LEGAL ISSUES IN SPECIAL EDUCATION Barbara A. Drayton, Deputy General Counsel S.C. Department of Education Office of General Counsel August 2012 email@example.com 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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