TELECONFERENCE TRAINING SERIES ON AT AND SPECIAL EDUCATION
SESSION I: SPECIAL EDUCATION OVERVIEW
ATTAC of NAPAS
Washington, DC (202) 408-9514
Ronald M. Hager
National AT Advocacy Project
a project of Neighborhood Legal Services, Inc. · Buffalo, New York · (716) 847-0650
1. What is an educational "placement" for the purposes of the IDEA?
a. "Placement" is defined in an OSEP letter (Letter to Fisher, 21 IDELR 992 (4/18/94) ) as more the location where special education and related services are provided. It is the student’s entire program of services. OSEP Letter is not legal precedent in the same manner that the statute and case law are, but, like regulations they are afforded a certain level of deference by most courts and hearing officers.
b. Generally, placement related decisions are made by the placement team ( "a group of persons, including the parents, and other persons knowledgeable about the child..."34 CFR §300.552). The IEP team may contain the same individuals as the placement team and the placement decision may also be made at the IEP meeting, if the requirements of 34 CFR 300.552 and other regulatory requirements are met.
c. Certain decisions are left to the school district, such as teacher selection and the location where services are provided, unless those decisions are essential to meet the unique needs of the student and, are, therefore included in the IEP.
d. The regulation: "... In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that-(1) The placement decision-
(a) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and(b) Is made in conformity with the LRE provisions of this subpart, including §§300.550-300.554;
(2) The child's placement-
(3) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled; (4) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
(5) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. " 34 CFR §300.552
2. Least Restrictive Environment
a. The concept of "Least Restrictive Environment (LRE)" has been one of the core principles of the IDEA since its inception over twenty five years ago. It is often referred to as "inclusion", "integration" or "main streaming."
b. The basic premise is that an IDEA eligible student must receive his/er education, including non-academic services and extra curriculars, in the same manner and in the same environment as everyone else, to the maximum extent that is appropriate for the student. The "maximum extent" language makes this a very high standard. Still must balance student’s ability to progress in the setting, and to lesser degree, impact on classmates.
c. The burden for proving that the student cannot receive his/er education in a fully integrated setting falls on the school district. The student does not have to prove that s/he can be fully integrated, but rather the district must prove he or she cannot, even after appropriate supplementary aids and services are provided. Once the placement team determines where the student is to be placed, it must document this decision in writing. If not fully included, as included as possible. Presumption of full inclusion (34 CFR 300. 552)
d. Any public agency which receives IDEA funding must adhere to the LRE requirement, even the SEA. The SEA may not distribute IDEA funds in a way that penalizes any agency for placing students in the least restrictive environment.
e. General LRE requirements:
"(b) Each public agency shall ensure-(1) That to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and (2) That 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." 34 CFR 300.550
f. Supplementary aids and services:
" As used in this part, the term supplementary aids and services means, aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with §§300.550-300.556." 34 CFR §300.28
AT is a supplementary aids and/or service. 34 CFR 300.308(a)(3)
g. Nonacademic settings:
" In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in §300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child." 34 CFR §300.553
h.. Content of IEP:
...(3) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child-
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section;
(4) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in paragraph (a)(3) of this section... 34 CFR §300.347
1999 regulations make clear that student must be included in the general curriculum, to max. extent appropriate, not just in the classroom.
i. Letter to Hall, OSEP 199, 30 IDELR 142. The first placement considered for a student should always be regular education.
j. The Full Continuum: All public entities which receive IDEA funds must have available (by contract with private entities, if necessary) the "full continuum" of placements to ensure that they have a placement to meet each student’s needs. That means that a district cannot choose to place a student in a school or program that does not meet all of the requirements of his/er IEP simply because it doesn’t have the right program available. If it does not have such a program, it must create one, alter an existing one, or send the student to another public or private placement that does meet his/er needs. If the student is placed elsewhere, the district must pay the tuition/costs, if necessary.
k. Examples: If the student requires a full time aide to participate in the regular classroom and the district does not wish to provide one, it may not place the student in an already existing segregated or remedial classroom for part of the day so that s/he "can receive the intensive services s/he needs." If providing an aide is the only accommodation that will allow the student to be fully integrated within the school system, the district must provide the aide.
If the district claims it does not have the staff available to meet the student’s needs it needs to examine its personnel development plans. This is not an excuse it may legally use to avoid providing the staff required by the student’s IEP.
l. Continuum of alternative placements:
"...(a) Each public agency shall ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. (b) The continuum required in paragraph (a) of this section must- (1) Include the alternative placements listed in the definition of special education under §300.26 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and (2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement." 34 CFR §300.551
m. Cases: Has the student been placed in the least restrictive environment?
(1) . 3rd Circuit:
T.R. v. Kingwood Tp. Brd. Of Educ. 205 F3d 572, 2000 WL 261067 (3rd Cir. 2000)
Oberti by Oberti v. Board of Educ. of Borough of Clementon School Dist., 995 F 2d 1204, (3rd Cir. 3/93), 19 IDELR 908
(2). 4th Circuit:
Hartman v. Loudoun County Brd. Of Educ., NO. 96-2809, (4th Cir 7/97), 26 IDELR 167
(3) . 5th Circuit:
Daniel R.R. V. State Board of Educ., No. 88-1279, (5th Cir 6/89), IDELR 441:433
(4). 6th Circuit:
Ronker v. Walter, 700 F2d 1058, (6th Cir. 1983), cert denied, 464 U.S. 864 (1983)
Metropolitan Board of Public Educ. v. Guest, 193 F3d 457(6th Cir. 1999)
(5) 9th Circuit
Sacramento City School Dist. v. Rachel H., 14 F3d 1398, (9th Cir. 1994), cert denied, 512 US. 1207, 20 IDELR 1115
Poolaw v. Bishop et al, 67 F3d 830 (9th Cir 1995)
E. Written Individualized Education Program (IEP) Development
i. In Rowley, the United States Supreme Court noted the importance of parental participation and compliance with proper procedures in developing a child's IEP (p. 9)
ii.. Parental participation
(1) . Parents are equal participants with district staff in developing the IEP (p. 10)
(2) District’s must ensure that the parents are present or are afforded the opportunity to participate, including:
A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place
(i) the parents of a child with a disability;
(ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment); (p. 13)
(iii) at least one special education teacher, or where appropriate, at least one special education provider [such as a speech pathologist] of such child
F. Due Process/Discipline
1. Due Process Procedures - IDEA
a. Parental notice of due process rights 34 CFR §300.503 & 300.504
i. The district is required to provide notice of the procedural safeguards to parents upon:
(1). Initial referral for evaluation (for IDEA eligibility)
(2) Each notification of an IEP meeting
(4) Upon receipt of a request for due process.
ii. This notice must contain information about parents/students rights with regard to:
(1) Independent educational evaluation
iii. The notice must be in understandable language. See regulation 34 CFR 300.503(c) for a definition of "understandable language."
b. Parents’ options for resolving differences with the district regarding the IEP, placement, eligibility or other IDEA issue related to their child?
ii The choice of method is dependent both on the facts of the case and on the outcome of methods which have been previously attempted. Often more than one method is necessary to resolve the problem.
iii. Independent Educational Evaluation(IEE): Parents may request an independent evaluation if they disagree with the manner in which an evaluation was completed.
iv. IEP: Parents may request an IEP at any time if they disagree with the current IEP or placement.
v. Mediation: 34 CFR §300.506 A district cannot require a parent to choose mediation over any other problem solving technique, but it must make the option of mediation available to parents if they so choose. Mediation must be free to the parent and provided by qualified, impartial mediators trained in effective mediation techniques. If a parent refuses to attend mediation, the district may require the parent to meet with a disinterested party who will inform the parent of the potential benefits of mediation. A request for mediation stays a request for a due process hearing and cannot be provided in lieu of a hearing. Information garnered during the mediation process cannot be used against the parent in a later proceeding, such as a due process hearing.
iv. State Level Complaint: If a parent feels that the district has violated a provision of the IDEA or its regulations, s/he may request an investigation by the SEA. However, there is no method to appeal the SEA’s ruling, nor to appeal acts of the SEA itself, because the federal complaint investigation procedure was abolished by the 1997 amendments to the IDEA. Once the complaint is filed, the SEA has a set amount of time within which to investigate the claim and issue its findings. If a violation is found, the SEA is responsible for requiring the district to come into compliance with the IDEA.
vi. The U.S.D.O.E., Office of Special Ed. Programs (OSEP) has an independent obligation to monitor and enforce the IDEA, which it does through periodic state monitoring visits. After the monitoring visit, OSEP issues a report on the level of compliance for the entire state and its plans to enforce compliance if any violations are found. These reports are public information and are available on the OSEP website http://www.ed.gov/offices/OSERS/OSEP/index.html)
vii. Unilateral Placement: 34 CFR §300.403 If a parent feels that the student’s placement does not provide him/er with FAPE (free appropriate public education), s/he may place the student in a private placement at the parent’s expense. S/he may then request a due process hearing to seek re-imbursement for the costs of the private placement. If the hearing officer determines that the district’s placement was in violation of FAPE and that the private placement selected provided FAPE, the officer may grant the parent re-imbursement for the tuition expenses. Parents must provide prior notice to the district that they are placing the child because they do not believe s/he is receiving FAPE, in order to be successful in a later request for reimbursement. This requirement allows the district an opportunity to cure the problem and minimize its liability for tuition expenses .
c. Specific requirements for a due process hearing 34 CFR 300.507, 508, 511
i. Procedural safeguards notice, must include information about free or low cost legal services, the option of mediation. The district must also provide information about free or low cost legal services if the parent requests this information at any other time, even if a hearing has not been requested.
ii. If the parent initiates the hearing, s/he must inform the district of the nature of the problem that led to the request and the parent’s proposed solution, as well as other information. However, the district cannot delay or deny the hearing if the parent fails to provide this notice. The district is responsible for conducting the due process hearing and paying for the hearing officer.
iii. Parties have the right to-
(6) Have the student present at the hearing (parents only)
(7) Open the hearing to the public.(parents only)
(8) Obtain a free copy of the hearing findings of fact and decision (parents only)
(9) The hearing officer must issue his/er decision within 45 days of the request for the hearing, and the SEA must complete its appeal within 30 days of the request for an appeal.
(10) Hearing officers cannot be employed by the district or SEA, and the district must maintain information about qualifications of the potential officers.
(11) Each hearing and appeal involving oral argument must be conducted at a time and place that is reasonably convenient to the parents and student. d. Appeals
i. After the due process hearing has been appealed to the SEA, the parent’s next level of appeal is a suit in state or Federal district court. The District Court decision can then be appealed to the Circuit Court and U.S. Supreme Court (assuming cert. is granted). Federal court suits and appeals are granted without regard to jurisdictional amount. 34 CFR 300. 510, 512
e. Attorney Fees
i. Reasonable attorneys fees can be awarded by a court to a prevailing parent.
ii. They are generally not allowed to prevailing districts except in cases where the behavior of the parent’s attorney is sanctionable.
ii Fees are not allowed for parents if the parents did not respond to a written offer of settlement within 10 days and the relief obtained was not more favorable to the parents than the offer of settlement was.
iii Fees cannot be awarded for services provided at an IEP meeting unless it is convened as a result of a hearing or lawsuit. Fees can only be granted for services at a mediation that took place prior to a due process hearing at the SEA’s discretion.
iv Fees can be reduced by the court if the parent "unreasonably protracted" the proceedings and the district did not. They can also be reduced if the amount of fees unreasonably exceeds the hourly rate prevailing in the community for similar services, the time billed was excessive in light of the nature of the action or proceeding, or, the parent’s attorney did not include the appropriate information in the hearing request. 34 CFR 300. 513
c Placement during appeals 34 CFR 300.514
i. The student remains in the placement s/he was in at the time the request for due process was filed, unless both parties agree differently. This doctrine is called "stay put." The only exception to this is in the case of a student with certain types of gun or drug violations or a hearing officer has deemed the student dangerous in a special expedited hearing. In such situations, the student may be placed in an interim alternative educational setting for up to 45 days or longer if approved by a hearing officer
a. Why is discipline important in an AT context? Behavior as expression.
iii. Social exclusion
iv. physical discomfort
v. sense of control over environment
i Laptop with word prediction software for student with ADHD/Dyslexia reduced off task behaviors. Student who could only have AAC device during "speech time" acting out/biting.
c. Special Factors
i. Behavioral Intervention Plan (BIP) and AT must both be considered by IEP team as special factors in the development of IEP. AT in all circumstances. BIPs when student has behavioral problems. 34 CFR 300.346(a)(2).
i. A behavior management plan is used to pro-actively address the student’s inappropriate behaviors. It is based on a functional behavioral assessment (FBA). An FBA is an assessment which attempts to determine what purpose the behavior serves for the student and to find alternative ways for the student to fulfill the same need. Such a plan can be highly beneficial to both the school and the student, by teaching the student other ways to get his/er needs met. Repeated suspensions not only fail to teach the student appropriate alternatives, they can also cause the student to fall behind academically, resulting in lowered self esteem and the increased likelihood that the student will either stop trying or drop out of school.
ii Behavior management plans can be created for any student upon the direction of the IEP team. They are required for all students who have been excluded from school for more than ten days or have had a change of placement.
ii 34 CFR 300.520...(b)(1) "Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under §300.519, including the action described in paragraph (a)(2) of this section-(i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan.(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior.(2) As soon as practicable after developing the plan described in paragraph (b)(1)(i) of this section, and completing the assessments required by the plan, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.(c)(1) If subsequently, a child with a disability who has a behavioral intervention plan and who has been removed from the child's current educational placement for more than 10 school days in a school year is subjected to a removal that does not constitute a change of placement under §300.519, the IEP team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary.(2) If one or more of the team members believe that modifications are needed, the team shall meet to modify the plan and its implementation, to the extent the team determines necessary...
e. Discipline generally, see 34 CFR 300. 519 - 300. 529
i. Read these carefully if the district is attempting to remove your client from any educational program or service due to his/er behavior.
G. § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
a. Students whose disabilities do not meet the criteria for special education, but who still may need some specialized assistance, including assistive technology, are covered by Section 504. U.S. Dept. of Ed., Joint Policy Memorandum, 18 IDELR 116 (9/16/91); OSEP Policy Letter to Teague, 20 IDELR 1462 (2/15/94).
b. Under Section 504, schools must take reasonable steps to ensure that these students have access to the full range of programs and activities offered by the school. 34 C.F.R. §§ 104.4, 104.22, 104.34, 104.37. See, Eldon (MO) R-I School District, EHLR 352:145 (OCR, 1/16/86); Beaver Dam (WI) Unified Sch. Dist., 26 IDELR 761 (OCR, 2/27/97)(Access to chorus room and auditorium); Saddleback Valley (CA) Unified Sch. Dist., 27 IDELR 376 (OCR, 5/5/97).
a. Regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of non disabled students are met. 34 C.F.R. § 104.33(b)(1).
b. Without cost to the student or to his or her parents, except for those fees that are imposed on non disabled students or their parents. 34 C.F.R. § 104.33(c)(1).
c. The U.S. Department of Education, in a policy memorandum about attention deficit disorders, indicated that the following services are available under Section 504. U.S. Dept. of Ed., Joint Policy Memorandum, 18 IDELR 116 at 118 (9/16/91). (Note that all students with disabilities being educated under IDEA are also covered by Section 504.):
State educational agencies and local education agencies should take the necessary steps to promote coordination between special and regular education programs. Steps also should be taken to train regular education teachers and other personnel to develop their awareness about ADD and its manifestations and the adaptations that an be implemented in regular education programs to address the instructional needs of these children. Examples of adaptations in regular education programs could include the following:
i.. Providing a structured learning environment
ii. Repeating and simplifying instructions about in-class and homework assignments
iii. Supplementing verbal instructions with visual instructions
iv. Using behavioral management techniques
v Adjusting class schedules and modifying test delivery
vi.. Using tape recorders, computer-aided instruction, and other audio-visual equipment
vii. Selecting modified textbooks or workbooks
viii. Tailoring homework assignments.
Other provisions range from consultation to special resources and may include reducing class size; use of one-on-one tutorials; classroom aides and note takers; involvement of a "services coordinator" to oversee implementation of special programs and services, and possible modification of nonacademic times such as lunchroom, recess and physical education.
a. Each student with a disability is to be educated with students who are not disabled to the maximum extent appropriate.
b. Students are to be placed in the regular educational environment unless it is demonstrated by the school that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.
c. For students placed in a setting other than the regular educational environment, the school shall take into account the proximity of the alternate setting to the person's home. 34 C.F.R. § 104.34(a).
4. Development of 504 plan
a. District required to develop a procedure to determine the student's needs. Districts may choose to simply use the IEP procedures under IDEA to determine a student's needs under Section 504. 34 C.F.R. §§ 104.33(b)(2), 104.36.
b. If not, the procedures developed must include the following:
i. The student must be provided with a comprehensive, individualized evaluation of his or her needs, with regular reevaluations.
ii. Decision must be made by a group of people, knowledgeable about the child, the evaluation information and the placement options. 34 C.F.R. § 104.35(c).
iii. Must involve the parents. See 34 C.F.R. § 104.36.
vi. Needs must be specifically identified, in writing, but no requirement for an IEP. OCR Senior Staff Memorandum, EHLR 307:01 (10/24/88).
5. Due process
a. Parents have due process rights if they disagree with district's recommendations under Section 504, including the right to an impartial hearing. 34 C.F.R. § 104.36.
b. Does not include the right to an independent evaluation at District expense.
c. Does include "status quo." OCR Policy Letter to P. Zirkel, 22 IDELR 667 (5/15/95).
6. Assistive technology
a. If a disabled student, who is not receiving special education services, needs an assistive technology device to fully participate in school activities, Section 504 may require that the school provide the device. U.S. Dept. of Ed., Joint Policy Memorandum, 18 IDELR 116 at 118 (9/16/91); Colton Joint (CA) Unified Sch. Dist., (OCR, 4/7/95).
b. Section 504 may also require the school to pay for training, repairs and maintenance.
c. Examples of assistive technology devices which could be funded by school districts under Section 504:
i. Modification and adaptation of a computer to enable a student with quadriplegia to use the computer without assistance. Colton Joint (CA) Unified Sch. Dist., (OCR, 4/7/95).
ii. Classroom hearing assistive device and reduction of noise levels for student with hearing impairment. Cobb County (GA) Sch. Dist., 27 IDELR 229 (OCR, 5/22/97).
iii. Use of computer for student with mobility impairment to access library (district was not required to install an elevator to make the library accessible. Newton (MA) Pub. Schs., 27 IDELR 233 (OCR, 5/30/97).
vi. Use of closed caption decoder for student with a hearing impairment while viewing videotapes. Chapel Hill-Carrboro (NC) City Schs., 27 IDELR 606 (OCR).
v. Use of tutorial software and lap top computer for student with narcolepsy. Bacon County (GA) Sch. Dist., 29 IDELR 78 (OCR 3/13/98).
vi. Use of Arkenstone scanner to scan and read text for an LD student. However, OCR determined that there was no violation of Section 504 when the student was not allowed to use the device for a State reading exam. Alabama Dept. of Educ., 29 IDELR 249 (OCR 4/10/98).
vii. Child who cannot sit at conventional desk because of physical disability.
(1) The school must takes reasonable steps to ensure that the child can participate in a regular classroom.
(2) It may have to purchase a specially designed desk to allow the child to sit during the school day on his or her wheelchair.
viii. Child with vision problem who cannot read from a conventional computer screen.
(1) Under these circumstances, the school will probably be required to purchase a separate, special monitor or computer screen overlay to enlarge the characters on the screen.