Overview of Special Education Laws and Obligations

- a special education training –

June 18, 2012- by -

Mary Kay Klimesh

PartnerSeyfarth Shaw LLP131 South Dearborn StreetSuite 2400Chicago, IL 60603Phone: (312) 460-5000mklimesh@seyfarth.com

Olga PribylVice President of Pro Bono and Special Education Clinic

Equip for Equality

20 North Michigan Avenue, Suite 300

Chicago, IL 60602

Phone: (312) 895-7321

Olga@equipforequality.org

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Legal Framework

Individuals with Disabilities Education Improvement Act (often referred to as “IDEA”)

Americans With Disabilities Act (ADA) Section 504 of the Rehabilitation Act

(Section 504)

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IDEA and Charter Schools IDEA is the federal law providing the specific mandates for public

school obligations to provide special education services to eligible students.

In Illinois, when a school’s charter is issued by a local board of education, that charter school is considered as a school within the district over which that board of education exercises jurisdiction for purposes of compliance with IDEA and its procedural requirements and obligations to students.

In Illinois, when a school’s charter is issued by ISBE, that charter school is considered as its own local education agency responsible for complying with IDEA.

In either case, all charter schools and its personnel must comply with the procedural requirements of IDEA.

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Child Find

Each school district is responsible for actively seeking out and identifying all children from birth through age 21 who may be eligible for special education and related services.

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Child Find

Child find responsibilities include: An annual screening of children under

the age of five; Ongoing review of each child’s

performance and progress by teachers/professional personnel; and

Ongoing coordination with early intervention programs.

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IDEA Eligibility

To qualify for special education and related services, a student must be between the ages of 3 and 21 and must satisfy both parts of a two-part test: The student must meet the definition of one or

more of the categories of disabilities specified The student must be shown to be in need of

special education and related services as a result of his disability or disabilities.

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IDEA Eligibility

A student cannot be eligible for special education services without: a referral; a determination that an evaluation needs to be completed; a parental consent for the evaluation (unless consent is overridden through a due process hearing); and, the completion of a case study evaluation.

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IDEA Eligibility A referral may be made by any concerned person, including

school personnel, a parent, an employee of a community service agency, or another professional having knowledge of a child’s problems.

If it is determined that an evaluation is needed, informed parental consent must be obtained before conducting an evaluation. Further, parental consent for evaluation shall not be construed as consent to placement or receipt of special education services.

The evaluation must include a variety of assessment tools and strategies to gather relevant functional, development, and academic information about the child, including information provided by the parent, to assist in determining whether the child is a child with a disability.

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Evaluations

Time Frame for Evaluations:

The case study evaluation and initial IEP meeting should be completed within 60 school days after the date of written consent from the parent.

If consent is obtained with less than 60 school days left in the school year, then the evaluation and IEP meeting to determine eligibility must occur before the first day of student attendance for the following school year.

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Evaluations

Parent Refusal of Consent for Initial Evaluation: If the parent of a child does not provide

consent for an initial evaluation or the parent fails to respond to a request to provide the consent, the school district may pursue the initial evaluation of the child by utilizing due process procedures.

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Evaluations

Revocation of Consent for Evaluation: Revocation of informed written consent

from the parent may be communicated orally or in writing.

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Eligibility Determination

The IEP team must determine whether the child is eligible for special education and related services as a child with a disability and also must determine the child’s educational needs.

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Eligibility The Eligibility Categories: Autism Deaf-Blindness Deafness Emotional Disability (ED) Hearing Impairment Cognitive Disability Multiple Disabilities Orthopedic Impairment Other Health Impairment (OHI) Specific Learning Disability (SLD) Speech or Language Impairment Traumatic Brain Injury Visual Impairment Developmental Delay

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Eligibility Consideration of Adverse Affect and Need for

Special Education: In order to qualify for services pursuant to the

IDEA: The child must have one of the specified disabling

conditions or impairments; The impairment must adversely affect educational

performance; and The child must, by reason of the disability, need

special education and related services.

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Provision of FAPE

Students who qualify for special education services must be provided the services at no cost to their parents. School districts must ensure that a free, appropriate public education (FAPE) is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.

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Provision of FAPE In Bd. of Educ. of Hendrick Hudson v.

Rowley, the U.S. Supreme Court stated that when assessing whether the individualized education program provided and/or planned for an eligible student provides FAPE, the court’s inquiry is twofold: First, has the State [School District/School]

complied with the procedures set forth in the Act? And second, is the individualized educational

program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.

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Individualized Education Program (IEP)

In developing the IEP, the IEP Team mustconsider: the strengths of the child; the concerns of the parents for enhancing the

education of their child; the results of the initial evaluation or most

recent evaluation of the child (including evaluations presented by the parent); and

the academic, development, and functional needs of the child.

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Individualized Education Program (IEP)IEP should include:1. A statement of the child’s present levels of academic

achievement and functional performance2. A statement of measurable annual goals, including academic

and functional goals3. A description of how the child’s progress toward meeting the

annual goals will be measured and when periodic reports on the progress the child is making toward meeting the annual goals

4. A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable

5. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class

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Individualized Education Program (IEP)IEP should include (cont.):6. A statement regarding the child’s ability to participate in State and

district-wide assessments7. A statement as to the languages or modes of communication in which

special education and related services will be provided, if other than or in addition to English

8. A statement as to whether the child requires the provision of services beyond the district’s normal school year in order to receive FAPE (“extended school year services”) and, if so, a description of those services that includes their amount, frequency, duration, and location

9. The projected date for the beginning of the services and modifications, and the anticipated frequency, location and duration of those services and modifications

10. A behavioral intervention plan (for certain students)11. A transition plan beginning not later than the first IEP to be in effect

when the child turns 14½, and updated annual thereafter

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Individualized Education Program (IEP)IEPs for Students on the Autism Spectrum under Illinois law: Team may consider the following in developing the IEP:

The verbal and nonverbal communication needs of the child The need to develop social interaction skills and proficiencies The needs resulting from the child’s unusual responses to sensory

experiences The needs resulting from resistance to environmental change or

change in daily routines The needs resulting from engagement in repetitive activities and

stereotyped movements The need for any positive behavioral interventions Other needs

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Individualized Education Program (IEP)IEP Team Participants: The parents of a child with a disability Not less than 1 regular education teacher Not less than 1 special education teacher A representative of the local education agency An individual who can interpret the instructional implications of evaluation results A qualified bilingual specialist or bilingual teacher, if the presence of such a

person is needed to assist the other participants in understanding the child’s language or cultural factors as they relate to the child’s instructional needs.

In the case of a child whose behavior impedes his or her learning or the learning of others, a person knowledgeable about positive behavior strategies.

At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.

Whenever appropriate, the child with a disability.

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Individualized Education Program (IEP)

The IEP Team must also consider special factors, as appropriate:

in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;

in the case of child with limited English proficiency, language needs;

for blind or visually impaired student provide for instruction in Braille and the use of Braille;

communication needs; need for assistive technology devices.

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Individualized Education Program (IEP)

The regular education teacher’s participation in the development of the IEP is IMPORTANT and the regular education teacher must, to the extent appropriate, participate in the development of the IEP, including the determination of appropriate positive behavioral interventions and supports, and other strategies, and the determination of supplementary aids and services, program modifications, and support for school personnel.

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Individualized Education Program (IEP) AGREEMENT TO MODIFY IEP: In making changes to

a child’s IEP after the annual IEP meeting for a school year, the parent and the school district may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child’s current IEP.

AMENDMENTS TO THE IEP: Changes to the IEP may be made either by the entire IEP Team or by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated.

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Placement in the Least Restrictive Environment

The LRE Mandate: IDEA requires that each district ensure that to the

maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occur only when the nature and severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

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Placement in the Least Restrictive EnvironmentRegarding the placement decision: The placement decision must be made by a group of

persons knowledgeable about the child The child’s placement must be determined at least

annually, is based on the child’s IEP and is as close as possible to the child’s home

Unless the IEP of a child with a disability requires some other arrangement, the child must be educated in the school he/she would attend if nondisabled

In selecting the LRE, consideration must be given to any potentially harmful effect on the child or on the quality of services that the child needs

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Consent for Services Required

Informed consent from the parent of the student is required before providing special education and related services to the child.

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Consent for Services

Parental Refusal to Consent to Services: Under the IDEA, if the parent of a child

refuses to consent to services, the schools/school district cannot provide the services and a due process hearing CANNOT be brought to override the parents’ refusal to consent.

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Consent for Services

Revocation of Consent for Special Education and Related Services: A parent may revoke consent for special

education and related services in writing or orally. A parent’s oral revocation of consent should be memorialized in writing and a copy provided to the parent within five days.

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DisciplineSuspension: School personnel may remove a child with a disability who

violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).

School district does not need to provide services for the first 10 cumulative days of suspension during the school year.

A Manifestation Determination Review meeting need not occur before a special education student is suspended from school unless the suspension amounts to a change in placement.

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Discipline

Subsequent Suspension: School officials may suspend an IDEA eligible

student from school for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct so long as the removals do not constitute a “change in placement.”

SERVICES MUST BE PROVIDED during the suspension period BEGINNING ON THE 11TH CUMULATIVE DAY OF SUSPENSION during the school year.

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DisciplineManifestation Determination Review: A Manifestation Determination Review Team MUST

REVIEW: all relevant information in the student’s file, including the

child’s IEP; any teacher observations; AND any relevant information provided by parent[s]

TO DETERMINE: if the conduct in questions was caused by, or had a direct

and substantial relationship to, the child’s disability; OR if the conduct in question was the direct result of the

school district’s failure to implement the IEP.

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Discipline

IF EITHER OF THESE CONDITIONS IS MET, THE STUDENT’S CONDUCT MUST BE DETERMINED TO BE A MANIFESTATION OF THE CHILD’S DISABILITY.

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Discipline

A Manifestation Determination Review MUST occur for any change of placement of a child with a disability because of a violation of a code of student conduct.

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DisciplineIf the student’s conduct is determined to be a manifestation of his or her disability, the IEP Team MUST:

EITHER: Conduct a functional behavioral assessment unless one already has

been conducted before the conduct occurred and implement a behavioral intervention plan for the child; OR

If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behaviors.

AND Return the student to the placement from which the student was

removed, unless the parent and the school district agree otherwise, or unless the student has engaged in conduct allowing placement in 45-day interim placement.

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Discipline

Expulsion: IDEA authorizes the expulsion of an IDEA

eligible student from school (the removal of students from school for more than 10 consecutive school days) only after a Manifestation Determination Review Team determines that the student’s misconduct is unrelated to the disability.

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Discipline

45 School Day Removals: IDEA provides for the placement of a child

with a disability in an interim alternative educational setting for not more than 45 SCHOOL days in three circumstances: If the student carries or possesses a weapon; If the student knowingly possesses or uses illegal

drugs, or sells or solicits the sale of a controlled substance, or

If the student has inflicted serious bodily injury upon another person while at school.

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Discipline

45 School Day Removals: May be considered even if the child’s

behavior is a manifestation of the disability.

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Discipline

Non-IDEA Eligible Students are Protected by IDEA: A student who has not been determined to be

eligible for special education and related services and who has engaged in behavior that violates a code of student conduct, can assert any of IDEA’s protections if a school/school district had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

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Discipline School district is deemed to have knowledge that a

child is a child with a disability if – The parent of the child has expressed concern in writing

to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;

The parent of the child has requested an evaluation of the child; or

The teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.

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Discipline

No Knowledge: A school district shall not be deemed to have

knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant to IDEA or has refused services under IDEA, or if the child has been evaluated and it was determined that the child was not a child with a disability under IDEA.

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Eligibility for Services & Protection Against Discrimination Under the ADA and Section 504

Under Section 504, student must be determined, as a result of an evaluation, to have a “physical or mental impairment” that “substantially limits one or more major life activities.” 29 U.S.C. § 705(20)(B).

Broad scope

ADA Amendments Act 2008: act “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”

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ADA’s Definition of Disability A physical or mental impairment that

substantially limits one or more major life activities of such person, a record of such an impairment, or being regarded as having such an impairment.

Whether an impairment substantially limits a major life activity is to be determined without reference to the ameliorative effects of mitigating measures.

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“Major life activities” include, but are not limited to: Caring fore oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending Speaking Breathing Learning

Concentrating Thinking Communicating Working The operation of a

major bodily function, including but not limited to, the function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Reading

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Section 504, the ADA and IDEA Schools cannot discriminate against people, including

students, who are otherwise qualified to participate in school activities but are inhibited from participating to the same extent as a nondisabled person on the basis of a disability.

A student not found eligible under the IDEA may still be eligible for special education and services under Section 504 or the ADA.

However, students who are eligible for services under the IDEA will always meet the definition of eligibility for Section 504 and the ADA.