SPECIAL EDUCATION LAWSPECIAL EDUCATION LAW

BUILDINGBUILDINGBLOCKSBLOCKS&&BASICSBASICS

Sallie LynaghSallie LynaghDisability Rights Network of PADisability Rights Network of PA

Applicable LawApplicable Law

The PARC Consent DecreeThe PARC Consent Decree

Section 504 of the Rehabilitation Act of Section 504 of the Rehabilitation Act of 19731973

The Individuals with Disabilities Education The Individuals with Disabilities Education Act, or IDEAAct, or IDEA

Pennsylvania’s Chapter 14Pennsylvania’s Chapter 14

The Americans with Disabilities ActThe Americans with Disabilities Act

Relevant Cases, e.g. Oberti, GaskinRelevant Cases, e.g. Oberti, Gaskin

IDEA: The EntitlementIDEA: The Entitlement

The Individuals with Disabilities Education The Individuals with Disabilities Education Act entitles disabled children ages 3-21 to Act entitles disabled children ages 3-21 to a free, appropriate public education a free, appropriate public education (FAPE), which includes “special (FAPE), which includes “special education,” “related services,” and education,” “related services,” and “transition services” in the Least “transition services” in the Least Restrictive Environment (LRE).Restrictive Environment (LRE).

Special EducationSpecial Education

Specially designed programs that:Specially designed programs that:

are provided at public expenseare provided at public expense

meet state educational standardsmeet state educational standards

include an appropriate pre-school, include an appropriate pre-school, elementary, and secondary education;elementary, and secondary education;

are provided in conformity with an are provided in conformity with an Individualized Education Program (IEP).Individualized Education Program (IEP).

Related Services:Related Services:

speech/languagespeech/language

psychological servicespsychological services

physical/ occupational physical/ occupational therapytherapy

recreation/therapeutic recreation/therapeutic activityactivity

early identification and early identification and assessmentassessment

counseling servicescounseling services

orientation and orientation and mobility servicesmobility services

school health servicesschool health services

social work servicessocial work services

parent counseling and parent counseling and trainingtraining

transportationtransportation

medical services for medical services for diagnostic and diagnostic and evaluation purposesevaluation purposes

Transition ServicesTransition Services

Defined as a coordinated set of activities Defined as a coordinated set of activities for a student that promotes movement for a student that promotes movement from school to post-school activities, from school to post-school activities, including post-secondary education, including post-secondary education, vocational training, integrated vocational training, integrated employment, (including supported employment, (including supported employment), independent living, and employment), independent living, and community participation.community participation.In PA, transition planning begins @ age 14In PA, transition planning begins @ age 14

Least Restrictive EnvironmentLeast Restrictive EnvironmentLRE requirement mandates that:LRE requirement mandates that:

To the maximum extent appropriate, children with disabilities are educated with children who are nondisabled; and

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.

Who is Disabled Under IDEA?Who is Disabled Under IDEA?

mental retardation/mental retardation/

developmental delaysdevelopmental delays

hearing impairmentshearing impairments

speech or language speech or language impairmentsimpairments

visual impairmentsvisual impairments

serious emotional serious emotional disturbancedisturbance

orthopedic orthopedic impairmentimpairment

autismautism

traumatic brain injurytraumatic brain injury

specific learning specific learning disabilitiesdisabilities

multiple disabilitiesmultiple disabilities

other health impairedother health impaired

Evaluation Referral ProcessEvaluation Referral Process

A child “thought-to-be” disabled should be A child “thought-to-be” disabled should be referred for an evaluation.referred for an evaluation.

A referral, in writing, can be made by a A referral, in writing, can be made by a parent, teacher, or other service provider.parent, teacher, or other service provider.

The referral, delineating specific areas of The referral, delineating specific areas of concern, should be sent to the child’s concern, should be sent to the child’s school principal. KEEP A COPY.school principal. KEEP A COPY.

The Evaluation PlanThe Evaluation Plan

The local education agency (LEA) should The local education agency (LEA) should issue a Permission to Evaluate Form to issue a Permission to Evaluate Form to the parent that explains each type of the parent that explains each type of assessment to be conducted. The LEA assessment to be conducted. The LEA has 60 calendar days, has 60 calendar days, not counting not counting summer breaksummer break, from receipt of the signed , from receipt of the signed permission to evaluate to complete the permission to evaluate to complete the evaluation process. The parent may evaluation process. The parent may request a face-to-face evaluation request a face-to-face evaluation meeting.meeting.

The Evaluation Report (ER)The Evaluation Report (ER)

A statement of whether the child needs A statement of whether the child needs special education services;special education services;

the basis for the determination;the basis for the determination;

relevant behavior noted during observation relevant behavior noted during observation of the child;of the child;

relationship of observed behavior to child’s relationship of observed behavior to child’s academic and social functioning; academic and social functioning;

The Evaluation Report (cont.)The Evaluation Report (cont.)

educationally relevant health and educationally relevant health and development information, including medical development information, including medical findings;findings;

for LD children, NO LONGER REQUIRED for LD children, NO LONGER REQUIRED TO CONSIDER DISCREPANCY TO CONSIDER DISCREPANCY BETWEEN ACHIEVEMENT AND ABILITYBETWEEN ACHIEVEMENT AND ABILITY

assessment of the effects of cultural, assessment of the effects of cultural, environmental or economic factors.environmental or economic factors.

Individualized Education Individualized Education Program (IEP)Program (IEP)

Developed within 30 days of evaluation report.Developed within 30 days of evaluation report.

Team must include:Team must include:

LEA representativeLEA representative

child’s special education teacherchild’s special education teacher

child’s regular education teacherchild’s regular education teacher

parent(s)parent(s)

an individual who participated in the an individual who participated in the assessment & determined the child eligibleassessment & determined the child eligible

the child, if plan will include transition servicesthe child, if plan will include transition services

IEP TEAM ATTENDANCEIEP TEAM ATTENDANCE

If the IEP team member’s area of If the IEP team member’s area of expertise not being discussed/modified, expertise not being discussed/modified, team member need not attend if parent team member need not attend if parent and school agree.and school agree.If IEP team member’s area is being If IEP team member’s area is being discussed/modified, the IEP team member discussed/modified, the IEP team member may be excused if parent and school may be excused if parent and school agree in writing and if member’s written agree in writing and if member’s written input submitted prior to the meeting.input submitted prior to the meeting.

IEP DevelopmentIEP DevelopmentI. I. Special ConsiderationsSpecial Considerations

II. II. Present Levels: Academic + FunctionalPresent Levels: Academic + Functional

III. III. Student Transition ServicesStudent Transition Services

IV.IV. Participation in State/Local AssessmentsParticipation in State/Local Assessments

V. V. Goals and ObjectivesGoals and Objectives

VI. VI. Special Education / Related Services / Special Education / Related Services / Supplementary Aids and Services / Supplementary Aids and Services / Program ModificationsProgram Modifications

VII.VII. Educational PlacementEducational Placement

VIII.VIII. Penn Data/Least Restrictive EnvironmentPenn Data/Least Restrictive Environment

LRE in CaselawLRE in Caselaw

Oberti v. Board of Education (3Oberti v. Board of Education (3rdrd Circuit, ’93) Circuit, ’93)The school district must consider “the full range” of supplementary aids and services during the development of the IEP.Four specific supplementary aids and services the school district must consider:

Curriculum modificationTeacher trainingBehavior supportInstructional assistant

Prior Written Notice:Prior Written Notice:

Must be given to the parents of a child with a Must be given to the parents of a child with a disability a reasonable time before the public disability a reasonable time before the public agency—agency—ProposesProposes or or refusesrefuses to initiate or to initiate or change the identification, evaluation, or change the identification, evaluation, or placement of the child or the provision of FAPE placement of the child or the provision of FAPE to the child.to the child.Content: A description of the action proposed or Content: A description of the action proposed or refused; an explanation of why; evaluations, etc. refused; an explanation of why; evaluations, etc. that serve as the basis; a statement of that serve as the basis; a statement of protections; sources of assistance; a description protections; sources of assistance; a description of other options considered; a description of of other options considered; a description of other relevant factors.other relevant factors.

IDEA and Chapter 14IDEA and Chapter 14

DISCIPLINARY DISCIPLINARY PROVISIONSPROVISIONS

Behavior: Consideration of Behavior: Consideration of Special Factors in Drafting the Special Factors in Drafting the

IEPIEP

The IEP Team shall, in the case of a The IEP Team shall, in the case of a child whose behavior impedes his or child whose behavior impedes his or her learning or that of others, consider, her learning or that of others, consider, when appropriate, strategies, including when appropriate, strategies, including positive behavioral interventions, positive behavioral interventions, strategies, and supportsstrategies, and supports to address to address that behavior.that behavior.

Disciplinary Change in PlacementDisciplinary Change in Placement

Exclusion of a student w/ a disability:Exclusion of a student w/ a disability:

More than 10 days consecutively; orMore than 10 days consecutively; or

More than 15 days cumulatively; orMore than 15 days cumulatively; or

When days 11-15 constitute a pattern of When days 11-15 constitute a pattern of exclusion; orexclusion; or

An exclusion of even one day for a student An exclusion of even one day for a student with mental retardation.with mental retardation.

Prior to a change in placement:Prior to a change in placement:

Written notice must be issued to the parent. If Written notice must be issued to the parent. If family disagrees, the exclusion cannot take family disagrees, the exclusion cannot take place at that point…”Stay Put Rule”place at that point…”Stay Put Rule”

Manifestation Determination must be conducted Manifestation Determination must be conducted by the IEP Team to determine if the student’s by the IEP Team to determine if the student’s misconduct was caused by, or was in direct and misconduct was caused by, or was in direct and substantial relationship to, the child’s disability substantial relationship to, the child’s disability OR was a direct result of the LEA’s failure to OR was a direct result of the LEA’s failure to implement the IEP.implement the IEP.

Functional Behavioral Assessments Functional Behavioral Assessments & Behavioral Intervention Plans& Behavioral Intervention Plans

If the behavior was a manifestation:If the behavior was a manifestation:

The IEP Team shall conduct a functional The IEP Team shall conduct a functional behavioral assessment and implement a behavioral assessment and implement a behavioral intervention plan for the child; orbehavioral intervention plan for the child; or

If the child already has a plan, the IEP Team shall If the child already has a plan, the IEP Team shall review and modify it, as necessary to address review and modify it, as necessary to address the behavior.the behavior.

Provision of FAPEProvision of FAPE

For removals of more than 10 school days, For removals of more than 10 school days, when behavior was not a manifestation of when behavior was not a manifestation of disability, FAPE must be provided but may disability, FAPE must be provided but may be provided in an interim alternative be provided in an interim alternative educational setting.educational setting.

For students w/ MR: Services from Day 1For students w/ MR: Services from Day 1

Exceptions to Expulsion RulesExceptions to Expulsion Rules

Unilateral removal for drugs, weapons, and Unilateral removal for drugs, weapons, and serious bodily injury violations, whether or not a serious bodily injury violations, whether or not a manifestation of disability, can be for up to 45 manifestation of disability, can be for up to 45 school days to interim alternative educational school days to interim alternative educational setting.setting.

Parent must be notified with PSN, FAPE must Parent must be notified with PSN, FAPE must be provided, Manifestation Determination be provided, Manifestation Determination conducted, Functional Behavioral Assessment, conducted, Functional Behavioral Assessment, Behavior Intervention Plan.Behavior Intervention Plan.

Serious Bodily Injury DefinedSerious Bodily Injury Defined

A bodily injury that involves a substantial A bodily injury that involves a substantial risk of death, extreme physical pain, risk of death, extreme physical pain, protracted and obvious disfigurement; or protracted and obvious disfigurement; or protracted loss or impairment of the protracted loss or impairment of the function of a bodily member, organ or function of a bodily member, organ or faculty.faculty.

Exceptions to Expulsion RulesExceptions to Expulsion Rules

Dangerous BehaviorDangerous Behavior: If school : If school personnel wish to change a child’s personnel wish to change a child’s placement because of dangerous placement because of dangerous behavior that is a manifestation of that behavior that is a manifestation of that disability, and the parents dispute the disability, and the parents dispute the proposal, the school may seek proposal, the school may seek permission from a hearing officer to place permission from a hearing officer to place the child in an alternative interim the child in an alternative interim educational setting for up to 45 days.educational setting for up to 45 days.

Hearing Officer must find that:Hearing Officer must find that:

The school system has demonstrated that The school system has demonstrated that keeping the child in the current placement keeping the child in the current placement is likely to result in harm to that child or is likely to result in harm to that child or others; ANDothers; AND

the school system has made reasonable the school system has made reasonable efforts to minimize the risk of harm; ANDefforts to minimize the risk of harm; AND

the alternative interim educational setting the alternative interim educational setting meets statutory requirements.meets statutory requirements.

How to Resolve Disagreements How to Resolve Disagreements InformallyInformally

Talk with child’s teachers or other Talk with child’s teachers or other school staffschool staffWrite to the principal and request an Write to the principal and request an appropriate meeting (evaluation appropriate meeting (evaluation report review, IEP meeting, etc.) report review, IEP meeting, etc.) Ask the school to agree to an IEP Ask the school to agree to an IEP Facilitation (ODR)Facilitation (ODR)

How to Resolve Disagreements How to Resolve Disagreements FormallyFormally

Division of Compliance Complaint:Division of Compliance Complaint: – Legal ViolationsLegal Violations– Form Form

MediationMediation: : – FreeFree– VoluntaryVoluntary– No lawyersNo lawyers

Due Process HearingDue Process Hearing::– Usually lawyers (LEA must have one)Usually lawyers (LEA must have one)– Due Process Complaint NoticeDue Process Complaint Notice– Resolution SessionResolution Session

If you need more help:If you need more help:

DRN’s website: DRN’s website: www.drnpa.org

DRN’s intake number: 1-800-692-7443DRN’s intake number: 1-800-692-7443

Sallie Lynagh:Sallie Lynagh: slynagh@drnpa.org or or

1-800-390-12791-800-390-1279