Presentation on theme: "Advancing the Rights of Marylanders with Disabilities. 1800 N. Charles Street; Suite 400 Baltimore, MD 21201 410.727.6352 1.800.233.7201 www.mdlclaw.org."— Presentation transcript:
Advancing the Rights of Marylanders with Disabilities. 1800 N. Charles Street; Suite 400 Baltimore, MD 21201 410.727.6352 1.800.233.7201 www.mdlclaw.org
Special Education Law and the Rights of Students Involved in the Juvenile Justice System in Maryland Maryland Disability Law Center October 2010
Who is MDLC? 4 Maryland Disability Law Center is a non-profit organization of lawyers and paralegals dedicated to protecting the rights of people with disabilities. 4 Provides free legal services and advice 4 See our website for more information: www.mdlclaw.org www.mdlclaw.org 4 Call our special education intake line Monday through Friday between 10am and noon to seek information or legal help for a child with a disability.
Students with Disabilities Involved with DJS 4 Students with disabilities make up about 12% of the student population in Maryland. 4 Yet, national studies have shown that up to 30% to 50% of youth involved in the juvenile justice system have special needs.
The connection between school performance and delinquency 4 Youth with educational difficulties have a heightened risk of behavior problems. 4 Youth in custody have a high nonenrollment rate (21%) at the time they enter custody, more than four times the rate of peers in the general population (5%). 4 Nearly one-half (48%) of youth in custody are currently functioning below the grade level appropriate for their age, compared to 28% of youth in the general population. (Juvenile Justice Bulletin, OJJDP, April 2010).
How can special education issues impact a delinquency case? 4 Use special education issues to help the juvenile delinquency case 4 Use special education issues to impact placement once a juvenile is adjudicated 4 Identify special education issues that warrant referral to an outside agency, such as MDLC 4 Identify current school discipline issues that warrant representation 4 Identify post adjudication special education issues
Same Right to Services 4 Student with disabilities who are involved with DJS have the same right to services as any other student no matter where they are placed. 4 Students with disabilities placed in a DJS detention facility or youth center are entitled to special education and related services pursuant to their IEPs.
Youth in Adult Correctional Facilities 4 Incarcerated youth still have the right to special education and related services while in an adult facilities, such as a county jail or a state adult facility. 4 Exception: Youth in adult facilities between the ages of 18 to 21 who have not been previously identified as eligible are not entitled to services.
Barriers to Services 4 Failure to screen, identify and evaluate youth suspected of having a disability. 4 Delays in accessing school records or records are incomplete. 4 Parents or guardians are not involved in the special education process. 4 Services, such as related services or supplementary aids and services, may be provided based on what exists at the facility rather than what the youth needs. 4 The use of seclusion, segregation or other behavior issues may disrupt access to educational services. 4 Access to the general education curriculum may be limited. 4 Transition between placements may lead to gaps in services.
The Relevant Laws 4 Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq. 4 Section 504 of the Rehabilitation Act, 34 C.F.R. Part 104 4 Code of Maryland Regulations, COMAR 13A.05.01
What is FAPE? Federal and state law guarantees a “free and appropriate public education” to all eligible children with disabilities.
FREE 4 At no cost to the parent. 4 Schools may bill Medical Assistance for services such as counseling or physical therapy if: parent consents; it is at no cost to the parent; it does not result in a decrease in lifetime coverage.
APPROPRIATE 4 Educational services must be designed to meet the individual needs of the child. 4 The IEP (Individualized Education Program) sets forth what services the child will receive in order to benefit from his/her education.
PUBLIC 4 The public school system must: –Provide an appropriate education at a public school, or –Arrange for it to be provided through a non- public school.
EDUCATION 4 Special education means specially designed instruction: –The content, methodology, or delivery of instruction has been adapted to meet the unique needs of the student. –Allows the student to have access to the general curriculum. 4 Includes Related Services
“Child Find” 4 All schools, including those inside DJS facilities, have an obligation to identify, locate, and evaluate all students who have a suspected disability.
Eligibility 4 Who is Eligible for Special Education Services? Children with disabilities, from birth to 21. Because of their disability, they need special education and related services. 4 Who Decides? The IEP team determines eligibility. –(IEP means Individualized Education Program)
Disabilities 4 Intellectual disability 4 Emotional disability 4 Learning disabilities 4 Autism 4 Hearing impairment 4 Visual impairment 4 Physical disabilities 4 Traumatic brain injury 4 Speech or language impairment 4 Multiple disabilities 4 Deaf-blindness 4 Other health impaired (including ADHD and Tourette’s Syndrome, among other health conditions) NOTE: A student with a developmental delay within the age range of 3 through 9 years old may also be eligible.
Who Makes Up the IEP Team? 4 Parent(s) 4 A regular education teacher 4 A special education teacher 4 A representative of the school system who knows about special education, the general curriculum, and the availability of resources
IEP Team (cont.) 4 A person who can interpret the assessment results. 4 Other individuals at the discretion of the family and the school who have knowledge about the child. 4 The student if appropriate. Meeting and attendance requirements have been modified to permit people to attend meetings only when they are directly relevant to the meeting and to allow IEP revisions without meetings if parent consents.
Who Is a Parent under the IDEA? 4 A biological or adoptive parent 4 A guardian 4 A person acting as a parent of a student, including a grandparent, stepparent, or other relative with whom the child lives, or an individual who is legally responsible for the child’s welfare 4 A foster parent if granted limited guardianship for educational decision–making purposes by the court 4 A surrogate parent [20 U.S.C. § 1401 (25)] [34 C.F.R §300.30]
Parent Surrogates 4 Under federal law, juvenile courts now have authority to appoint an education surrogate parent. 4 A surrogate must be appointed whenever the parents of the child are not known; after reasonable efforts, the parent cannot be located; or the child is a ward of the State. 4 The surrogate parent cannot be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child. 4 A school system must make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determination that the child needs a surrogate.
Referral to the IEP Team 4 Children are usually first referred to an IEP team by parents, teachers, doctors, or other professionals. 4 The purpose of the referral is to determine whether the student needs additional assessments.
When a Parent Requests an Evaluation –Requests for a special education evaluation should be made in writing. –Parents can request a special education evaluation while their child is in a detention facility or other DJS placement. –Youth in detention centers can undergo an array of assessments, including psychological, psychiatric and educational evaluations. –Parents should consider sharing any outside evaluations that they may have that would support the need for special education services.
The Evaluation Process 4 The initial evaluation must be completed within 60 days from parental consent and within 90 days from the date of the written referral and includes: An initial meeting with the IEP team to review existing information on the child and determine if assessments are necessary Completion of assessments within 60 days A follow-up IEP meeting to review assessment results
Assessments 4 Must: ► be in the area of the suspected disability. ► be consented to by the parents. ► use a variety of tests and procedures. ► be performed and interpreted by professionals. ► be done in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally and functionally.
Special Rule for Learning Disabilities 4 When determining whether a child has a specific learning disability, the school system is not required to consider whether the child has a severe discrepancy between achievement and ability in oral and/or written expression, listening and/or reading comprehension, and mathematical calculation and/or reasoning. 4 The school system may use a process that determines if the child responds to scientific, research-based intervention– also referred to as Response to Intervention (RTI).
Emotional Disability A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance: (a)An inability to learn which cannot be explained by intellectual, sensory or health factors; (b)An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; 4 (c)Inappropriate types of behavior or feelings under normal circumstances; 4 (d)A general pervasive mood of unhappiness or depression; or 4 (e)A tendency to develop physical symptoms or fears associated with personal or school problems. 4 (II) The term includes children who are schizophrenic. The term does not include children who are socially maladjusted, unless it is determined that they have an emotional disturbance. 4 Cite: 34 C.F.R. § 300.8(c)(4)
Assessment Review 4 The IEP team meets to review the assessment results and to consider the results of evaluations by outside agencies. 4 Parents are entitled to copies of the assessments and should request copies prior to the IEP meeting.
Assessment Review (cont’d) IEP Team Determines: 4 Whether the child has or continues to have a disability and needs special education and related services. 4 The present levels of performance and educational needs. 4 Modifications needed to enable the child to meet annual measurable goals and to participate, as appropriate in the general curriculum.
Re-Evaluations 4 Should occur at least every three years. 4 IEP team reviews the IEP and determines the need for new assessments. 4 If the team determines that no new assessments are needed, it must notify the parents. 4 The parents can request new assessments.
Independent Evaluations 4 Parents may disagree with the assessment results and/or the decision of the IEP team regarding eligibility. 4 If parents disagree, they can request that the school system pay for an independent evaluation. 4 If the school system refuses, it must put its reason in writing and is required to file for a due process hearing.
The IEP 4 The IEP is a document that describes the special education and related services that the child is to receive. 4 Within 30 days from the evaluation meeting, the IEP team must meet to develop the IEP. 4 The school system must implement the IEP as soon as possible after the meeting. 4 An IEP meeting must be held at least once a year to review the child’s progress and the IEP.
IEP Checklist 4 Current levels of academic and functional performance 4 Academic and functional annual goals and short-term objectives 4 Related services 4 Supplemental aids, services, modifications –Includes program modifications and staff supports that are provided in education- related settings and extracurricular and nonacademic settings in order to allow the student to be educated with nondisabled peers to the maximum extent appropriate. This underutilized provision helps to individualize the IEP and gives teachers/providers assistance in meeting the needs of the student. 4 Measuring Progress 4 Programs/activities with regular education students
IEP Checklist (cont.) 4 Amount of special education 4 Behavior programs 4 Assistive technology 4 Transition services Under MD law, transition planning begins at 14. 4 Extended school year services (ESY) 4 Adapted physical education 4 Health concerns
Related Services 4 Transportation 4 Speech pathology 4 Audiology 4 Psychological services 4 Physical and occupational therapy 4 Social work services 4 Medical, school health services and school nurse services
Related Services (cont.) 4 Rehabilitation services 4 Parent counseling and training 4 Counseling 4 Assistive technology devices or services 4 Orientation and mobility services 4 Interpreting services 4 RELATED SERVICES MUST BE: –Specified in the IEP, including the type, amount and frequency.
Developing a Behavior Intervention Plan (BIP) 4 A Functional Behavior Assessment (FBA) is an integral part of developing an effective behavior plan. 4 The FBA is a systematic process for identifying and describing challenging behavior exhibited by a student, determining the functions of the behavior, and identifying the environmental and other settings that contribute to or predict the occurrence, non-occurrence, and maintenance of the behavior over time.
Placement 4 The IEP determines where the student will be placed in order to implement the IEP. 4 School systems must maintain a continuum of placement options.
Placement in the Least Restrictive Environment (LRE) 4 Students with disabilities must be educated with non- disabled peers to the greatest extent possible. This is called the least restrictive environment (LRE) for the student. 4 Inclusion means that the student is truly a part of the general education program and participates in general education classes with students without disabilities. The word “inclusion” does not appear in the law. 4 Schools must provide supplementary aids and services to allow a child to stay in the least restrictive environment.
Range of Placement Options 4 From least restrictive to most restrictive: Regular classroom in a neighborhood school. Some time in a “resource” room. More than half the day in a “resource” room. A self-contained class in a regular school. A self-contained class in a separate public school. A self-contained class in a non-public school. A residential facility. Home and hospital instruction. It is possible to combine options and have students spend some time in a self-contained class and some time in general education, or some time in a regular school and some time in a separate school, for instance.
Non-Public Placements 4 If the school system cannot find an appropriate public placement, then the school system must pay for the child to attend a non-public school. 4 There is a list of MSDE approved non-public school placements. (www.mansef.org)www.mansef.org 4 The IEP must support the need for a non-public school placement.
Home and Hospital Instruction 4 Provided for children who cannot attend school due to medical or mental health reasons. 4 It is a temporary placement: not more than 60 consecutive school days unless a child’s IEP allows for an extension. 4 Related Services must also be provided. 4 Cannot be forced upon a child. 4 Cannot be used as an alternative educational setting when a student has been suspended or expelled.
Transition Issues/Returning to the Community 4 Transition Planning at least 30 days prior to release to ensure that there is not a gap in services. 4 If there are significant special education issues, such as school placement, an IEP meeting should be held prior to release with the receiving school system present. 4 The goal is for the student to leave a facility or placement with a current IEP that accurately reflects the student’s needs. 4 Centralized Transition Teams should include special education issues, but do not take the place of an IEP meeting.
Enrollment Issues 4 Out-of-County Placements: Students placed by a state agency in out-of-county living arrangement have the right to attend school in the county where they are placed. See Md. Code, Education § 4-122. 4 Informal Kinship Care: A county superintendent shall allow a child who is a resident of this State to attend a public school in a county other than the county where the child is domiciled with the child's parent or legal guardian if the child lives with a relative providing informal kinship care in the county and the relative verifies the informal kinship care relationship through a sworn affidavit. See Md. Code, Education §7-101 and §4-122.1
Prompt School Enrollment 4 Maryland law requires that Maryland children in state-supervised care who experience a change in physical residence that necessitates a change of schools shall be promptly enrolled in school and their school records shall be promptly transferred. Md. Code, Education § 8-502.
The Transfer of School Records 4 A placement agency responsible for the student in state-supervised care must provide notice to a receiving school regarding the enrollment or imminent enrollment of the student. 4 Within 2 school days the receiving school must –Inform the sending school of the enrollment –Request, in writing, the educational records –Provide a copy of the records request to the placement agency
4 Within 3 school days following receipt of the notice from the receiving school, the sending school must send –A completed student withdrawal or transfer record –The records of the student, including Academic records Discipline records Immunization records IEPs, Section 504 plans, and the most recent evaluations
Students With IEPs Transferring from Other Maryland School Districts 4 When a student with a disability transfers to a new county, the new school system must provide FAPE including services comparable to those provided by the former school district until the new district: –Adopts the IEP; or –Develops a new IEP COMAR 13A.05.01.09(E)(1)
Ways to Resolve Disagreements and Procedural Safeguards
Facilitated IEP Meetings 4 Trained, independent volunteer to help keep IEP team focused on needs of child when trying to resolve problems. All parties are supported in a non-confrontational manner; 4 Can be requested by either parent or school but both must agree; 4 Occurs at a regular IEP meeting and all legal requirements are the same; 4 No cost to parent or school; 4 Who to call: the Office of the Director of Special Education for the school system responsible for student’s educational program or Community Mediation Maryland (410-553-0206).
Notice Requirements 4 NOTICE: Parents are entitled to a 10 day notice of all IEP meetings. 4 WAIVER: Parents have the right to waive the 10 day notice if they need an immediate IEP meeting. The 10 day notice requirement is waived for manifestation meetings.
Parents’ Right to Documents 4 Under a new state law, school personnel are required to provide copies of any documents 5 days in advance of an Individualized Education Program (IEP) or interdisciplinary team meeting at which parents and school staff will be making education decisions based on those documents.
Resolving Disputes 4 Mediation. 4 Administrative Complaints may be filed with the Division of Special Education, Maryland State Department of Education. 4 Due Process Hearing.
Mediation 4 An informal conference with an independent mediator through the Office of Administrative Hearings. 4 A request for mediation must be made in writing to the school system. 4 It is a voluntary process and either party can refuse to mediate. 4 Any agreement must be in writing and is legally enforceable and binding. 4 Discussions during mediation are confidential and may not be used in subsequent due process hearings and civil proceedings.
Administrative Complaint Process 4 Parents/Advocates can file a written complaint with the Maryland State Department of Education if they believe a child’s rights have been violated. A copy of the complaint should also be sent to the local director of special education. 4 Examples of possible complaints: –Student did not receive services set forth in IEP. –School system failed to conduct timely evaluations. –School system violated discipline procedures 4 MSDE must complete its investigation within 60 calendar days. 4 The 60 day time period can be extended if the parent and school system agree to engage in mediation or other alternative means of dispute resolution. 4 The complaint must be filed within 1 year of the violation.
How to File for a Due Process Hearing 4 A hearing request must be sent to the school system and to the Office of Administrative Hearings. 4 The hearing request must –Allege a violation that occurred within 2 years of the date that parent or school system knew or should have known –Include the name, address and school of the child –Describe the nature of the problem; and –Include a proposed resolution. 4 The non-complaining party must respond to the hearing request within 10 days. 4 STAY PUT: A student stays in his or her last agreed upon placement until a due process hearing is resolved. (There are some exceptions under school discipline).
Removal of Student with Disabilities for Not More Than 10 Consecutive Days 4 A student with disabilities may be removed from school for up to 10 consecutive days just as a non-disabled student, for each incident of misconduct (as long as cumulative effect is not a change in placement). Student may be removed: To an alternative educational setting To another setting By suspension
Removal for More Than 10 Consecutive School Days is a Change in Placement 4 For students with disabilities a suspension of more than 10 consecutive school days constitutes a change in placement. 4 Parents must be notified in writing. 4 The IEP team must conduct a “manifestation meeting” within 10 school days of the date school personnel removed the student from school.
Change in Placement can also occur after 10 days have “accumulated” 4 Removal constitutes a “change in placement” if a student with a disability is: –(1) removed from the student’s current placement for more than 10 consecutive days; or –(2) subjected to a series of removals that constitutes a pattern of removals that accumulates to more than 10 school days in a school year.
Series of Removals or Short-Term Suspensions 4 For special education students a series of short-term suspensions may be considered a change in placement if it constitutes a pattern of removals that accumulates to more than 10 school days in a school year. 4 To determine if it is a pattern of removal, the IEP team is to consider: ▪ length of each removal; ▪ whether the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and ▪ additional factors such as: - length of each removal; - total time the student was suspended; and - proximity of the removals to one another.
The Manifestation Meeting 4 The IEP team must convene an manifestation meeting: –Determine if the student already has a behavior plan and if s/he does, the team must review and revise it. –If the student does not have a behavior plan, the team must order a functional behavior assessment and develop a plan.
Determining “Manifestation” 4 The IEP team must review all relevant information in the student’s file, any teacher observations, any relevant information provided by the parents and the IEP and determine: –1) if the conduct was caused by, or had a direct and substantial relationship to the student’s disability; or –2) if the conduct was the direct result of the school’s failure to implement the IEP.
If the Team Finds Manifestation 4 If the answer is “yes” to either of the 2 manifestation questions, the team must find manifestation, rescind the suspension, and return the student to the placement from which the student was removed unless parent and school system agree to a new placement. 4 If the team answers “yes” to the second query (“Was the conduct the direct result of the school’s failure to implement the IEP?”) the school system must take immediate corrective action. 4 Remember: if it has not already done so, team must also conduct a functional behavior assessment and develop a behavior intervention plan or, if a BIP is already in place, review the plan and modify it as necessary.
If Team Finds No Manifestation 4 If the team finds that the conduct was NOT a manifestation of the disability, the student is treated like a regular education student and will have a conference with the Superintendent’s Designee. 4 The Designee may remove a student with disabilities for more than 10 consecutive school days provided the student continues to receive educational services in another setting and participates in the general education curriculum and works towards IEP goals. Student should also receive “as appropriate” an FBA and BIP to prevent a reoccurrence of the incident that led to the removal.
Manifestation Exceptions 4 Drugs, Weapons or Serious Bodily Injury: –For incidents on school premises or at a school-sponsored function involving any of the above, a student with disabilities may be unilaterally moved to an alternative education setting (AES) for up to 45 school days even if the conduct was related to the student’s disability. 4 The IEP team determines the interim AES.
Appealing Manifestation Determination 4 If the student and parent do not agree with the manifestation determination they may appeal the decision to the Office of Administrative Hearings (OAH). 4 Appealing a manifestation determination in a drugs, weapons, serious bodily injury case, may prevent the student from being removed beyond the 45 school days. 4 The hearing shall occur within 20 days from the date of the hearing request and a decision is to be rendered within 10 days after the hearing.
Placement During An Appeal 4 If a parent requests a due process hearing to challenge the manifestation determination, the student remains in the interim alternative education setting until the appeal is resolved or until the end of the removal period, whichever comes first. 4 The parents and school system may agree to another placement pending the appeal.
Alternative Education Setting Requirements The setting must: 4 Enable the student to progress in the general curriculum 4 Provide services and modifications that are in the student’s IEP 4 Meet the goals of the IEP 4 Provide services to address the behavior 4 Home teaching is not an appropriate AES.
Exclusion, Restraint & Seclusion 4 School staff may only resort to restraint, exclusion or seclusion after less restrictive approaches have failed or been deemed inappropriate. 4 Exclusion can be used if student’s behavior unreasonably interferes with learning and/or in an emergency to protect the student and others from imminent harm. Exclusion must be done in a safe, unlocked setting where the child will be safe and can be monitored. A period of exclusion may not exceed 30 minutes and must be appropriate to the developmental level of the student and severity of the behavior. 4 Mechanical restraint is prohibited in public schools. (Does not include protective or stabilizing device). 4 Seclusion can be used if the on the IEP/BIP and/or in an emergency to protect the student and others from imminent harm after less intrusive interventions have been attempted or deemed inappropriate. It must be on the IEP and take place in a room where the child will be safe and can be monitored at all times. Only to be applied by trained staff and may not exceed 30 minutes. Must be appropriate for student’s developmental level and severity of behavior. May not restrict the student’s ability to communicate.
Physical Restraint 4 Can only be used in an emergency to protect the student and others from imminent, serious physical harm; 4 Can not be used to place a student face down nor in any position that will obstruct a student’s airway or impair the ability to breathe or obstruct the student’s face or restrict student’s ability to communicate distress, etc.; 4 School personnel may not straddle a student’s torso; 4 Must be done only be trained staff. 4 Must be removed as soon as child is calm but may not exceed 30 minutes 4 Must be on a child’s IEP. Only reasonable force can be used.
Section 504 of the Rehabilitation Act of 1973 4 Prohibits discrimination in federally funded programs. 4 Students with disabilities are entitled to participate fully and without discrimination in school programs. 4 For those students who have a disability but are not eligible under the IDEA because they do not require special instruction, Section 504 requires that they receive reasonable accommodations in regular classes with “related aids and services” if such are necessary. 4 Reasonable accommodation does not require a fundamental alteration of the program. 4 Accommodations and services should be set forth in a Section 504 Plan. 4 Section 504 requires an evaluation prior to a significant change in placement.
Examples of Accommodations Under Section 504 4 Provision of medication 4 A note taker or tape recorder 4 Special seating 4 Extra time to complete tests or work 4 Behavior plan 4 Section 504 also applies to physical barriers that prevent a student with a disability from participating in school.