SPECIAL EDUCATION LAW

SPECIAL EDUCATION LAW BUILDING BLOCKS & BASICS Sallie Lynagh Disability Rights Network of PA

Applicable Law • The PARC Consent Decree • Section 504 of the Rehabilitation Act of 1973 • The Individuals with Disabilities Education Act, or IDEA • Pennsylvania’s Chapter 14 • The Americans with Disabilities Act • Relevant Cases, e.g. Oberti, Gaskin

IDEA: The Entitlement • The Individuals with Disabilities Education Act entitles disabled children ages 3-21 to a free, appropriate public education (FAPE), which includes “special education,” “related services,” and “transition services” in the Least Restrictive Environment (LRE).

Special Education Specially designed programs that: • are provided at public expense • meet state educational standards • include an appropriate pre-school, elementary, and secondary education; • are provided in conformity with an Individualized Education Program (IEP).

speech/language psychological services physical/ occupational therapy recreation/therapeutic activity early identification and assessment counseling services orientation and mobility services school health services social work services parent counseling and training transportation medical services for diagnostic and evaluation purposes Related Services:

Transition Services • Defined as a coordinated set of activities for a student that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment, (including supported employment), independent living, and community participation. • In PA, transition planning begins @ age 14

Least Restrictive Environment LRE requirement mandates that: • To the maximum extent appropriate, children with disabilities are educated with children who are nondisabled; and • 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.

mental retardation/ developmental delays hearing impairments speech or language impairments visual impairments serious emotional disturbance orthopedic impairment autism traumatic brain injury specific learning disabilities multiple disabilities other health impaired Who is Disabled Under IDEA?

Evaluation Referral Process • A child “thought-to-be” disabled should be referred for an evaluation. • A referral, in writing, can be made by a parent, teacher, or other service provider. • The referral, delineating specific areas of concern, should be sent to the child’s school principal. KEEP A COPY.

The Evaluation Plan • The local education agency (LEA) should issue a Permission to Evaluate Form to the parent that explains each type of assessment to be conducted. The LEA has 60 calendar days, not counting summer break, from receipt of the signed permission to evaluate to complete the evaluation process. The parent may request a face-to-face evaluation meeting.

The Evaluation Report (ER) • A statement of whether the child needs special education services; • the basis for the determination; • relevant behavior noted during observation of the child; • relationship of observed behavior to child’s academic and social functioning;

The Evaluation Report (cont.) • educationally relevant health and development information, including medical findings; • for LD children, NO LONGER REQUIRED TO CONSIDER DISCREPANCY BETWEEN ACHIEVEMENT AND ABILITY • assessment of the effects of cultural, environmental or economic factors.

Individualized Education Program (IEP) • Developed within 30 days of evaluation report. Team must include: • LEA representative • child’s special education teacher • child’s regular education teacher • parent(s) • an individual who participated in the assessment & determined the child eligible • the child, if plan will include transition services

IEP TEAM ATTENDANCE • If the IEP team member’s area of expertise not being discussed/modified, team member need not attend if parent and school agree. • If IEP team member’s area is being discussed/modified, the IEP team member may be excused if parent and school agree in writing and if member’s written input submitted prior to the meeting.

IEP Development I. Special Considerations II. Present Levels: Academic + Functional III. Student Transition Services IV. Participation in State/Local Assessments V. Goals and Objectives VI. Special Education / Related Services / Supplementary Aids and Services / Program Modifications VII. Educational Placement VIII. Penn Data/Least Restrictive Environment

LRE in Caselaw Oberti v. Board of Education (3rd Circuit, ’93) • The school district must consider “the full range” of supplementary aids and services during the development of the IEP. • Four specific supplementary aids and services the school district must consider: Curriculum modification Teacher training Behavior support Instructional assistant

Prior Written Notice: • Must be given to the parents of a child with a disability a reasonable time before the public agency—Proposes or refuses to initiate or change the identification, evaluation, or placement of the child or the provision of FAPE to the child. • Content: A description of the action proposed or refused; an explanation of why; evaluations, etc. that serve as the basis; a statement of protections; sources of assistance; a description of other options considered; a description of other relevant factors.

IDEA and Chapter 14 DISCIPLINARY PROVISIONS

Behavior: Consideration of Special Factors in Drafting the IEP The IEP Team shall, in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.

Disciplinary Change in Placement Exclusion of a student w/ a disability: • More than 10 days consecutively; or • More than 15 days cumulatively; or • When days 11-15 constitute a pattern of exclusion; or • An exclusion of even one day for a student with mental retardation.

Prior to a change in placement: • Written notice must be issued to the parent. If family disagrees, the exclusion cannot take place at that point…”Stay Put Rule” • Manifestation Determination must be conducted by the IEP Team to determine if the student’s misconduct was caused by, or was in direct and substantial relationship to, the child’s disability OR was a direct result of the LEA’s failure to implement the IEP.

Functional Behavioral Assessments & Behavioral Intervention Plans If the behavior was a manifestation: The IEP Team shall conduct a functional behavioral assessment and implement a behavioral intervention plan for the child; or If the child already has a plan, the IEP Team shall review and modify it, as necessary to address the behavior.

Provision of FAPE For removals of more than 10 school days, when behavior was not a manifestation of disability, FAPE must be provided but may be provided in an interim alternative educational setting. For students w/ MR: Services from Day 1

Exceptions to Expulsion Rules • Unilateral removal for drugs, weapons, and serious bodily injury violations, whether or not a manifestation of disability, can be for up to 45 school days to interim alternative educational setting. • Parent must be notified with PSN, FAPE must be provided, Manifestation Determination conducted, Functional Behavioral Assessment, Behavior Intervention Plan.

Serious Bodily Injury Defined • A bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or faculty.

Exceptions to Expulsion Rules • Dangerous Behavior: If school personnel wish to change a child’s placement because of dangerous behavior that is a manifestation of that disability, and the parents dispute the proposal, the school may seek permission from a hearing officer to place the child in an alternative interim educational setting for up to 45 days.

Hearing Officer must find that: • The school system has demonstrated that keeping the child in the current placement is likely to result in harm to that child or others; AND • the school system has made reasonable efforts to minimize the risk of harm; AND • the alternative interim educational setting meets statutory requirements.

How to Resolve Disagreements Informally • Talk with child’s teachers or other school staff • Write to the principal and request an appropriate meeting (evaluation report review, IEP meeting, etc.) • Ask the school to agree to an IEP Facilitation (ODR)

How to Resolve Disagreements Formally • Division of Compliance Complaint: • Legal Violations • Form • Mediation: • Free • Voluntary • No lawyers • Due Process Hearing: • Usually lawyers (LEA must have one) • Due Process Complaint Notice • Resolution Session

If you need more help: • DRN’s website: www.drnpa.org • DRN’s intake number: 1-800-692-7443 • Sallie Lynagh: slynagh@drnpa.org or 1-800-390-1279

SPECIAL EDUCATION LAW