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A SHORT HISTORY OF A SHORT HISTORY OF SPECIAL EDUCATIONSPECIAL EDUCATION

Special Education as we know it Special Education as we know it started with Public Law 94-142 started with Public Law 94-142 (Education of All Handicapped (Education of All Handicapped Children Act -- EHA) of 1975Children Act -- EHA) of 1975

Before this act, most special Before this act, most special educational services were for those educational services were for those with severe physical handicapped with severe physical handicapped and were in separate school setting.and were in separate school setting.

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The first special education The first special education diagnostic center opened on the diagnostic center opened on the UNO campus in the fall of 1963.UNO campus in the fall of 1963.

94-142 required states that receive 94-142 required states that receive federal funs to provide:federal funs to provide:– a free appropriate public education a free appropriate public education

(FAPE) (FAPE) – an individual educational plan (IEP) an individual educational plan (IEP)

developed with parental involvement.developed with parental involvement.– and education in the least restrictive and education in the least restrictive

environment (LRE).environment (LRE).– these services from age 3 through 21.these services from age 3 through 21.

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PL 101-476PL 101-476 Individuals with Individuals with Disabilities Education Act Disabilities Education Act (IDEA) (1990)(IDEA) (1990) – the word – the word “handicapped” replaced with “handicapped” replaced with “disabled”.“disabled”.– Reaffirmed FAPEReaffirmed FAPE

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The Individuals with The Individuals with Disabilities Disabilities

Educational Improvement Educational Improvement Act of 2004Act of 2004

Discipline of Children with Discipline of Children with DisabilitiesDisabilities & &

Children with Suspected Children with Suspected Disabilities: What’s New?Disabilities: What’s New?

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Disciplinary Actions for Children with Disciplinary Actions for Children with Disabilities & Disabilities &

Children with Suspected DisabilitiesChildren with Suspected Disabilities

Authority of School PersonnelAuthority of School Personnel

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Removals that Cumulate to Not Removals that Cumulate to Not More than Ten School DaysMore than Ten School Days

School personnel may remove a child School personnel may remove a child with a disability from his or her current with a disability from his or her current educational placement for not more educational placement for not more than 10 school days for violation of a than 10 school days for violation of a student code of conductstudent code of conduct– to the same extent that those to the same extent that those

alternatives apply to non-disabled alternatives apply to non-disabled children.children.

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Removals that Cumulate to Not Removals that Cumulate to Not More than Ten School DaysMore than Ten School Days

Such a removal may be to an appropriate Such a removal may be to an appropriate interim alternative educational setting, interim alternative educational setting, another setting, or a suspension.another setting, or a suspension.

Services do not have to be provided during a Services do not have to be provided during a such a removal if the child with disabilities such a removal if the child with disabilities has been removed for 10 school days or less has been removed for 10 school days or less in the same school year.in the same school year.

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Removals that Exceed Removals that Exceed Ten (10) School DaysTen (10) School Days School personnel may seek to order a School personnel may seek to order a

change in placement of a child with a change in placement of a child with a disability who violates a code of disability who violates a code of student conduct that would exceed 10 student conduct that would exceed 10 school days.school days.

In such instances, the child’s behavior In such instances, the child’s behavior that gave rise to the violation of a that gave rise to the violation of a code of student conduct may not be a code of student conduct may not be a manifestation of the child’s disability.manifestation of the child’s disability.

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Removals that Exceed 10 School Removals that Exceed 10 School DaysDays

Where the behavior is not a manifestation of the Where the behavior is not a manifestation of the child’s disability, the relevant disciplinary child’s disability, the relevant disciplinary procedures that apply to non-disabled children procedures that apply to non-disabled children must be applied for the same duration and in the must be applied for the same duration and in the same manner that they apply to non-disabled same manner that they apply to non-disabled children.children.

However, the child with a disability must However, the child with a disability must continue to receive a free appropriate public continue to receive a free appropriate public education (although it may be provided in an education (although it may be provided in an interim alternative educational setting) even interim alternative educational setting) even when he or she has been suspended or expelled when he or she has been suspended or expelled from school.from school.

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Removals that Exceed 10 Removals that Exceed 10 School DaysSchool Days

Educational services must be Educational services must be continued for such children during this continued for such children during this type of change in placement.type of change in placement.

The interim alternative educational The interim alternative educational setting in which the child is placed setting in which the child is placed during such a removal must be during such a removal must be determined by the IEP team.determined by the IEP team.

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Case-By Case DeterminationCase-By Case Determination

When a child with a disability violates a When a child with a disability violates a code of student conduct, school code of student conduct, school personnel who are determining whether personnel who are determining whether to order a change of placement for the to order a change of placement for the child, may consider any unique child, may consider any unique circumstances on a case-by-case basis.circumstances on a case-by-case basis.

The term “unique circumstances” is not The term “unique circumstances” is not defined. defined.

This is a new provision added by the This is a new provision added by the 2004 IDEA amendments.2004 IDEA amendments.

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Special CircumstancesSpecial Circumstances

In special circumstances, school personnel In special circumstances, school personnel may remove a student with a disability to an may remove a student with a disability to an interim alternative educational setting for not interim alternative educational setting for not more than 45 school days.more than 45 school days.

The IEP team must determine the interim The IEP team must determine the interim alternative setting in which the child will be alternative setting in which the child will be placed in such special circumstances. placed in such special circumstances.

During such a change of placement to an During such a change of placement to an interim alternative educational setting, the interim alternative educational setting, the child must continue to be provided child must continue to be provided educational services.educational services.

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Special CircumstancesSpecial Circumstances

When the special circumstances When the special circumstances specified by the statute are specified by the statute are present, such a removal may be present, such a removal may be made without regard to whether made without regard to whether the child’s behavior is a the child’s behavior is a determined to be a manifestation determined to be a manifestation of the child’s disability.of the child’s disability.

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What Are Special What Are Special Circumstances?Circumstances?

The special circumstances provisions apply in three The special circumstances provisions apply in three limited circumstances:limited circumstances:– when a child with a disability “carries or possesses a when a child with a disability “carries or possesses a

weapon to or at school, on school premises, or to or at weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or a school function under the jurisdiction of a State or local educational agency”;local educational agency”;

– when a child with a disability “knowingly possesses or when a child with a disability “knowingly possesses or uses illegal drugs, or sells or solicits the sale of a uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school controlled substance, while at school, on school premises, or at a school function under the jurisdiction premises, or at a school function under the jurisdiction of a State or local educational agency”; andof a State or local educational agency”; and

– when a child with a disability “has inflicted serious when a child with a disability “has inflicted serious bodily injury upon another person while at school, on bodily injury upon another person while at school, on school premises, or at a school function under the school premises, or at a school function under the jurisdiction of a State or local educational agency”.jurisdiction of a State or local educational agency”.

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Special CircumstancesSpecial Circumstances

The provision allowing removal to The provision allowing removal to an interim alternative educational an interim alternative educational setting for infliction of “serious setting for infliction of “serious bodily injury” is new.bodily injury” is new.

It allows school personnel to order It allows school personnel to order a removal for up to 45 school a removal for up to 45 school days for such an offense.days for such an offense.

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What is Serious Bodily What is Serious Bodily Injury?Injury? School personnel seeking to use the new School personnel seeking to use the new

provision should know the definition of “serious provision should know the definition of “serious bodily injury”. bodily injury”.

““Serious bodily injury” is clearly defined as the Serious bodily injury” is clearly defined as the meaning given the term by 18 U.S.C. §1365(h)(3).meaning given the term by 18 U.S.C. §1365(h)(3).

“ “serious bodily injury” contemplates, among serious bodily injury” contemplates, among other things, an actual bodily injury of a serious other things, an actual bodily injury of a serious nature. nature.

The term The term does notdoes not include threats, possibilities, include threats, possibilities, probabilities or propensities of the student to probabilities or propensities of the student to commit bodily harm, or school personnel’s fears commit bodily harm, or school personnel’s fears or apprehension that the student may do so. or apprehension that the student may do so.

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Definitions Definitions

The term “controlled substance” The term “controlled substance” refers to a drug or other refers to a drug or other substance identified by the substance identified by the Controlled Substances Act under Controlled Substances Act under schedule I, II, III, IV or V of section schedule I, II, III, IV or V of section 202(c).202(c).

The Controlled Substances Act The Controlled Substances Act referred to is 21 U.S.C. §812(c). referred to is 21 U.S.C. §812(c).

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DefinitionsDefinitions

The term “illegal drug” as used in the IDEA The term “illegal drug” as used in the IDEA discipline provisions means a controlled discipline provisions means a controlled substance.substance.

However, a controlled substance that is However, a controlled substance that is legally used or possessed under the legally used or possessed under the supervision of a licensed health-care supervision of a licensed health-care professional is not an illegal drug under the professional is not an illegal drug under the IDEA.IDEA.

Similarly, a controlled substance that is Similarly, a controlled substance that is legally possessed or used under the authority legally possessed or used under the authority of any other provision of Federal law or the of any other provision of Federal law or the IDEA is excluded from the definition. IDEA is excluded from the definition.

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DefinitionsDefinitions

The IDEA discipline provisions define the term The IDEA discipline provisions define the term “weapon” as meaning a “dangerous weapon” “weapon” as meaning a “dangerous weapon” as that term is defined under 18 U.S.C. §930(g)as that term is defined under 18 U.S.C. §930(g)(2).(2).

The term “dangerous weapon” under 18 U.S.C. The term “dangerous weapon” under 18 U.S.C. §930(g)(2) includes devices, weapons, §930(g)(2) includes devices, weapons, instruments, materials or substances, that instruments, materials or substances, that may be animate or inanimate.may be animate or inanimate.

To be considered a “dangerous weapon”, the To be considered a “dangerous weapon”, the item must be used for, or readily capable or, item must be used for, or readily capable or, causing death or serious bodily injury.causing death or serious bodily injury.

A pocket knife that has a blade that is 2½” or A pocket knife that has a blade that is 2½” or less in length is not considered a “dangerous less in length is not considered a “dangerous weapon” under the statute. weapon” under the statute.

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DefinitionsDefinitions The term “serious bodily injury” is defined as having The term “serious bodily injury” is defined as having

the meaning given that term under 18 U.S.C. §1365(h)the meaning given that term under 18 U.S.C. §1365(h)(3).(3).

““Serious bodily injury” as defined by 18 U.S.C. §1365(h)Serious bodily injury” as defined by 18 U.S.C. §1365(h)(3) involves a bodily injury.(3) involves a bodily injury.

A “bodily injury” under the statute includes: a cut, A “bodily injury” under the statute includes: a cut, bruise, abrasion, burn, or disfigurement; illness; bruise, abrasion, burn, or disfigurement; illness; physical pain; impairment of the function of a bodily physical pain; impairment of the function of a bodily member, organ, or mental faculty; or, any other injury member, organ, or mental faculty; or, any other injury to the body, no matter how temporary.to the body, no matter how temporary.

To constitute a “serious bodily injury” under the Act, To constitute a “serious bodily injury” under the Act, the bodily injury must involve either extreme physical the bodily injury must involve either extreme physical pain, a substantial risk of death, protracted and obvious pain, a substantial risk of death, protracted and obvious disfigurement, or protracted loss or impairment of the disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.function of a bodily member, organ or mental faculty.

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Notice of DecisionNotice of Decision

When a decision is made to remove a child When a decision is made to remove a child with a disability from his or her current with a disability from his or her current placement for violation of a code of student placement for violation of a code of student conduct, the local educational agency must conduct, the local educational agency must notify the child’s parents of that decision, and notify the child’s parents of that decision, and of all procedural safeguards accorded under of all procedural safeguards accorded under 20 U.S.C. §1415.20 U.S.C. §1415.

Such a decision to initiate or change the Such a decision to initiate or change the child’s educational placement requires prior child’s educational placement requires prior written notice that complies with the written notice that complies with the provisions of 20 U.S.C. §1415(c).provisions of 20 U.S.C. §1415(c).

The required notice must be made not later The required notice must be made not later than the date that the decision to take than the date that the decision to take disciplinary action is made.disciplinary action is made.

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Manifestation Manifestation Determination ReviewDetermination Review Until a child with a disability has been removed Until a child with a disability has been removed

from his or her current placement for violation from his or her current placement for violation of a student code of conduct for more than 10 of a student code of conduct for more than 10 school days in the same school year, a school days in the same school year, a manifestation determination review (MDR) is manifestation determination review (MDR) is not required.not required.

After a child with a disability has been removed After a child with a disability has been removed from his or her current placement for violation from his or her current placement for violation of a code of student conduct for more than 10 of a code of student conduct for more than 10 school days in the same school year, a school days in the same school year, a manifestation determination review must be manifestation determination review must be conducted within 10 school days of a decision conducted within 10 school days of a decision to change a disabled child’s placement because to change a disabled child’s placement because the child violated a code of student conduct.the child violated a code of student conduct.

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Who Conducts the Who Conducts the Manifestation Determination Manifestation Determination Review?Review?

The manifestation determination must The manifestation determination must be conducted by the local education be conducted by the local education agency, the child’s parents, and agency, the child’s parents, and relevant members of the IEP team.relevant members of the IEP team.

The determination of who are relevant The determination of who are relevant members of the IEP team is made members of the IEP team is made child’s parent and the local education child’s parent and the local education agency.agency.

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What Must Be Included in a What Must Be Included in a Manifestation Determination Manifestation Determination Review?Review?

The individuals conducting the manifestation The individuals conducting the manifestation determination review must review all relevant determination review must review all relevant information in the child’s file, including the IEP, any information in the child’s file, including the IEP, any teacher observations, and any relevant information teacher observations, and any relevant information provided by the child’s parents.provided by the child’s parents.

Based upon their review of the above information, they Based upon their review of the above information, they must make the following determinations:must make the following determinations:– ““if the conduct in question was caused by, or had a if the conduct in question was caused by, or had a

direct and substantial relationship to, the child’s direct and substantial relationship to, the child’s disability; ordisability; or

– if the conduct in question was the direct result of the if the conduct in question was the direct result of the local educational agency’s failure to implement the local educational agency’s failure to implement the IEP.”IEP.”

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Manifestation Manifestation Determination ReviewDetermination Review The child’s conduct must be determined to The child’s conduct must be determined to

be a manifestation of the child’s disability be a manifestation of the child’s disability when it is determined that the child’s when it is determined that the child’s conduct:conduct:– was either caused by, or had a substantial was either caused by, or had a substantial

relationship to, the child’s disability, or relationship to, the child’s disability, or – was the direct result of the local was the direct result of the local

educational agency’s failure to implement educational agency’s failure to implement the IEP.the IEP.

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Functional Behavioral Assessment Functional Behavioral Assessment and Behavior Intervention Plansand Behavior Intervention Plans

Where it is determined that the child’s Where it is determined that the child’s conduct was a manifestation of his or her conduct was a manifestation of his or her disability, and the local educational disability, and the local educational agency had not conducted a functional agency had not conducted a functional behavioral assessment (FBA) before that behavioral assessment (FBA) before that determination, the IEP team must conduct determination, the IEP team must conduct a FBA and implement a behavioral a FBA and implement a behavioral intervention plan (BIP) for the child.intervention plan (BIP) for the child.

If a BIP has previously been developed, If a BIP has previously been developed, the IEP team must review, and modify the the IEP team must review, and modify the BIP, as necessary to address the behavior.BIP, as necessary to address the behavior.

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Return to Placement if the Return to Placement if the Behavior was a Manifestation Behavior was a Manifestation of the Child’s Disabilityof the Child’s Disability If the child’s behavior is determined to be a If the child’s behavior is determined to be a

manifestation of his disability, the child must be manifestation of his disability, the child must be returned to the placement from which he or she returned to the placement from which he or she was removed unless:was removed unless:– under the special circumstances provisions, the under the special circumstances provisions, the

child was removed to an interim alternative child was removed to an interim alternative educational setting for not more than 45 school educational setting for not more than 45 school days, for a weapons offense, an illegal drug or days, for a weapons offense, an illegal drug or controlled dangerous substance offense, or for controlled dangerous substance offense, or for infliction of a serious bodily injury; orinfliction of a serious bodily injury; or

– the parent and the local education agency the parent and the local education agency agree to a change of placement as part of the agree to a change of placement as part of the modification of the behavioral intervention modification of the behavioral intervention plan. plan.

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Continuation of Continuation of ServicesServices The IDEA requires that a free The IDEA requires that a free

appropriate public education (FAPE) be appropriate public education (FAPE) be available to all children with disabilities available to all children with disabilities between the ages of 3 and 21, inclusive, between the ages of 3 and 21, inclusive, who reside in the State.who reside in the State.

The requirement to provide a FAPE The requirement to provide a FAPE includes making a FAPE available to includes making a FAPE available to children with disabilities who have been children with disabilities who have been suspended or expelled from school.suspended or expelled from school.

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Free Appropriate Free Appropriate Public EducationPublic Education A term “free appropriate public education” A term “free appropriate public education”

means special education and related services means special education and related services which are provided under public supervision which are provided under public supervision and direction, at public expense, and without and direction, at public expense, and without charge.charge.

The special education and related services The special education and related services must meet State educational agency must meet State educational agency standards, and must include an appropriate standards, and must include an appropriate preschool, elementary school or secondary preschool, elementary school or secondary school education.school education.

In addition the services must be provided in In addition the services must be provided in conformity with an individualized education conformity with an individualized education program that meets the requirements of 20 program that meets the requirements of 20 U.S.C. §1414(d).U.S.C. §1414(d).

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Continuation of Continuation of ServicesServices A child with a disability who has A child with a disability who has

been removed from his or her been removed from his or her current placement under 20 U.S.C. current placement under 20 U.S.C. §1415(k)(1)(C) or under 20 U.S.C. §1415(k)(1)(C) or under 20 U.S.C. §1415(k)(1)(G) must continue to §1415(k)(1)(G) must continue to receive educational services receive educational services irrespective of whether his or her irrespective of whether his or her behavior is determined to be a behavior is determined to be a determination of his or her determination of his or her disability.disability.

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Continuation of Continuation of ServicesServices The purposes of the continuation of The purposes of the continuation of

educational services is to enable the educational services is to enable the child to continue to participate in the child to continue to participate in the general education curriculum, although general education curriculum, although in another setting, and to progress in another setting, and to progress towards meeting his or her IEP goals.towards meeting his or her IEP goals.

In addition, the child must receive, as In addition, the child must receive, as appropriate, a functional behavior appropriate, a functional behavior assessment, and behavior intervention assessment, and behavior intervention services and modifications designed to services and modifications designed to address the behavior so that it does address the behavior so that it does not recur.not recur.

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Continuation of Continuation of ServicesServices

The children with disabilities to whom the The children with disabilities to whom the continuation of services requirements apply are continuation of services requirements apply are children with disabilities who have been removed:children with disabilities who have been removed:– from their current placement for more than 10 from their current placement for more than 10

school days in the same school year for behavior school days in the same school year for behavior that has been determined through a manifestation that has been determined through a manifestation determination review to not be a manifestation of determination review to not be a manifestation of the child’s disability; andthe child’s disability; and

– to an interim alternative educational setting for to an interim alternative educational setting for not more than 45 school days for offenses that not more than 45 school days for offenses that constitute special circumstances (weapons constitute special circumstances (weapons offenses, drug or controlled substances offenses, offenses, drug or controlled substances offenses, or offenses involving serious bodily injury) without or offenses involving serious bodily injury) without regard to whether the behavior is determined to be regard to whether the behavior is determined to be a manifestation of the child’s disabilitya manifestation of the child’s disability

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Authority of Hearing OfficersAuthority of Hearing Officers

Changes to Interim Changes to Interim Alternative Educational Alternative Educational

SettingsSettings

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AppealsAppeals

The 2004 IDEA amendments The 2004 IDEA amendments provide for appeals by both the provide for appeals by both the parent and the local education parent and the local education agency under the provisions of 20 agency under the provisions of 20 U.S.C. §1415(k).U.S.C. §1415(k).

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AppealsAppeals

In appeals under the provisions of In appeals under the provisions of 20 U.S.C. §1415(k), the State or 20 U.S.C. §1415(k), the State or local educational agency must local educational agency must arrange for an expedited hearing.arrange for an expedited hearing.

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Appeals Appeals

An expedited hearing must occur within 20 An expedited hearing must occur within 20 school days of the date that the hearing is school days of the date that the hearing is requested.requested.

A determination by the hearing officer must A determination by the hearing officer must occur within 10 school days after the hearing.occur within 10 school days after the hearing.

Unless the parents and the State or local Unless the parents and the State or local educational agency agree otherwise, during educational agency agree otherwise, during an appeal pursuant to 20 U.S.C. §1415(k)(3) an appeal pursuant to 20 U.S.C. §1415(k)(3) the child must remain in the interim the child must remain in the interim alternative educational setting until the alternative educational setting until the expiration of the change of placement to an expiration of the change of placement to an interim alternative educational setting, or the interim alternative educational setting, or the decision of the hearing officer, whichever decision of the hearing officer, whichever occurs first.occurs first.

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AppealsAppeals

the statute grants the parent of a child the statute grants the parent of a child with a disabilities with the right to appeal with a disabilities with the right to appeal to a hearing officer when the parent to a hearing officer when the parent disagrees with any decision regarding disagrees with any decision regarding placement under 20 U.S.C. §1415(k), or placement under 20 U.S.C. §1415(k), or with the manifestation determination.with the manifestation determination.

Alternatively, the statute grants the local Alternatively, the statute grants the local educational agency the right to request a educational agency the right to request a hearing when the agency believes that hearing when the agency believes that maintaining the child in the current maintaining the child in the current placement is substantially likely to result placement is substantially likely to result in injury to the child or to othersin injury to the child or to others. .

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AppealsAppeals

The hearing officer is authorized to hear and The hearing officer is authorized to hear and make a determination regarding such appeals.make a determination regarding such appeals.

In addition, the hearing officer is authorized to In addition, the hearing officer is authorized to order a change in placement of the child, which order a change in placement of the child, which may include returning the child to the may include returning the child to the placement from which he or she was removed, placement from which he or she was removed, or ordering a change of placement for not more or ordering a change of placement for not more than 45 school days if the hearing officer than 45 school days if the hearing officer determines that maintaining the child in his or determines that maintaining the child in his or her current placement is substantially likely to her current placement is substantially likely to result in injury to the child or others.result in injury to the child or others.

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Determination that Maintaining Determination that Maintaining the Child in the Current the Child in the Current Placement is DangerousPlacement is Dangerous

The 2004 IDEA amendments removed The 2004 IDEA amendments removed the previous requirements detailing the previous requirements detailing the determinations that the hearing the determinations that the hearing officer must make before concluding officer must make before concluding that maintaining the child in the that maintaining the child in the current placement was substantially current placement was substantially likely to result in injury to the child or likely to result in injury to the child or others. others.

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Reporting Crimes to Law Reporting Crimes to Law Enforcement and Judicial Enforcement and Judicial AuthoritiesAuthorities The statute’s provisions may not be construed to The statute’s provisions may not be construed to

prohibit an agency from reporting a crime prohibit an agency from reporting a crime committed by a child with a disability to committed by a child with a disability to appropriate authorities.appropriate authorities.

Nor does the statute prevent the application of Nor does the statute prevent the application of Federal and State law to crimes committed by a Federal and State law to crimes committed by a child with a disability by State law enforcement child with a disability by State law enforcement and judicial authorities in the exercise of their and judicial authorities in the exercise of their responsibilities.responsibilities.

When an agency reports a crime committed by a When an agency reports a crime committed by a child with a disability, the agency must ensure that child with a disability, the agency must ensure that copies of the child’s special education and copies of the child’s special education and disciplinary records are transmitted for disciplinary records are transmitted for consideration by the appropriate authorities to consideration by the appropriate authorities to whom the crime was reported. whom the crime was reported.

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Application of Discipline Provisions to Application of Discipline Provisions to Children Children Not Yet Eligible for Special Education & Not Yet Eligible for Special Education & Related ServicesRelated Services

If a local education agency had If a local education agency had knowledge that a child who has not knowledge that a child who has not been determined to be eligible for been determined to be eligible for special education and related services special education and related services was a child with a disability before the was a child with a disability before the behavior occurred that violated a code behavior occurred that violated a code of student conduct which precipitated of student conduct which precipitated disciplinary action, the child can disciplinary action, the child can usually assert the IDEA protections.usually assert the IDEA protections.

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Basis of KnowledgeBasis of Knowledge The factors used to determine if a LEA had knowledge The factors used to determine if a LEA had knowledge

that the child was a child with a disability:that the child was a child with a disability:– the child’s parent expressed concern that the child the child’s parent expressed concern that the child

is in need of special education and related services; is in need of special education and related services; the parent’s concerns must be expressed in writing the parent’s concerns must be expressed in writing to the child’s teacher, or to supervisory or to the child’s teacher, or to supervisory or administrative personnel of the appropriate administrative personnel of the appropriate educational agency; oreducational agency; or

– the child’s parent has requested that the child be the child’s parent has requested that the child be evaluated to determine if the child is a child with a evaluated to determine if the child is a child with a disability; ordisability; or

– the child’s teacher or other local educational the child’s teacher or other local educational agency personnel has expressed specific concerns agency personnel has expressed specific concerns about a pattern of behavior the child has about a pattern of behavior the child has demonstrated; those concerns must have been demonstrated; those concerns must have been directly expressed to the educational agency’s directly expressed to the educational agency’s director of special education or other supervisory director of special education or other supervisory personnel.personnel.

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When Basis of When Basis of Knowledge Does Not Knowledge Does Not

ApplyApply A LEA will not be deemed to have a A LEA will not be deemed to have a

basis of knowledge that the child was basis of knowledge that the child was a child with a disability when any of a child with a disability when any of the following circumstances exist:the following circumstances exist:– the child’s parent has not allowed the child the child’s parent has not allowed the child

to be evaluated; orto be evaluated; or– the child’s parent has refused services; orthe child’s parent has refused services; or– the child has been evaluated and was the child has been evaluated and was

determined to not be a child with a determined to not be a child with a disabilitydisability

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Where There is No Where There is No Basis of KnowledgeBasis of Knowledge If, before taking disciplinary measures If, before taking disciplinary measures

against the child, the LEA does not against the child, the LEA does not have knowledge that the child is a have knowledge that the child is a child with a disability, the child may be child with a disability, the child may be subjected to the disciplinary measures subjected to the disciplinary measures applied to non-disabled children who applied to non-disabled children who engaged in comparable behaviors.engaged in comparable behaviors.

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Where There is No Basis Where There is No Basis of Knowledgeof Knowledge

However, during the time that the child is subjected However, during the time that the child is subjected to such disciplinary measures, if a request is made to such disciplinary measures, if a request is made to evaluate the child, the evaluation must be to evaluate the child, the evaluation must be conducted in an expedited manner.conducted in an expedited manner.

Pending the results of such an expedited Pending the results of such an expedited evaluation, the child must remain in the educational evaluation, the child must remain in the educational placement determined by school authorities.placement determined by school authorities.

If as a result of the evaluation, the child is If as a result of the evaluation, the child is determined to be a child with a disability, taking the determined to be a child with a disability, taking the information from the evaluation conducted by the information from the evaluation conducted by the LEA and information provided by the child’s parents LEA and information provided by the child’s parents into consideration, the LEA must provide special into consideration, the LEA must provide special education and related services to the child.education and related services to the child.

REVOCATION OF REVOCATION OF CONSENTCONSENT

IDEA regulations effective IDEA regulations effective December 31, 2008 allow December 31, 2008 allow revocation of consent by parents revocation of consent by parents for the child to be in special for the child to be in special education. The parent must make education. The parent must make the request in writing and the the request in writing and the school system must inform the school system must inform the parents of the implications of their parents of the implications of their decision.decision.

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When the parent removes a child When the parent removes a child from IDEA coverage, the child goes from IDEA coverage, the child goes into regular classes and is not into regular classes and is not entitled to any of the rights that entitled to any of the rights that were available.were available.

For disciplinary purposes, the For disciplinary purposes, the student is treated as a regular student is treated as a regular education student and cannot claim education student and cannot claim special privileges.special privileges.

An initial evaluation is required if An initial evaluation is required if the parent changes his/her mind the parent changes his/her mind regarding placement. regarding placement.

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FOREST GROVE SCHOOL DISTRICT, FOREST GROVE SCHOOL DISTRICT, Petitioner v. T. A. 557 U.S. 230 Petitioner v. T. A. 557 U.S. 230

(2009)(2009)

The Supreme Court held that IDEA The Supreme Court held that IDEA authorizes reimbursement for private authorizes reimbursement for private special-education services when a special-education services when a public school fails to provide free public school fails to provide free appropriate public education (FAPE) and appropriate public education (FAPE) and the private school placement is the private school placement is appropriate, regardless of whether the appropriate, regardless of whether the child previously received special child previously received special education services through the public education services through the public school. school. 

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ARLINGTON CENTRAL SCHOOL ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION v. DISTRICT BOARD OF EDUCATION v.

PEARL MURPHY 548 U.S. 291 PEARL MURPHY 548 U.S. 291 (2006)(2006)

IDEA allows for school systems to IDEA allows for school systems to reimburse parents for legal cost, but reimburse parents for legal cost, but not for outside experts.not for outside experts.

  

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FLORENCE COUNTY SCHOOL FLORENCE COUNTY SCHOOL DISTRICT FOUR v. SHANNON DISTRICT FOUR v. SHANNON CARTER 510 U.S. 7 (1993) CARTER 510 U.S. 7 (1993)

The court affirmed a judgment The court affirmed a judgment ordering reimbursement to petitioner ordering reimbursement to petitioner parents because respondent school parents because respondent school district breached its duty to provide a district breached its duty to provide a student with the free appropriate student with the free appropriate public education.public education.

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COPYRIGHT © 2005 Andree Hunter Greenleaf, COPYRIGHT © 2005 Andree Hunter Greenleaf,

Attorney at LawAttorney at Law

ALL RIGHTS RESERVED. No part of this work covered ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced or used by the copyright herein may be reproduced or used in any form or by any means – graphic, electronic, or in any form or by any means – graphic, electronic, or mechanical, including photocopying, recording, mechanical, including photocopying, recording, taping, Web distribution, or information retrieval taping, Web distribution, or information retrieval systems – without the written permission of the systems – without the written permission of the author. author.

The information in these materials is educational and The information in these materials is educational and not intended to be legal advice. not intended to be legal advice.