THE NUTS AND BOLTS OF FEDERAL SPECIAL EDUCATION LAW NAMI 2008 DAWN R. SMITH, ESQ.

THE INDIVIDUALS WITH DISABILITIES IN EDUCATION ACT (“IDEA”) Two guarantees for eligible children with disabilities:  A free and appropriate public education  In the least restrictive setting NAMI 2008

WHO IS AN ELIGIBLE CHILD WITH A DISABIITY? A child evaluated as having --  mental retardation  a hearing impairment (including deafness)  a speech or language impairment  a visual impairment (including blindness)  a serious emotional disturbance  an orthopedic impairment  autism  traumatic brain injury  an other health impairment  a specific learning disability AND... NAMI 2008

WHO, BY REASON THEREOF NEEDS SPECIAL EDUCATION AND RELATED SERVICES DISABILITY + NEED FOR SPECIAL EDUCATION SERVICES = IDEA ELIGIBLE CHILD NAMI 2008

SPECIAL EDUCATION SERVICES... specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability… This includes: “(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and “(B) instruction in physical education” NAMI 2008

SPECIALLY DESIGNED INSTRUCTION Adapting as appropriate to the needs of a child, the -  Content  Methodology  Delivery of instruction To meet the unique needs of the child and to ensure access to the general curriculum so that the child can meet the educational standards that apply to all children. NAMI 2008

RELATED SERVICES Include: interpreting services speech-language pathology and audiology services psychological services physical and occupational therapy recreation, including therapeutic recreation counseling services, including rehabilitation counseling orientation and mobility services medical services for diagnostic or evaluation purposes school health services and school nurse services social work services in schools parent counseling and training NAMI 2008

Evaluation Schools are responsible for ensuring that a child suspected of having a disability is provided “a full and individual evaluation in all areas of suspected disability” Evaluations are the basis for conferring special education eligibility and creating an appropriate educational plan for the child. Assessment used must accurately reflect the child's aptitude or achievement level, or whatever other factors the assessment purports to measure, rather than reflecting the child's impairment.

NAMI 2008 An evaluation must… …be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been classified. If you can’t create an IEP with the evaluation, its most likely not appropriate Evaluations provide the data that will determine eligibility.

FAPE The state must provide a free and appropriate public education (“FAPE”) to all eligible children with disabilities residing in the state between the ages of 3 and 21, including:  children with disabilities who have been expelled from school;  children with disabilities who are advancing grade to grade. NAMI 2008

WHAT IS FAPE? F = free A = appropriate P = public E = education NAMI 2008

What is an IEP? Individualized education program. The term "individualized education program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes—  Present levels of performance  Annual Goals and Objectives  Related Services and Supplementary Aids and Services plus modifications that are appropriate and allow participation in the general curriculum as well as with non- disabled peers  an explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and in the activities

NAMI 2008 The IEP The IEP is developed by a team of teachers, parents, professionals with information about the child. Based on current and appropriate information about the student. The Team includes meaningful parent participation. The Team is responsible for monitoring progress and reconvening as needed.

NAMI 2008 Components of an IEP Present Levels of Performance Goals & Objectives Special Considerations Related Services ESY Assistive Technology Modifications Testing Accommodation LRE/Placement

NAMI 2008 IEP and Social/Behavioral Issues Education INCLUDES social and behavioral domains Most States have mandated the system-wide use of positive behavioral supports PBIS, on an individual basis, should be integrated into the IEP of a child with behavioral challenges

NAMI 2008 PBIS and ABA in IDEA An LEA must “consider the use of positive behavioral interventions and supports” for a child with behavioral issues in a behavior intervention plan When a child is removed from their placement following a behavioral problem the school must provide a “functional behavioral assessment, and behavioral intervention services and modifications” designed to address the behavior so it does not happen again

NAMI 2008 SCHOOL DISCIPLINE

NAMI 2008 Do the Special Education Rules Apply? Child is already in special education program Child is suspected of having a disability  The Parent has expressed concern in writing to the school  An evaluation has already been requested  A teacher of the student has expressed specific concerns about specific pattern of behavior to SPED director or appropriate supervisor

NAMI 2008 Authority of Administrators Removal from educational setting  10 day Rule  Cumulative vs. Consecutive vs. Pattern  In – School Suspension Interim Alternative Educational Setting  For up to 45 days  At all times must provide FAPE  Can be renewed by administrators/IEP Team

NAMI 2008 Manifestation Determination Within 10 days of a change in placement, the IEP Team convenes to determine  Whether the conduct in question, “was caused by, or had a direct and substantial relationship to” the student’s disability OR  If the conduct was “a direct result of the failure of the LEA to implement the IEP.”

NAMI 2008 If a relationship exists… IEP Team must address behavioral issues by creating or modifying behavior intervention plan If no BIP, IEP should start Applied Behavior Analysis to determine interventions

NAMI 2008 If no relationship exists… Student may be disciplined as a regular education student EXCEPT… At no time may the child be placed in a setting that can not implement the components of the IEP; and The child must continue to receive a free, appropriate public education (FAPE)

SPECIAL CIRCUMSTANCES School Personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to manifestation, in cases where the child:  Carries a weapon to school, on school premises, or at function ; or  Knowingly possesses or uses illegal drugs or sells drugs on school premises: or  Has inflicted serious bodily injury. NAMI 2008

TRANSFER OF RECORDS A LSS/SOP reporting a crime committed by a student with a disability shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities to whom it reports the crime.

§ 504 vs IDEA § 504 is a civil rights law designed too level the playing field – eliminating barriers vs. remedial § 504 is largely unfunded, thus frequently ignored by school districts § 504 eligibility broader than IDEA Physical or mental disability which “substantially limits” one or more major life activities. NAMI 2008

EXAMPLES-PROTECTED BY §504 AND NOT IDEA students with communicable diseases (i.e., hepatitis); students with temporary disabilities arising from accidents who may need short term hospitalization or homebound recovery; students with allergies or asthma; students who are drug addicted or alcoholic, as long as they are not currently using illegal drugs students with environmental illnesses. NAMI 2008

Resources on the Web Wrightslaw - A good starting point for special education law. Website hosted by special education attorney Pete Wright. Good practical guides and some legal research available. IDEA Practices US Department of Education grantee website providing information about special education laws and regulations. Site also contains Topic Briefs from Office of Special Education Programs (OSEP). Center for Law and Education General information about education law. Several topical papers on children with disabilities in public schools. Council for Children with Behavioral Disorders (CCBD) Information specifically children diagnosed with a behavioral disorder. Site contains information about advocacy for the child with a BD.

NAMI 2008 Web Resources (con’t) National Center on Education, Disability & Juvenile Justice Contains statistics, policy data, and legal information regarding disabled youth and the juvenile court. Good resource for statistical information about this population in the publications section. U.S. Department of Education Federal Department of Education website. U.S. Department of Education - Office of Civil Rights Federal Department of Education, Office of Civil Rights Website which contains links to the formal complaint procedures for OCR. LD Online - Provides information for evaluation, educational programming, and service provision for persons with specific learning disabilities. Good resource for research and IEP planning.