lauren p. nero general counsel [email protected]
TRANSCRIPT
Free and appropriate public education (FAPE)
• The Individuals with Disabilities Education Act (IDEA) first passed it in 1975
• Supreme Court decision (Board of Ed. v. Rowley)• IDEA requires proposed special education and
related services to be “reasonably calculated to enable [the student] to receive educational benefits.”
• a student must receive “some benefit”• IEPs must be individualized
IDEA
• least restrictive environment. That means schools must teach students with disabilities in general education classroom whenever possible.
• To give parents a voice in their child’s education. Under IDEA, parents have a say in the educational decisions the school makes about your child. At every point of the process, the law gives parents specific rights and protections.
• IDEA covers kids from infancy through high school graduation or age 21 (whichever comes first)• LEA responsible for ages 3-21
Other Important Supreme Court Decisions
• Parents entitled to prosecute IDEA claims on own behalf
• State Agencies (DCFS, DOE) can sue districts and pursue other legal remedies necessary to fulfill their duty to advocate for people with disabilities
How Does IDEA work?
• The First Step to Access Services Under IDEA: An Evaluation
• The school should conduct a thorough evaluation if it suspects a child has a disability. The evaluation not only determines if a student has a disability. It also sheds light on what services and support that student might need. Find out how the evaluation process works.
• The Next Step: Getting an IEP
• If an evaluation shows that a student is eligible for special education, parents work with a school team to develop an Individualized Education Program (IEP). An IEP is a legal document that spells out a child’s educational goals, disabilities and the services and support that the school will provide.
3 types of IEP
• Initial IEP (never received Sped services Before)
• Review IEP – revised annually
• Interim IEP – developed while eval is being conducted for students with severe or low incidence impairments- also used for students who have IEPS in another state
IEPs
• Meeting must be held annually, may be held more often
• Must have parental consent before effective
• Student’s consent needed upon age 18
• Participants: The LEA must ensure there is attendance by an officially designated representative of the system, the student's regular education and special education teachers, the parents, and the student, as appropriate
IEPs
• Must be written before special educational and related services are provided to an eligible student with disabilities.
• The IEP must be implemented within ten (10) calendar days following the IEP team meeting.
• The IEP is developed using a format approved by the State Department found on the following pages.
IEPS
• Based on information obtained from General Student Information, the special ed services may be offered in the following areas: • ACADEMIC/COGNITIVE needs in the academic areas such as
reading, math, social studies, and/or in the cognitive needs such as generalization, categorization, etc.
• BEHAVIOR needs of the student when his or her behavior impedes learning or the learning of other students.
• COMMUNICATION needs of the student in understanding and communicating with others, such as writing and language development, articulation, augmentative/adaptive methods, etc.
• MOTOR needs may include fine and gross motor movement, such as handwriting and walking, etc.
• SELF-HELP needs may include toileting, dressing, safety, health needs such as self-catheterization, insulin maintenance, etc.
• SOCIAL needs may include peer interaction, strengthening self-concept, etc.
• VOCATIONAL needs may include preparation for employment, such as work- study, career awareness, etc.
Leap alternate assessments
• LAA 1- performance based and usually tests student’s level based on functional skills
• Usually not working toward diploma?
• LAA 2- for students with persistent academic disabilities
• May be working toward high school diploma
The Rehabilitation act of 1973
• Addresses discrimination against people with disabilities• Section 501: employment of handicapped
individuals• Section 502: Architectural and Transportation
Board Compliance• Section 503: Employment under federal
contracts• Section 504: Discrimination under Federal
Grants
Section 504
“No otherwise qualified handicapped individual in the US shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
What is “Handicapped” under 504?
• Any person who • (1) has a physical or mental impairment which
substantially limits one or more of such person’s major life activites
• (2) has a record of such an impairment• (3) is regarded as having such an impairment
• Major life activity: self care, performing manual tasks, seeing, hearing, speaking, breathing, learning, walking
Discipline and sped• For disciplinary actions lasting 10 school days or less:
• A student with a disability who has an IEP in effect can be disciplined like any other student who violates the school code of conduct.
• During the time the student is in the disciplinary setting, the school is not required to provide any educational services (including special education) to the student, unless the school district provides educational services to non-disabled students in the same circumstances.
• Parents may request that the school continue educational services for the student during the time of the disciplinary action or somehow allow the parent to facilitate the student’s completion of school work. While the school is not required to grant such requests, many will agree so that the student doesn’t fall behind.
Students
• Can be removed for not more than 10 consecutive school days in same school year for separate incidents of misconduct (as long as doesn’t constitute change in placement)
• For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the student’s disability, school personnel may apply the same disciplinary procedures to students with disabilities in the same manner and for the same duration as the procedures would be applied to students without disabilities provided that all required educational and related services continue. The student’s IEP team determines the interim alternative educational setting for such services.
Students
• Once a child with a disability has been removed for 10 days in a school year, the child must be provided educational services during any subsequent terms of removal
Change of Placement due to Disciplinary Removals
• A removal of a student with a disability from his or her current educational placement is a change of placement if: • The removal is for more than 10 consecutive school days;
or
• The student has been subjected to a series of removals that constitute a pattern because:
• The series of removals total more than 10 consecutive school days in a school year;
• The student’s behavior is substantially similar to behavior in previous incidents that resulted in the series of removals; and
• c. Of such additional factors as the length of each removal, the total amount of time the student has been re- moved, and the proximity of the removals to one another.
• Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by the LEA, and, if challenged, is subject to review through due process and judicial proceedings.
Manifest Determination• Completed when considering the exclusion of a student with a
disability that constitutes a change of placement.
• Law changed in 2004. These changes make it more difficult than was previously the case to establish a connection between disability and behavior, and to reach a conclusion that the behavior resulted from the disability. The decision reached in the manifestation determination is important because it will influence what can happen to the student’s continued services and placement.
• In making the manifestation determination, the team (comprised of school personnel, the student’s parents, and other relevant members of the student’s IEP team) will review:• The student’s IEP• The student’s behavior intervention plan• Any teacher observations• Any relevant information provided by the parents
Manifest Determination
• Within 10 school days of any decision to change the placement of a student with a disability because of a violation of the code of student conduct, the LEA, you, and relevant members of the IEP team shall review all relevant information in the student’s file to determine: • If the conduct in question was caused by, or had a direct and
substantial relationship to the student’s dis ability; or • If the conduct in question was the direct result of the LEA’s failure to
implement the student’s IEP.
• If the LEA, you, and relevant members of the student’s IEP team determine that either of those conditions was met, the conduct must be determined to be a manifestation of the student’s disability.
• If the LEA, you, and relevant members of your child’s IEP team determine that the conduct in question was the direct result of the LEA’s failure to implement the IEP, the LEA shall take immediate steps to remedy those deficiencies.
Manifest Determination
• If it is determined that the conduct was a manifestation of the student’s disability, the IEP team shall: • 1. Conduct a functional behavioral assessment (FBA),
unless the LEA had conducted an FBA before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan (BIP) for the student; or
• 2. If a BIP already has been developed, review the BIP, and modify it, as necessary, to address the behavior.
• Except as described below under Special Circumstances, the LEA must return the student to the placement from which he or she was removed, unless you and the LEA agree to a change of placement as part of the modification of the BIP.
Special circumstances
• Certain offenses can lead to a student being moved to an interim alternative educational setting for up to 45 school days even if the conduct is determined to be related to the student’s disability.
• Weapons: If a student carries or possesses a weapon:• On the way to or at school, On school premises,
At a school function • Drugs: If the student knowingly possesses or uses
illegal drugs or sells or solicits the sale of illegal drugs:• While at school or At a school function
• Serious bodily injury: If a student has inflicted serious bodily injury upon another person:• While at school, On school premises, At a school
function
Referral to and Action by Law Enforcement and Judicial Authorities
Nothing in these regulations prohibits the LEA from reporting a crime committed by a student with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state laws to crimes committed by a student with a disability
Court’s Role
• Courts have stated that Manifest Determination process should take into account the whole student, not just the label
• Student doesn't’t have to be classified as emotionally/behaviorally disorderd for a behavior to be related to the disability (frustration ,etc.)
Behavior not related to disability
• School can use discipline policies that are applied to non-disabled students
• May included exclusion in form of suspension and expulsion • FAPE must continue to be provided