Presentation on theme: "Special Education Law Presented by: Jane R. Wettach"— Presentation transcript:
1 Special Education Law Presented by: Jane R. Wettach Clinical Professor of Law, Duke Law SchoolDirector, Duke Children’s Law Clinic
2 History of Discrimination Approximately 12 percent of children have disabilities that affect their ability to learnDisabilities range from mild to profoundHistorically, the most impaired were excluded from education altogetherSome (such as blind, deaf, mentally retarded) were segregated in special schools;Less impaired were in public school but were often retained in grade level, considered lazy or stupid, or dropped out of school because their needs weren’t met
3 Challenges to Discrimination & the Right to be Educated Early 1970’s – successful civil rights lawsuits brought on behalf of disabled children for inclusion in public schools1975 – first federal law promising states federal funds to assist in educating children with disabilities -- Education for all Handicapped Children Act (94-142)revisions to EHCA, including new name: Individuals with Disabilities Education Act2004 – most recent revisions to IDEA
4 Special Education Laws The Individuals with Disabilities Education Act – 20 USC 1400 et seq and 34 CFR Part 300Education of Children with Disabilities – NCGS 115C-106 et seqNorth Carolina Policies, issued by the Dept. of Public Instruction N.C. Policies Governing Services for Children with Disabilities
5 IDEA – The Basic Promise All children with disabilities are entitled toA “free, appropriate, public education”In the “least restrictive environment”Pursuant to an Individualized Education Program (IEP)
6 IDEA EntitlementsThe right to be evaluated, at public expense, to determine eligibility for special educationThe right to an Individualized Education Program that provides the specialized instruction and related services needed to allow the child to make educational progress
7 IDEA EntitlementsThe right to be educated, to the maximum extent possible, with typically developing peersThe right to access, to the maximum extent possible, to the general curriculum
8 IDEA EntitlementsThe right of parents to be involved in the decision-making process and the development of the IEPThe right to review of decisions made by the IEP team through due process appeal
9 Who is a “child with a disability”? Child (ages 3 – 21) must have an identified physical or mental dysfunction that interferes with educational performanceChild must need “specially designed instruction” to make educational progress (not just accommodations)
10 What is a “FAPE”? A “free, appropriate public education” is Special education (i.e., specially designed instruction to meet the unique needs of the child); andrelated services (supportive services designed to enable the child to benefits from instruction – such as transportation and specialized therapies)that allow the child to make reasonable educational progress.
11 What is a “FAPE”?“Educational progress” is not just academic learning, but includes –SocializationAdaptive/functional skillsLanguage and communicationReduction of behavioral problems
12 What is the “least restrictive environment”? The LRE is the setting in which children with disabilities may be educated with typical children to the maximum extent possible
13 Least Restrictive Environment Every child should be educated in the regular classroom, in the school he or she would attend if not disabled, with “supplementary aids and services.”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
14 Least Restrictive Environment Disabled child need not be placed in a regular classroom if:The child would not receive “educational benefit” from being educated in regular classroom; orThe marginal benefit of being educated in the regular classroom is outweighed by the benefits of a separate setting; orThe disabled child is a disruptive force in the regular classroom.
15 Special Education -- Eligibility Child must be “referred” to be evaluated for possible special education servicesA parent or teacher must make the referral. It must be –in writing, addressed to the principaldatedstate reason for referral in terms of lack of educational performanceThe school district has an obligation to identify children who may need special education, but parent should refer if there are concernsThe parents must agree for the evaluation to proceed.
16 Special Education -- Eligibility Initial evaluation is usually conducted by a school psychologist (but it can be contracted out)State policies set out required & recommended screenings & evaluations for each type of disability, as well as the criteria for eligibility in each category
17 Special Education -- Eligibility School has 90 days from date of referral to beginning of servicesIf parent believes school evaluation is incomplete or wrong, parent can ask for an independent evaluation at school expenseSchool must either pay for the evaluation, or file a due process petition to allow a judge to decide if school is obligated to pay
18 Special Education -- Eligibility After the evaluation is completed by the psychologist, eligibility is decided by a team of qualified personnel plus the parent, who review the testingParent may invite persons who have special expertiseMembers of the team consider all information and then determine if child fits into one of the 14 eligibility categories (shown on next slide)
20 The IEPEach eligible child must have an Individualized Education Plan (IEP), revised at least annuallyIEP is “blueprint” for the child’s free, appropriate, public education in the least restrictive environmentIEP must be written by a team of persons knowledgeable about the child and the child’s needs, including parents
21 The IEP Must be designed to meet child’s unique needs, and include: Current performanceMeasurable, objective annual goalsShort term benchmarks/objectives required for children who take alternate assessmentsA statement of the special education and related services, and supplementary aids and services to be providedAmount of special education to be providedAmount of related services to be providedClassroom and testing modificationsPlacement on continuum of settings
22 Follow up to IEPIEP is revised annually, or as often as needed, to assure that child is making progress on goalsChild is re-evaluated at least every three years, or more often if needed (but not more than once a year unless parent and school district agree)
23 Entitlement to FAPEA “FAPE” allows a child to make reasonable educational progress. For children with average cognitive skills, this generally means being taught the standard course of study, with appropriate supports & modifications, and passing from grade to grade.A “FAPE” does not require services to “maximize the potential” of the student
24 FAPE Progress should be measurable & measured. A parent has the right to ask for objective testing on a regular basis that reflects progress.A parent has the right to have periodic reports –as often as regular report cards go out -- of progress on IEP goals
25 Reasonable Progress Some ways to measure progress Grades, if student is in standard curriculumAchievement of annual goals (so long as those goals change from year to year and represent progressively more sophisticated skills)Improvement on standardized measures that compare student to nationally-normed standards
26 MethodologyAs a general rule, a parent does not have a legal right to demand a preferred teaching strategy or methodology. School personnel may choose the methodology to be used.Parents have the right to demand a methodology that works. A legal claim arises if the child does not make progress with the methodology chosen by the school personnel.
27 IEP TimelinesAfter parental consent for evaluation, determination of eligibility must be accomplished within 60 daysAfter determination is made that a child requires special education, an IEP must be developed within 30 daysIEP shall be implemented “as soon as possible” following the IEP meetingFrom referral to placement in appropriate program may not exceed 90 days
28 Private Services at Public Expense If the school district cannot provide services that allow a child to make reasonable educational progress, it must pay for those services to be provided privatelyIf the school district does not provide the services, a parent can unilaterally place the child in a private school and request reimbursement
29 Private Services at Public Expense If the parent unilaterally places his child in private school, he must:Give the school district at least 10 days notice that he finds the IEP unacceptable, plans to place his child in private school, and demands tuition reimbursementIf the school district declines, parent must file a due process petition and prove that the child’s proposed IEP did not offer a FAPE and that the private school chosen was appropriate for the child
30 Discipline & Special Ed Students Disabled children are treated as “regular ed” students if they are suspended for fewer than 10 days (cumulative in a year) (i.e., no protections, no recourse)Disabled children have additional rights for suspensions of more than 10 days (cumulative in a year, if suspensions form a pattern)
31 IDEA Discipline Protections Students with IEP’s are entitled to these protections:Manifestation Determination ReviewFunctional Behavior AssessmentBehavior Intervention PlanContinuation of FAPE
32 Manifestation Determination Review Before a disabled child can be suspended for more than 10 days, there must be a “manifestation determination review”Relevant members of the IEP team shall determine whether the conduct in question was—Caused by or had a direct and substantial relationship to the child’s disability, ORA direct result of the LEA’s failure to implement the IEP
33 Manifestation Determinations No manifestation: proceed with suspension,BUT continue with FAPE in an alternative settingManifestation: no suspension allowed,BUT services & placement can be reviewed and changedMDR results are appealableBut no “stay-put protection”; child stays in alternative setting pending the appeal
34 “Interim Alternative Educational Setting” Regardless of whether behavior is a manifestation, a student may be removed to an “interim alternative educational setting” for 45 school days if the studentBrought drugs or weapons to schoolCaused serious bodily injuryWhile in interim alternative educational setting, student should be able to have access to the general curriculum and make progress on IEP goals.
35 Functional Behavior Assessments If appropriate, the school should engage in a functional behavior assessment (FBA)of the disciplined studentFBA is a process designed to better understand the child’s behaviorWhat are the offensive behaviors?How often and in what context do they occur?What triggers bring on the behavior?What is the underlying function of the behavior?What are potential replacement behaviors that will accomplish the same function?
36 Behavior Intervention Plan A BIP is a plan that is designed, based on the information gained in the FBA, toReduce the likelihood of the offensive behaviors occurringIdentify behavioral supportsStructure the steps to be taken when offensive behaviors occur (redirection, change environment, etc.)Identify consequences
37 Continuation of FAPESpecial education students have the right to continued education during their period of suspensionThey must be able toContinue to participate in the general education curriculum, although in another settingProgress toward meeting their IEP goals
38 Problem resolution under IDEA Informal resolutionMediationDue process appealState complaint
39 Informal resolutionConferences with teacher, principal, service providers, special education administratorsIEP meetingsFacilitated IEPmeetings
40 Facilitated IEP meetings DPI will provide a facilitator for an IEP meetingNo cost to parentsForm to request on DPI (EC Division) website (Facilitation request)May help parent have and take opportunity to contribute to the meetingMay help school personnel to take parental information into account
41 Special education mediation A process offered free to parents and school systems, administered by the state dept. of educationA focused discussion, facilitated by a mediator, designed to bring parents and school personnel in a dispute to an agreementRequest mediation
42 Special education mediation Voluntary on both sidesConfidential – what people say cannot be brought up in due process hearing or court (such as offers to settle in a certain way)Ends either without an agreement or with a written mediation agreement that is enforceable in court
43 Due Process AppealAdministrative hearing conducted by state administrative courtFormal, trial-like process with witnesses and documentary exhibitsBest for resolving significant differences of opinion about whether child is getting a FAPE in the LRE.Judge can order compensatory services, reimbursement, future services, but not money damages
44 For legal help, contact: Children’s Law ClinicDuke Law SchoolFree legal advice and representation for low-income families living in an 11-county region around Durham, NC