/agencies should consider
whether behavioral problems on the bus
are similar to behavioral problems in the
classroom and whether the student’s
behaviors on the bus should be
addressed in the student’s IEP or BIP.
    Students Not Yet Identified
A student who was not previously
determined eligible for special education
and who has violated the disciplinary code
can assert the protections of the IDEA, if the
district knew or should have known that
the student was a student with a disability
before the behavior occurred.
     •If the parents refused to allow the school
      district/agency to evaluate the student, the
      student does not get these protections.
                           34 C.F.R. §300.534(a)
       Basis Of Knowledge

The school district/agency must be deemed
to have knowledge that the student is a
student with a disability, if before the
behavior that precipitated the disciplinary
action occurred, the parent took any one of
the steps listed in 34 C.F.R. § 300.534.
    Students Not Yet Identified
 (P. 46727 Of The Comments To The Federal Regulations)

If a parent or teacher of a student receiving
early intervening services (EIS) expresses a
concern, in writing, to appropriate school
district/agency personnel that the student
may need special education and related
services, the school district/agency is
deemed to have knowledge that the
student is a child with a disability under the
IDEA.
 Maintenance of Effort (MOE)
•State MOE
 – Reduction in State IDEA Grant $36.2m
 – Appeal


•Local MOE
 – Proviso
 – Repayment
   Proviso 1.91- (SDE: EFA-IDEA
      Contingency Reserve)
Of the funds appropriated to the
department for EFA-IDEA Contingency
Reserve, up to $36,202,909 shall be directed
to supplement a loss of federal funding from
the IDEA expected on October 1, 2012. No
funds shall be expended until the U.S.
Department of Education initiates a
reduction in funds, and only in an amount
equal to the amount of federal funds
withheld.
These funds shall be distributed using the
same methodology as federal IDEA funds.
In the event that any amount appropriated
for the EFA-IDEA Contingency Reserve is
not needed to offset the loss of federal
IDEA funds in the current fiscal year, these
monies shall be distributed to school
districts and special schools based on the
EFA formula. This would result in a
maximum base student cost increase of
approximately $58 or a total maximum
base student cost of $2,070.

								
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