Special Education Law Presented by: Jane R. Wettach Clinical Professor of Law, Duke Law School Director, Duke Children’s Law Clinic

History of Discrimination Approximately 12 percent of children have disabilities that affect their ability to learn Disabilities range from mild to profound Historically, the most impaired were excluded from education altogether Some (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

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 schools 1975 – first federal law promising states federal funds to assist in educating children with disabilities -- Education for all Handicapped Children Act (94-142) 1990 -- revisions to EHCA, including new name: Individuals with Disabilities Education Act 2004 – most recent revisions to IDEA

Special Education Laws The Individuals with Disabilities Education Act – 20 USC 1400 et seq and 34 CFR Part 300 Education of Children with Disabilities – NCGS 115C-106 et seq North Carolina Policies, issued by the Dept. of Public Instruction N.C. Policies Governing Services for Children with Disabilities

IDEA – The Basic Promise All children with disabilities are entitled to A “free, appropriate, public education” In the “least restrictive environment” Pursuant to an Individualized Education Program (IEP)

IDEA Entitlements The right to be evaluated, at public expense, to determine eligibility for special education The right to an Individualized Education Program that provides the specialized instruction and related services needed to allow the child to make educational progress

IDEA Entitlements The right to be educated, to the maximum extent possible, with typically developing peers The right to access, to the maximum extent possible, to the general curriculum

IDEA Entitlements The right of parents to be involved in the decision-making process and the development of the IEP The right to review of decisions made by the IEP team through due process appeal

Who is a “child with a disability”? Child (ages 3 – 21) must have an identified physical or mental dysfunction that interferes with educational performance Child must need “specially designed instruction” to make educational progress (not just accommodations)

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); and related 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.

What is a “FAPE”? “Educational progress” is not just academic learning, but includes – Socialization Adaptive/functional skills Language and communication Reduction of behavioral problems

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

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

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; or The marginal benefit of being educated in the regular classroom is outweighed by the benefits of a separate setting; or The disabled child is a disruptive force in the regular classroom.

Special Education -- Eligibility Child must be “referred” to be evaluated for possible special education services A parent or teacher must make the referral. It must be – in writing, addressed to the principal dated state reason for referral in terms of lack of educational performance The school district has an obligation to identify children who may need special education, but parent should refer if there are concerns The parents must agree for the evaluation to proceed.

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

Special Education -- Eligibility School has 90 days from date of referral to beginning of services If parent believes school evaluation is incomplete or wrong, parent can ask for an independent evaluation at school expense School must either pay for the evaluation, or file a due process petition to allow a judge to decide if school is obligated to pay

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 testing Parent may invite persons who have special expertise Members of the team consider all information and then determine if child fits into one of the 14 eligibility categories (shown on next slide)

Categories of Eligibility Autistic Deaf Seriously emotionally disabled (formerly BED) Deaf-Blind Hearing impaired Multi-handicapped Intellectually disabled (formerly EMD, TMD) Orthopedically impaired Other health impaired (includes ADD/ADHD) Specific learning disabled (includes dyslexia) Speech/language disabled Traumatic brain injured Visually impaired Developmentally delayed (for children aged 3 – 7)

The IEP Each eligible child must have an Individualized Education Plan (IEP), revised at least annually IEP is “blueprint” for the child’s free, appropriate, public education in the least restrictive environment IEP must be written by a team of persons knowledgeable about the child and the child’s needs, including parents

The IEP Must be designed to meet child’s unique needs, and include: Current performance Measurable, objective annual goals Short term benchmarks/objectives required for children who take alternate assessments A statement of the special education and related services, and supplementary aids and services to be provided Amount of special education to be provided Amount of related services to be provided Classroom and testing modifications Placement on continuum of settings

Follow up to IEP IEP is revised annually, or as often as needed, to assure that child is making progress on goals Child 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)

Entitlement to FAPE A “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

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

Reasonable Progress Some ways to measure progress Grades, if student is in standard curriculum Achievement 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

Methodology As 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.

IEP Timelines After parental consent for evaluation, determination of eligibility must be accomplished within 60 days After determination is made that a child requires special education, an IEP must be developed within 30 days IEP shall be implemented “as soon as possible” following the IEP meeting From referral to placement in appropriate program may not exceed 90 days

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 privately If the school district does not provide the services, a parent can unilaterally place the child in a private school and request reimbursement

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 reimbursement If 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

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)

IDEA Discipline Protections Students with IEP’s are entitled to these protections: Manifestation Determination Review Functional Behavior Assessment Behavior Intervention Plan Continuation of FAPE

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, OR A direct result of the LEA’s failure to implement the IEP

Manifestation Determinations No manifestation: proceed with suspension, BUT continue with FAPE in an alternative setting Manifestation: no suspension allowed, BUT services & placement can be reviewed and changed MDR results are appealable But no “stay-put protection”; child stays in alternative setting pending the appeal

“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 student Brought drugs or weapons to school Caused serious bodily injury While in interim alternative educational setting, student should be able to have access to the general curriculum and make progress on IEP goals.

Functional Behavior Assessments If appropriate, the school should engage in a functional behavior assessment (FBA)of the disciplined student FBA is a process designed to better understand the child’s behavior What 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?

Behavior Intervention Plan A BIP is a plan that is designed, based on the information gained in the FBA, to Reduce the likelihood of the offensive behaviors occurring Identify behavioral supports Structure the steps to be taken when offensive behaviors occur (redirection, change environment, etc.) Identify consequences

Continuation of FAPE Special education students have the right to continued education during their period of suspension They must be able to Continue to participate in the general education curriculum, although in another setting Progress toward meeting their IEP goals

Problem resolution under IDEA Informal resolution Mediation Due process appeal State complaint

Informal resolution Conferences with teacher, principal, service providers, special education administrators IEP meetings Facilitated IEP meetings

Facilitated IEP meetings DPI will provide a facilitator for an IEP meeting No cost to parents Form to request on DPI (EC Division) website (Facilitation request) May help parent have and take opportunity to contribute to the meeting May help school personnel to take parental information into account

Special education mediation A process offered free to parents and school systems, administered by the state dept. of education A focused discussion, facilitated by a mediator, designed to bring parents and school personnel in a dispute to an agreement Request mediation

Special education mediation Voluntary on both sides Confidential – 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

Due Process Appeal Administrative hearing conducted by state administrative court Formal, trial-like process with witnesses and documentary exhibits Best 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

For legal help, contact: Children’s Law Clinic Duke Law School 919-613-7169 Free legal advice and representation for low-income families living in an 11-county region around Durham, NC