Special Education Law

Special Ed Acronyms IEP FAPE LRE MDT 504 DD LD IEE OSEP OCR FBA SLP COTA CIC

14 th Amendment “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Vocational Rehabilitation Act 1973 “No otherwise qualified individual with disabilities in the United States…shall solely by reason of his/her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance…” 29 USC 794

Case Study You are the principal of Hokie High School. Your science department chair told you about a conversation that occurred this morning between her and one of her colleagues, Tom. When notified that Tom was expected to attend an IEP meeting as a representative of the regular ed staff. He said he doesn’t believe in “accommodations” and thinks the child in question is “just lazy” and is “working the system.”

Education for All Handicapped Children’s Act 1975 It is the duty of all schools to provide a free and appropriate public education in the least restrictive environment for every child between the ages of 3 & 21 who has identifiable disabilities

Education for All Handicapped Children’s Act - Provisions Free Appropriate Public Education Individual Education Plan Special Ed Services Related Services Due Process Least Restrictive Environment

Amendments  Attorney fees  0-3 program, optional 3-6 program essential Services for deaf- blind/ multi-handicapped  TBI, Autism Transition services Prevent schools from using the 11 th amendment ESY

1997 IDEA Extensive parent rights Discipline Access to regular curriculum/assessment Access to regular program Non-categorical eligibility Limits services to private school students

IDEA 2004 NCLB coordination Special Ed services for children in private schools Changes eligibility definitions for LD Flexibility for intervention prior to eligibility determination (15%) Modified dispute resolution More refined disciplinary rules for students with disabilities

Discipline Changes Removal for 45 alternative placement for causing serious bodily injury at school Manifestation team, must include parents, district, and relevant members of IEP team Child can be in alternative placement until decision is made in hearing, or period of discipline ends

Court Cases FAPE ESY Regression-Recoup Procedural safeguards IEPs ADHD LRE Private School Placement Related services Discipline Stay-put provision Compensatory education Attorney’s and Expert fees Liability for reimbursement of parents

Cases EACHA1975ACCESS Rowley 1982 SCFAPE Tatro1984 SCRelated Services Burlington 1985 SCReimbursement Robinson 1986Attorney fees Honig 1988 SCDiscipline Timothy W st CAbility to benefit Zobrest1993 SCParochial school

Cases (continued) Florence 1993 SCReimbursement Oberti rd CircuitLRE Holland th CircuitLRE Garrett1999 SCRelated Services Van Clay ircuit LRE Shaeffer 2005 SCBurden of Proof Arlington 2006 SC Non-Attorney fees Alvin 2007 SCADHD

FAPE Henry Hudson v Rowley 1982 SC Defined FAPE EAHCA does not require maximum ed services, but a floor of opportunity Questions of methodology for provision of services are to be determined by state and local ed systems

Related Services Irving v Tatro 1984 SC ◦CIC is a related service Cedar Rapids v Garrett 1999 SC ◦Continuous nursing service is a related service

How would you handle this? Parents of a medically fragile child are insistent that their child be totally integrated into the school mainstream. Due to a cardiac condition, it is possible that the child will have to be resuscitated at some point during the school day. Additionally, trach suctioning and naso-gastric tube feeding are required. The parents demand that a full time nurse be provided to ensure that their child receives the necessary medical attention.

Discipline Honig v Doe 1988 SC Discipline rights May suspend a child for up to 10 days with out violating the stay-put provision Why are suspension and expulsion procedures for students with disabilities different from those for non-disabled?

What should the school do? During most of his years in the Shrenk School District, Tommy demonstrated no need for special education services. He had average grades and progressed from grade to grade. Although diagnosed ADHD, he was not on any medication. In high school he left school one day with friends, all of whom admitted to smoking marijuana at his home. Later the group returned to school, where Tommy used a pellet gun to shoot at another student on the school track. The student was not seriously injured. When Tommy was expelled his parents filed a due process complaint saying he should have been served as a special education student.

LRE Timothy W v Rochester st Circuit Oberti v Bd of Ed rd Circuit Sacramento v Holland th Circuit Beth v VanClay20027 th Circuit What are the factors in the 4 part Holland test?

Special Ed and Private Placements Florence v Carter1993 SC ◦Parent entitled to reimbursement for private placement (not parochial) Zobrest v Catalina 1993 SC ◦Provision of services at parochial schools Foley v Special School District th Circuit ◦Voluntary parochial placement, no entitlement KDM v Reedsport th Circuit ◦Not entitled to services in parochial school

Additional Cases Martinez v School Bd th Circuit ◦Aids, risk v accommodation Timothy v Cedar Rapids th Circuit ◦504 and transportation for choice Schaeffer v Weast 2005 SC ◦Burden of proof is on the party seeking relief Arlington v Murphy 2006 SC ◦Non-attorney fees are not reimbursable costs

If 504 and Special Education serve students with disabilities – what are the differences? IssuesSpecial EducationSection 504 Identification Evaluation Due Process Discipline Enforcement

504 vs Special Ed IDEIASection 504 Identification/ eligibility Specific categories; adversely affect ed performance Must affect major life activity; no need for sped Evaluation Comprehensive eval by MDT; Independent eval; re-eval every 3 years; no significant re-eval for placement change Evaluation from variety of sources documented; periodic eval; decisions do not require consent; Responsibility for FAPE IEP; educational benefit to student; placement in spec ed/gen ed; related services Plan; comparable ed; placement in gen ed; related services Due Process Impartial hearing and appointee for hearing; specific procedures; stay- put; 10 day notice for change; requires parent consent Impartial hearing; hearing officer can be school staff; no stay-put: no prior notice for change; requires parent participation EnforcementOSEPOCR

Checklists Be familiar with district policies and procedures regarding sped Ensure proper placement of qualified transfer students Make sure disciplinary actions conform with the law Complete assessments within time limits

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