January 11, 2017: Supreme Court to Hear Case on Educational Benefit for Special Education Students

Tomorrow the Supreme Court, in the case of Endrew F. v. Douglas Co. School District, will hear oral arguments on whether the school district is obligated to provide “merely more than de minimis” or “meaningful” benefit to special education students. The US Courts of Appeal have been applying these two different standards. The Supreme Court decision in Endrew will clarify across the United States the standard of educational benefit required by school districts.

California Law

Currently California recognizes Board of Education v. Rowley (1982) 458 U.S. 176, a Supreme Court case which held that IDEA provides the basic floor of opportunity and is designed to provide educational benefit to students with special needs. Special education students are not ensured the ability to “maximize their potential commensurate with the opportunity provided” to typically developing peers. California, based on Ninth Circuit cases, uses the phrases “educational benefit,” “some educational benefit”, or “meaningful educational benefit.”

Solicitor General’s Brief

The Solicitor General, at the request of the US Supreme Court, filed a brief urging the Supreme Court to grant the petition to hear the Endrew case. The Solicitor General’s advice included a reminder that resolving the conflicts between the different US Courts of Appeal will “ensure that millions of children with disabilities receive a consistent level of education.” The Solicitor General’s brief argues in favor of a higher standard than “more than de minimis” for students with disabilities. The Solicitor General supports a requirement that “offers each eligible child an opportunity to make significant educational progress, in light of his particular needs and capabilities.”

Why is this Important

The ruling in Endrew will clarify the level of educational benefit to be provided by the school district. If the Supreme Court follows the advice of the Solicitor General this will be a great for special education students. If the Supreme Court limits educational benefit to “de minimis” that will not be a win for special education students.

Oral arguments will be heard tomorrow. It will take some time before a ruling is issued. Follow my blog to keep up to date on this issue.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

PUBLIC CHARTER SCHOOLS: IDEA

On December 28, 2016, the Office of Special Education Rehabilitative Services (OSERS), in cooperation with the US Department of Education’s Office of Civil Rights (OCR), issued guidelines regarding public charter schools obligations under IDEA. OCR issued guidelines regarding public charter schools under Section 504 of the Rehabilitation Act of 1973. OSERS guidance states that children who attend public charter schools retain all protections under IDEA as they would if they were enrolled in a traditional school. Charter schools that do not operate as a local educational agency (LEA) or are not part of a LEA are not addressed in OSERS guidelines.

 

If a public charter school is its own LEA then it holds responsibility for enduring the rights of students with disabilities under IDEA. If the public charter school operates under a LEA then the LEA is responsible for ensuring the rights of students with disabilities are not violated.  The responsible party shall ensure the development and implementation of a child’s IEP.

If a child transfers into a public charter school, the new LEA must take steps within a reasonable period of time to avoid any undue interruption in the provision of services. A child with an IEP shall not remain at home until a new IEP is developed by the new LEA.  If a child transfers from another school and the public charter school is unable, after reasonable attempts, to obtain a copy of the child’s IEP the new public charter school LEA or LEA which includes the public charter school is not responsible to provide special education and related services. However, the parents of the child with a disability and new LEA may agree for the provision of special education and related services while the school conducts an assessment of the child’s disability.

Most of the requirements of IDEA are the same for public charter schools as traditional public schools. Child Find, Procedural Safeguards, due process rights, FAPE, LRE, and inclusion in extracurricular activities do not change. Public charter schools must follow the requirements of IDEA. Virtual (online) charter schools are only able to escape responsibility if they reassign IDEA responsibilities to another entity.

A public charter school cannot dis-enroll a child with a disability without first convening an IEP meeting. Outside of disciplinary action, dis-enrollment is considered a placement change.

If a public charter school that is part of an LEA closes, the LEA is responsible for ensuring the provision of FAPE. If a public charter school that is its own LEA closes, the state educational agency is responsible for the provision of FAPE. The responsible agency must ensure an appropriate placement is proposed for the child.

 

PUBLIC CHARTER SCHOOLS: 504 PLANS

On December 28, 2016, the US Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague letter regarding students with disabilities and public charter schools. The letter addresses application of Section 504 of the Rehabilitation Act of 1973 (hereafter “Section 504”) and IDEA. This blog will focus on OCR’s guidance on Section 504.

Application of Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act prohibits discrimination on the basis of a child’s disability by schools which receive Federal financial assistance. This includes public charter schools that operate as local educational agencies.

Students with disabilities are also protected under Title II of the Americans with Disabilities Act (hereafter “Title II”). Title II regulations prohibit discrimination by state and local governments regardless of their funding. Violations of Section 504 also typically qualify as violations of Title II.

Students who have IEPs under IDEA are also protected by Section 504. Students with 504 Plans are not necessarily protected under IDEA.

The protections of Section 504 apply equally to traditional brick-and-mortar as well as public charter schools.

Recruitment and Application Proess for Charter Schools

Public charter schools are prohibited from utilizing discriminatory practices in the recruitment of their students. They must also ensure a nondiscriminatory application procedure is established. Schools may not categorically state the following exclusions in their recruitment materials, nor may they use these categories to deny admission:

  • Based directly on a student’s disability;
  • Based indirectly on student’s disability; and
  • Any statement that would support a violation of Section 504.

Accommodations in the application process shall be made to ensure equal access to students with disabilities. These accommodations might include large print materials, translation, etc.

Public charter schools are may inquire whether a student has a disability during the application process so long as the school has a legitimate reason for making the request and they are not collecting the information as the sole criteria to determine eligibility.  Permissible inquiries include: remedial action by the public charter school if OCR made a past determination of discrimination, public charter school is taking action to remediate conditions which resulted in limited participation by students with disabilities, or the public charter school is set up to serve the educational needs of students with a particular disability to determine if the student has the disability.

504 Protections

A student who has a physical or mental impairment that substantially limits a major life activity is entitled to protections under Section 504. These protections include, without limitation:

  • Procedural Safeguards
  • 504 team evaluation
  • 504 Plan
  • Entitlement to FAPE
  • Right to participate in extracurricular and nonacademic activities
  • Right to transportation
  • Right to protections during disciplinary actions

Students in public charter schools are entitled to the same protections as traditional brick-and-morter schools.

This process for establishing a 504 Plan is further explained in my previous blog on the subject https://specialedlegaljourney.com/2016/09/07/section-504-of-the-rehabilitation-act-of-1973/.

Sample modifications and accomodations have also been addressed in a previous blog: https://specialedlegaljourney.com/2016/10/14/504-plans-sample-modifications-and-accommodations/

 

If you have any questions regarding this topic, please contact Kristin Springer at (925) 551-1041.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

Restraint and Seclusion of Students with Disabilities

“Federal investigators cite harsh discipline in special education at Bay Area school,” is a headline nobody wants to see regarding any school, anywhere. Unfortunately this is a real headline from August 2016. (https://edsource.org/2016/federal-investigators-cite-harsh-discipline-in-special-education-at-oakland-district/567767) On December 28, 2016, the US Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter regarding the use of restraints and seclusion of students with disabilities. The letter was written in response to a noticed disparity in the use of restraints and seclusion of students with disabilities, raising the questions of whether the practices used were discriminatory.

General Information

School districts have an obligation to evaluate any student who needs or whom the district has reason to believe needs special education or related services because of a disability. Among other things, a student’s disability can be caused by social, emotional, or behavioral needs. Depending on the nature of the needs, the school may implement a 504 Plan or IEP to address the needs of the student with a disability.

If a student is already identified as a student with a disability, the school has an obligation to consider alternate approaches or services after any incident whereby the school uses restraint or seclusion. If necessary, the school district may need to re-evaluate the student to gain the information to better understand the student’s needs.

School districts should never use mechanical restraints. Physical restraint and seclusion should only be used by a trained school official if a child’s behavior poses imminent danger of serious physical harm to self or others. (Citing OCR’s Dear Colleague Letter, May 15, 2012) Seclusion is not the same as a time-out, which is a monitored separation in a non-locked setting. Time-outs are an approved method for calming students down.

School districts should not use repeated restraint and seclusion where alternative methods are available to prevent imminent danger to self or others. The school should evaluate the student and consider whether positive behavioral interventions and supports could mitigate or eliminate the need for restraint and seclusion.

Discrimination

School districts discriminate on the basis of disability in its use of restraint or seclusion by:

1.)    Unnecessarily treating students with disabilities differently from students without disabilities;

2.)    Implementing policies, practices, procedures, or criteria that have an effect of discriminating against students on the basis of disability or defeating or substantially impairing accomplishment of the objectives of the school district’s program or activity with respect to students with disabilities; or

3.)    Denying the right to a free and appropriate public education (FAPE).

Denial of FAPE

If a Section 504 or IEP Team determines the use of restraint or seclusion resulted in the denial of FAPE for a student with a disability, the student is entitled to:

  • Compensatory educational services; and/or
  • Other appropriate relief to ensure the student’s continued equal access to the school’s educational program.

The Section 504 or IEP team may consider other placement options. However, before implementing any changes, the team must consider whether the student may remain in their current placement with the use of supplementary aids and services.

You can read the “Dear Colleague” letter:  https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

 

If you have a child with behavior problems, you may also wish to read my blog on the subject. https://specialedlegaljourney.com/2016/09/21/discipline-functional-behavioral-assessments-and-behavioral-intervention-plans/

 

If you have any questions regarding this topic, please contact Kristin Springer at (925) 551-1041.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

 

IMPORTANT: UPDATED FEE STRUCTURE

In anticipation of the new year I have updated my fee structure for special education services. Many families are being denied assessment requests or eligibility by the schools. They give up without even determining what rights may be legally available to them. This is especially true in the case of children with dyslexia, ADD/ADHD, Asperer’s Syndrome, and other “mild” disabilities.

Many families don’t understand how to determine if their child is receiving a free and appropriate public education in the least restrictive environment. They also don’t know how to look at an IEP and determine if it complies with legal standards. This can lead to a lack of progress for their child. If you know anyone who has a child with a 504 Plan, IEP, or suspected disability, please have them call me.

In most cases families who have a child with a disability will be working with their respective school district for many years. It is vital that the families understand their rights and role in advocating for their child. It is also vital to resolve issues with the school district in a respectful way that asserts your rights while maintaining a good working relationship.

Here is the new fee structure:

Initial Consultation (20 minutes) With Sample Letter to School Requesting Records: Free

During this meeting we will discuss your child’s disability, your history with the school district, and attempt to identify any areas of need. We will discuss what steps can be taken to determine if your child is receiving a free and appropriate public education in the least restrictive environment.

Document Request, File and IEP Review, and Recommendations:   $350.00

Once a fee agreement is signed, I will ask that you execute a Release of Information so that I am able communicate directly with the school.

Upon receiving your child’s educational file I ask that you provide a copy to me. I will review it to determine if there are any obvious documents missing. In my experience, schools often only provide a portion of the child’s educational record. I will prepare a letter to the school to request additional records that should be a part of the educational file. Your child’s educational file is extremely important to your participation at your child’s IEP.

Next I will review your child’s educational file in more detail. This typically takes about an hour to an hour and a half.  I will be looking at:

  • What are the students present levels of performance?
  • Are the goals measurable?
  • Has the child been placed in the least restrictive environment?
  • Are the services related to the goals?
  • Are there any identifiable violations of the child’s free and appropriate public education?

I will schedule a 30 minute phone conference with the family to discuss any questions regarding their child’s educational file. During this call I will give you my initial impressions of your child’s educational file.

Once we complete our phone conference I will prepare a summary of my impressions and recommendations. This usually takes about an hour. We will set up an additional 30 minute phone conference to discuss my impressions and recommendations. This completes the file review process.

Document Request, File Review, and 504 Plan Recommendations:   $200.00

The process for a child with a 504 Plan is similar to the one described above for a child with an IEP. However, the review will focus on:

  • Whether the accommodations are appropriate;
  • Whether the child is receiving appropriate special services; and
  • Whether the student should be evaluated for an IEP.

A child with a 504 Plan usually does not have any assessments or classroom data to review. This is reflected in the modified price from an IEP file review.

Document Request, File Review, and Eligibility Challenges: $250.00

Has your child been assessed and denied special education? I will review your child’s educational records and current assessments to determine whether your child meets the legal standards for eligibility. I will also review your file to determine whether an Independent Educational Evaluation (IEE) is appropriate. If an IEE is appropriate I will provide a sample letter to the family. If further services are needed they will be charged on an hourly basis.

General Legal Services: Billed Hourly

All other services are billed at my current hourly rate. Please contact me for the current rate.

 

DISABLED STUDENTS GET HELP FROM EVERY STUDENT SUCCEEDS ACT

On December 15, 2015, President Obama replaced No Child Left Behind (NCLB) with Every Student Succeeds Act (ESSA).  ESSA transfers more control of education to state and local agencies. States have begun to implement state plans. The full transition should occur by the 2017-2018 school year.

Standards:

States are required to adopt challenging academic content standards and aligned academic achievement standards in mathematics, reading/language arts, and science. These standards must apply to all public school students.

States are allowed to adopt alternate academic achievement standards for student with the most significant disabilities. However, these standards must still align with the state academic standards and provide access to the general education curriculum consistent with IDEA.

Standards for disabled and non-disabled students must ensure that they are on track to pursue a post-secondary education.  Only 1% of the total student body, and approximately 10% of students with disabilities, is eligible to take the alternate assessments to receive their high school diploma.

Accountability:

Each state must look at how students are performing and make these results accessible to the public. Schools cannot use academic assessments as the sole basis for their data. Reports must be given on the results of disabled students as compared to non-disabled students.

Evidence-Based Interventions:

The ESAA supports a multi-tiered system of support and requires local education agencies to provide evidence-based interventions to students with disabilities.

Literacy Instruction:

The ESAA requires evidence-based strategies to effectively teach reading and writing to all students, including those with learning disabilities such as dyslexia. Resources are also provided to identify and intervene when students are struggling.

The ESAA authorizes the establishment of a Comprehensive Literacy Center for parents and educators to better support children who are at-risk for challenges with reading, writing, and language processing. The Comprehensive Literacy Center would serve five functions:

  • Develop/Identify tools to detect challenges early.
  • Identify evidence-based literacy instruction, strategies, accommodations, and assistive technology.
  • Provide Information to support families.
  • Develop/Identify professional development for teachers on early indicators and instructional strategies.
  • Disseminate resources within existing federal networks.

It will take time to get the center up and running.

 “Highly Qualified Teacher” in IDEA Eliminated:

IDEA has been amended to remove the definition of a “highly qualified teacher”. The definition has been replaced with the definition for “personnel qualifications”. Teachers under IDEA must now obtain a full state certification as a special education teacher or have passed the state special education teacher licensing exam, hold a license to teach special education, have at least a bachelor’s degree, and not have had certification or licensure waived on an emergency, temporary, or provisional basis.

Discipline and Positive Behavior Interventions:

State plans must address support for local educational agencies to reduce the overuse of discipline practices that remove students from the classroom. Funds may be used to implement programs and positive behavioral interventions to reduce exclusionary discipline practices.

Comprehensive Mental Health Services:

States must consult school psychologists and other specialized instructional personnel in the development of mental health services.  Mental health plans must include evidence-based, whole-school improvement. The goal of these strategies is to improve the school climate and safety, with a reduction in bullying and harassment.

 

Special Education: Expulsion

A student identified as an individual with a disability under IDEA or a student with a 504 plan are generally subject to the same grounds for suspension and expulsion which apply to students without disabilities. This blog will discuss some legal provisions under IDEA which are specific to students with disabilities under IDEA or have a 504 plan. State laws generally defer to federal law for most of the rules governing expulsion of special education students.

Students Not Yet Eligible for Special Education:

A student who is not yet eligible for special education services may be entitled to the same protections under IDEA if the district had knowledge, or should have known, that the student is disabled before the violation occurred. If a request for evaluation is made during the time the student is subject to disciplinary measures, the evaluation must be done in an expedited manner. Until the evaluation is completed, the student shall remain in the education placement determined by school authorities.

Manifestation Meeting:

When a student will be removed from school for more than 10 days they are entitled to a manifestation meeting. A special education student may not be expelled for more than 10 days if the misconduct is a manifestation of their disability.

A manifestation determination meeting is a meeting of relevant IEP team members. The IEP team must determine:

  • Was the behavior caused by, or did it have a direct and substantial relationship to, the student’s disability; and
  • Was the behavior the direct result of the district’s failure to implement the IEP?

If the answer is yes to either question, the student cannot be expelled and change of placements will require the consent of the parents.

A special education student may be placed in an interim alternative education setting for up to 45 days, whether or not the behavior is a manifestation of his or her disability, if the student carried or possessed a weapon, possessed or used illegal drugs, or inflicted serious bodily injury on another person.

Disputing Manifestation Determination:

If you disagree with the manifestation determination you can file for an expedited due process hearing. If your student’s conduct was determined to be unrelated to their disability then the district can choose to discipline the student in the same way as non-disabled students.

If you disagree with the due process hearing you can file an appeal to state or federal court. You have 90 days to file an appeal.

Functional Behavioral Analysis and Behavior Intervention Plan:

A student who is recommended for expulsion should receive a functional behavioral assessment. It may be necessary to implement a behavioral intervention plan. For more information see my blog regarding this topic: https://specialedlegaljourney.com/2016/09/21/discipline-functional-behavioral-assessments-and-behavioral-intervention-plans/

Expulsion is not a matter to be taken lightly. The consequences can be serious. In order to protect your special education student you must understand the differences between the laws that apply to general education students and those which apply to special education students.

If your child has been suspended or recommended for expulsion, call Kristin at (925) 551-1041.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

 

General Education and Expulsion

Students who display inappropriate behavior at school may face a recommendation of expulsion. Expulsion is the removal of a student from the immediate supervision and control, or the general supervision, of school personnel.

A student may be expelled for acts related to a school activity or school attendance and applies:

  • While on school grounds;
  • While going to or coming from school;
  • During the lunch period, whether on or off the school campus; and
  • During, going to, or coming from a school-sponsored activity.

Expulsion is a serious matter and should not be taken lightly. This is a general overview of expulsion. There are many procedural aspects of the law that I am unable to go into in one blog. If you have specific questions feel free to contact me directly.

Discretionary Expulsion:

A student may be recommended for expulsion and expelled for various types of conduct. These categories include:

  1. Inflicted physical injury, unless in self-defense
  2. Possessed dangerous objects
  3. Possessed drugs or alcohol   (policy determines which offense)
  4. Sold look alike substance representing drugs or alcohol
  5. Committed robbery/extortion
  6. Caused damage to property, including electronic files and databases
  7. Committed theft
  8. Used tobacco (policy determines which offense)
  9. Committed obscenity/profanity/vulgarity
  10. Possessed or sold drug paraphernalia
  11. Disrupted or defied school staff
  12. Received stolen property
  13. Possessed imitation firearm
  14. Committed sexual harassment
  15. Harassed, threatened or intimidated a student witness
  16. Sold prescription drug Soma
  17. Committed hazing
  18. Engaged in an act of bullying, including, but not limited to, bullying committed by means of an electronic act, as defined in subdivisions (f) and (g) of Section 32261, directed specifically toward a pupil or school personnel.

Please note that this is an abbreviated version of violations set forth in the California Education Code.

The school shall determine whether other means of correction are feasible to bring about proper conduct.  Other means may include, but are not limited to, implementation of behavioral contracts, anger management or self-esteem workshops, and requiring the student to perform community service.

If other means have been implemented and failed then expulsion will likely be recommended. Expulsion will also be recommended if the school determines the presence of the student causes a continuing danger to the physical safety of the pupil or others.

Mandatory Expulsion:

There are times when a school has no choice but to recommend expulsion and thereafter expel a student. They are:

1)  Possessing, selling or furnishing a firearm.
2)  Brandishing a knife at another person.
3)  Unlawfully selling a controlled substance.
4)  Committing or attempting to commit a sexual assault or committing a sexual battery.
5)  Possession of an explosive.

A one-year expulsion is required for a student expelled for any of the above reasons, although the governing board may set an earlier date on a case-by-case basis.

Student’s Right to Expulsion Hearing/Decision:

The student is entitled to a hearing to determine whether the student should be expelled. The hearing shall be held within 30 school days after the principal or superintendent determines that one of the acts listed as grounds for expulsion has occurred.  Once the hearing starts, all matters must be pursued with reasonable diligence and concluded without unnecessary delay. The Board’s decision on whether to expel a student shall be made within ten (10) school days after the conclusion of the hearing, unless they don’t meet weekly then they have forty (40) days. A student facing expulsion is entitled to a written notice of the decision to expel the student.

Decision Not to Enforce:

In certain circumstances, the Board may decide whether to suspend the enforcement of an expulsion, taking into consideration:

  • The student’s pattern of behavior;
  • The seriousness of the misconduct; and
  • The student’s attitude towards the misconduct and willingness to following a rehabilitation plan.

Right to Appeal:

The student is entitled to file an appeal of the expulsion decision with the County Board. The appeal must be filed within 30 days of the Board’s decision to expel, even if the expulsion action is suspended or the student is placed on probation.

If your child has been suspended or recommended for expulsion, call Kristin at (925) 551-1041.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

 

 

 

CAN A STUDENT WITH AN AUTISM SPECTRUM DISORDER QUALIFY FOR SPECIAL EDUCATION IF THEY ARE ACADEMICALLY PASSING?

Yes. Autism Spectrum Disorder (ASD) is a neurodevelopmental disorder that impairs a student’s ability to communicate and interact with others. It also includes repetitive behaviors, interests, and activities. These issues cause significant impairment in social, occupational, and other areas of functioning. Not all students with an ASD struggle academically. This can result in a school’s denial of eligibility for special education. However, academics are only one out of several areas that can lead to the necessity of special education and related services.

Assessments

If you suspect your student has an ASD it is important to request an assessment from your school district. The school district has 15 calendar days to provide you with an assessment plan. Review the plan and make sure the district plans to test cognitive, development, and language. They should also conduct a parent interview, observational assessment (social/behavioral), and a review of the student’s medical file.

Eligibility

In order to qualify for special education under IDEA a student must:

a.)  Fall into 1 of 13 categories of disability. Autism is one of those disabilities.

b.) The student must also show that they, by reason thereof, needs special education and related services.

To put it simply, ask yourself these questions:

  • Does the student have a disability?

Districts are obligated to evaluate students in all areas of suspected disability. The law does not limit the evaluations to performance on standardized tests or grades.

  • Does the disability affect the students’s educational performance?

The courts have established that a students’s educational needs include academic, social, health, emotional, communicative, physical, and vocational needs. (Seattle School Dist. No. 1 vs. BS (9th Cir. 1996) 82 F3d. 1493.

  • Does the student need special education and related services?

IDEA defines special education as “specially designed instruction, at no cost to the parent or guardians, to meet the unique needs of a student with a disability.” Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a student with a disability to benefit from special education. Related services include things such as behavioral, speech, and other support as set forth in 34 CFR 300.34.

Developing the IEP

The IEP must contain a description of the student’s present levels of academic achievement and functional performance. This portion of the IEP is used to identify the student’s strengths and weaknesses in academics and functional areas. Functional skills include skills or activities that are not considered academic or related to a student’s academic achievement. Instead “functional” is often used in the context of routine activities of everyday living. Social skills are categorized as functional skills.

Conclusion

IEP teams must evaluate each student as an individual. If the team uses a multi-disciplinary approach in their evaluation they will have a better understanding of the student’s strengths and weaknesses. Eligibility cannot be based on academics alone. If the student is a student with a disability and needs special education and related services, they qualify. Education goes beyond academics and includes the functional skills necessary to navigate everyday life.

If you suspect your student has an ASD and you have been denied services, contact Kristin Springer for a free 20 minute consultation at 925-551-1041.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

INCLUSION: WHAT’S THE LAW AND THE VALUE OF INPUT FROM GENERAL EDUCATION TEACHERS

Special education and mainstream students both benefit from being educated in a classroom together.  Some of those benefits include increased social initiations, peer role models, greater access to general curriculum, and enhanced skill acquisition. Inclusion works best for the whole class when we support the student and teacher as intended by the law.

Legal Requirement: Least Restrictive Environment (LRE)

Once a student with a disability’s program is developed the IEP team must determine where the program will be executed. This is referred to as placement. Students with a disability are entitled to be educated in the LRE. Removal of students with disabilities occurs only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. 1412(5)(A)

There are several levels of LRE:

  • Regular classroom: student receives a prescribed program under the direction of the regular classroom teacher.
  • Regular classroom with consultation: student receives a prescribed program under the direction of the regular classroom teacher who is supported by ongoing consultation from the special educators (i.e. special education teachers, psychologists, behaviorists, etc.)
  • Regular classroom with supplementary instruction and services: student receives a prescribed program under the direction of the regular classroom teacher. The student also receives instruction and related services from the special educator and a paraeducator.
  • Resource room: Student is in the regular classroom for a majority of the school day but goes to the special education resource room for specialized instruction for part of each school day.
  • Separate classroom/school: Student receives special education and related services under the direction of a specially trained staff in a specially designed classroom or facility.
  • Residential school: Student receives special education and related services from specially trained staff in a residential facility in which children receive care or services 24 hours per day.
  • Homebound or hospital: Student receives special education and related services at home or in a hospital program.

Individual Considerations

The IEP team must consider the continuum of placement options. Students may not be categorized into a particular group and offered placement based on that particular category. The level of placement must always be individualized with the student in mind.

Board of Education, Sacramento City Unified School District v. R. Holland (1992) 786 F.Supp. 874 provides four factors to consider:

  • Educational benefits available to the child in a regular classroom, supplemented with appropriate aids and services, as compared to education benefits of a special education classroom;
  • The non-academic benefits to the handicapped child of interaction with non-handicapped children;
  • The effect of the presence of the handicapped child on the teacher and other children in the regular classroom; and
  • The costs of supplementary aids and services necessary to mainstream the handicapped children in the regular classroom setting.

Using the factors above, the IEP team’s consideration should always start at the regular classroom. If the regular classroom, unsupported, is not the appropriate placement the next consideration would be the regular classroom with consultation services to the teacher or supplementary aides and services. Discussions should progress through the continuum until an appropriate placement is determined.

The Value of General Education Teachers Input

I have heard concerns from both parents and teachers about the impression that “general education teachers don’t want students with disabilities in their classrooms.” In most cases this isn’t true. Teachers want to be able to support all students in their classrooms. Concerns voiced by general education teachers often reflect a broader issue that students are being placed into general education classrooms without the appropriate supports This creates a difficult environment for the teacher, disabled student, and non-disabled peers.

If a student will spend any part of their day in the mainstream classroom, the IEP team is required to have a general education teacher as a part of the team. General education teachers should have the ability, without the fear of retaliation, to voice their input into an IEP meeting. If a student will be included into the mainstream classroom, a general education teacher can provide valuable insight into training needs, curriculum modifications, behavioral concerns, and other support needs.