THE NUTS AND BOLTS OF FEDERAL SPECIAL EDUCATION LAW

NAMI 2008

DAWN R. SMITH, ESQ.

THE INDIVIDUALS WITH DISABILITIES IN EDUCATION ACT

(“IDEA”)

• Two guarantees for eligible children with disabilities:

A free and appropriate public education

In the least restrictive setting

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WHO IS AN ELIGIBLE CHILD WITH A DISABIITY?

• A child evaluated as having -- mental retardation a hearing impairment (including deafness) a speech or language impairment a visual impairment (including blindness) a serious emotional disturbance an orthopedic impairment autism traumatic brain injury an other health impairment a specific learning disability

AND . . . NAMI 2008

WHO, BY REASON THEREOF NEEDS SPECIAL EDUCATION AND RELATED SERVICES

DISABILITY

+

NEED FOR SPECIAL EDUCATION SERVICES

= IDEA ELIGIBLE CHILD

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SPECIAL EDUCATION SERVICES

• . . . specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability…

This includes:• “(A) instruction conducted in the classroom, in the

home, in hospitals and institutions, and in other settings; and

• “(B) instruction in physical education”

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SPECIALLY DESIGNED INSTRUCTION

Adapting as appropriate to the needs of a child, the -

Content Methodology Delivery of instruction

To meet the unique needs of the child and to ensure access to the general curriculum so that the child can meet the educational standards that apply to all children.

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RELATED SERVICES

Include:• interpreting services• speech-language pathology and audiology services• psychological services• physical and occupational therapy• recreation, including therapeutic recreation• counseling services, including rehabilitation counseling• orientation and mobility services • medical services for diagnostic or evaluation purposes• school health services and school nurse services• social work services in schools• parent counseling and training

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Evaluation

• Schools are responsible for ensuring that a child suspected of having a disability is provided “a full and individual evaluation in all areas of suspected disability”

• Evaluations are the basis for conferring special education eligibility and creating an appropriate educational plan for the child.

• Assessment used must accurately reflect the child's aptitude or achievement level, or whatever other factors the assessment purports to measure, rather than reflecting the child's impairment.

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An evaluation must…

• …be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been classified.

• If you can’t create an IEP with the evaluation, its most likely not appropriate

• Evaluations provide the data that will determine eligibility.

FAPE

• The state must provide a free and appropriate public education (“FAPE”) to all eligible children with disabilities residing in the state between the ages of 3 and 21, including: children with disabilities who have been expelled

from school; children with disabilities who are advancing grade

to grade.

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WHAT IS FAPE?

• F = free

• A = appropriate

• P = public

• E = education

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What is an IEP?

• Individualized education program. The term "individualized education program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes— Present levels of performance Annual Goals and Objectives Related Services and Supplementary Aids and Services

plus modifications that are appropriate and allow participation in the general curriculum as well as with non-disabled peers

an explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and in the activities

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The IEP

• The IEP is developed by a team of teachers, parents, professionals with information about the child.

• Based on current and appropriate information about the student.

• The Team includes meaningful parent participation.

• The Team is responsible for monitoring progress and reconvening as needed.

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Components of an IEP

• Present Levels of Performance

• Goals & Objectives

• Special Considerations

• Related Services

• ESY

• Assistive Technology

• Modifications

• Testing Accommodation

• LRE/Placement

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IEP and Social/Behavioral Issues

• Education INCLUDES social and behavioral domains

• Most States have mandated the system-wide use of positive behavioral supports

• PBIS, on an individual basis, should be integrated into the IEP of a child with behavioral challenges

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PBIS and ABA in IDEA

• An LEA must “consider the use of positive behavioral interventions and supports” for a child with behavioral issues in a behavior intervention plan

• When a child is removed from their placement following a behavioral problem the school must provide a “functional behavioral assessment, and behavioral intervention services and modifications” designed to address the behavior so it does not happen again

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SCHOOL DISCIPLINE

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Do the Special Education Rules Apply?

• Child is already in special education program• Child is suspected of having a disability

The Parent has expressed concern in writing to the school

An evaluation has already been requested A teacher of the student has expressed specific

concerns about specific pattern of behavior to SPED director or appropriate supervisor

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Authority of Administrators

• Removal from educational setting 10 day Rule Cumulative vs. Consecutive vs. Pattern In – School Suspension

• Interim Alternative Educational Setting For up to 45 days At all times must provide FAPE Can be renewed by administrators/IEP Team

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Manifestation Determination

• Within 10 days of a change in placement, the IEP Team convenes to determine Whether the conduct in question, “was caused by,

or had a direct and substantial relationship to” the student’s disability OR

If the conduct was “a direct result of the failure of the LEA to implement the IEP.”

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If a relationship exists…

• IEP Team must address behavioral issues by creating or modifying behavior intervention plan

• If no BIP, IEP should start Applied Behavior Analysis to determine interventions

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If no relationship exists…

• Student may be disciplined as a regular education student EXCEPT…

• At no time may the child be placed in a setting that can not implement the components of the IEP; and

• The child must continue to receive a free, appropriate public education (FAPE)

SPECIAL CIRCUMSTANCES

• School Personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to manifestation, in cases where the child: Carries a weapon to school, on school premises, or

at function ; or Knowingly possesses or uses illegal drugs or sells

drugs on school premises: or Has inflicted serious bodily injury.

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TRANSFER OF RECORDS

• A LSS/SOP reporting a crime committed by a student with a disability shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities to whom it reports the crime.

§ 504 vs IDEA

• § 504 is a civil rights law designed too level the playing field – eliminating barriers vs. remedial

• § 504 is largely unfunded, thus frequently ignored by school districts

• § 504 eligibility broader than IDEA

• Physical or mental disability which “substantially limits” one or more major life activities.

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EXAMPLES-PROTECTED BY §504 AND NOT IDEA

• students with communicable diseases (i.e., hepatitis);

• students with temporary disabilities arising from accidents who may need short term hospitalization or homebound recovery;

• students with allergies or asthma; • students who are drug addicted or

alcoholic, as long as they are not currently using illegal drugs

• students with environmental illnesses.NAMI 2008

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Resources on the Web

• Wrightslaw - www.wrightslaw.com A good starting point for special education law. Website hosted by special education attorney Pete Wright. Good practical guides and some legal research available.

• IDEA Practices http://www.ideapractices.org US Department of Education grantee website providing information about special education laws and regulations. Site also contains Topic Briefs from Office of Special Education Programs (OSEP).

• Center for Law and Education http://www.cleweb.org General information about education law. Several topical papers on children with disabilities in public schools.

• Council for Children with Behavioral Disorders (CCBD) http://www.ccbd.net/ Information specifically children diagnosed with a behavioral disorder. Site contains information about advocacy for the child with a BD.

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Web Resources (con’t)

• National Center on Education, Disability & Juvenile Justice http:// www.edjj.org Contains statistics, policy data, and legal information regarding disabled youth and the juvenile court. Good resource for statistical information about this population in the publications section.

• U.S. Department of Education http://www.ed.gov Federal Department of Education website.

• U.S. Department of Education - Office of Civil Rights http://www.ed.gov/about/offices/list/ocr/index.html?src=mr Federal Department of Education, Office of Civil Rights Website which contains links to the formal complaint procedures for OCR.

• LD Online - http://www.ldonline.org/ Provides information for evaluation, educational programming, and service provision for persons with specific learning disabilities. Good resource for research and IEP planning.