Special Education Law

Special Ed Acronyms

IEPFAPELREMDT504DDLD

IEEOSEPOCRFBASLPCOTACIC

14th Amendment

“… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Vocational Rehabilitation Act 1973

“No otherwise qualified individual with disabilities in the United States…shall solely by reason of his/her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance…” 29 USC 794

Case Study

You are the principal of Hokie High School. Your science department chair told you about a conversation that occurred this morning between her and one of her colleagues, Tom. When notified that Tom was expected to attend an IEP meeting as a representative of the regular ed staff. He said he doesn’t believe in “accommodations” and thinks the child in question is “just lazy” and is “working the system.”

Education for All Handicapped Children’s Act 1975

It is the duty of all schools to provide a free and appropriate public education in the least restrictive environment for every child between the ages of 3 & 21 who has identifiable disabilities

Education for All Handicapped Children’s Act - Provisions

Free Appropriate Public EducationIndividual Education PlanSpecial Ed ServicesRelated ServicesDue ProcessLeast Restrictive Environment

Amendments

1986 1990

Attorney fees 0-3 program, optional3-6 program essentialServices for deaf-

blind/ multi-handicapped

TBI, AutismTransition servicesPrevent schools from

using the 11th amendment

ESY

1997 IDEA

Extensive parent rightsDisciplineAccess to regular curriculum/assessmentAccess to regular programNon-categorical eligibilityLimits services to private school students

IDEA 2004

NCLB coordinationSpecial Ed services for children in private

schoolsChanges eligibility definitions for LDFlexibility for intervention prior to

eligibility determination (15%)Modified dispute resolutionMore refined disciplinary rules for students

with disabilities

Discipline Changes

Removal for 45 alternative placement for causing serious bodily injury at school

Manifestation team, must include parents, district, and relevant members of IEP team

Child can be in alternative placement until decision is made in hearing, or period of discipline ends

Court Cases

FAPEESYRegression-RecoupProcedural

safeguardsIEPsADHDLREPrivate School

Placement

Related servicesDiscipline Stay-put provisionCompensatory

educationAttorney’s and Expert

feesLiability for

reimbursement of parents

Cases

EACHA 1975ACCESSRowley 1982 SC FAPETatro1984 SC Related ServicesBurlington 1985 SC ReimbursementRobinson 1986 Attorney fees

Honig 1988 SC DisciplineTimothy W 1989 1st C Ability to benefitZobrest 1993 SC Parochial school

Cases (continued)

Florence 1993 SC ReimbursementOberti 1993 3rd CircuitLREHolland 1994 9th CircuitLREGarrett 1999 SC Related ServicesVan Clay 2002 7ircuit LREShaeffer 2005 SC Burden of ProofArlington 2006 SC Non-Attorney feesAlvin 2007 SCADHD

FAPE

Henry Hudson v Rowley 1982 SC

Defined FAPEEAHCA does not require maximum ed

services, but a floor of opportunityQuestions of methodology for provision of

services are to be determined by state and local ed systems

Related Services

Irving v Tatro 1984 SC◦CIC is a related service

Cedar Rapids v Garrett 1999 SC◦Continuous nursing service is a related service

How would you handle this?

Parents of a medically fragile child are insistent that their child be totally integrated into the school mainstream. Due to a cardiac condition, it is possible that the child will have to be resuscitated at some point during the school day. Additionally, trach suctioning and naso-gastric tube feeding are required. The parents demand that a full time nurse be provided to ensure that their child receives the necessary medical attention.

Discipline

Honig v Doe 1988 SCDiscipline rightsMay suspend a child for up to 10 days

with out violating the stay-put provision

Why are suspension and expulsion procedures for students with disabilities different from those for non-disabled?

What should the school do?

During most of his years in the Shrenk School District, Tommy demonstrated no need for special education services. He had average grades and progressed from grade to grade. Although diagnosed ADHD, he was not on any medication. In high school he left school one day with friends, all of whom admitted to smoking marijuana at his home. Later the group returned to school, where Tommy used a pellet gun to shoot at another student on the school track. The student was not seriously injured. When Tommy was expelled his parents filed a due process complaint saying he should have been served as a special education student.

LRE

Timothy W v Rochester 1989 1st Circuit Oberti v Bd of Ed 19933rd CircuitSacramento v Holland 1994 9th CircuitBeth v VanClay20027th Circuit

What are the factors in the 4 part Holland test?

http://www.kidstogether.org/right-ed_files/rachel.htm

Special Ed and Private Placements

Florence v Carter 1993 SC ◦Parent entitled to reimbursement for private

placement (not parochial)Zobrest v Catalina 1993 SC

◦Provision of services at parochial schoolsFoley v Special School District 1998 8th

Circuit◦Voluntary parochial placement, no entitlement

KDM v Reedsport 1999 9th Circuit◦Not entitled to services in parochial school

Additional Cases

Martinez v School Bd 1988 11th Circuit◦Aids, risk v accommodation

Timothy v Cedar Rapids 1999 8th Circuit◦504 and transportation for choice

Schaeffer v Weast 2005 SC◦Burden of proof is on the party seeking relief

Arlington v Murphy 2006 SC◦Non-attorney fees are not reimbursable costs

If 504 and Special Education serve students with disabilities – what are the differences?

Issues Special Education Section 504Identification

Evaluation

Due Process

Discipline

Enforcement

504 vs Special Ed

IDEIA Section 504

Identification/eligibility

Specific categories; adversely affect ed performance

Must affect major life activity; no need for sped

Evaluation Comprehensive eval by MDT; Independent eval; re-eval every 3 years; no significant re-eval for placement change

Evaluation from variety of sources documented; periodic eval; decisions do not require consent;

Responsibility for FAPE

IEP; educational benefit to student; placement in spec ed/gen ed; related services

Plan; comparable ed; placement in gen ed; related services

Due Process Impartial hearing and appointee for hearing; specific procedures; stay-put; 10 day notice for change; requires parent consent

Impartial hearing; hearing officer can be school staff; no stay-put: no prior notice for change; requires parent participation

Enforcement OSEP OCR

Checklists

Be familiar with district policies and procedures regarding sped

Ensure proper placement of qualified transfer students

Make sure disciplinary actions conform with the law

Complete assessments within time limits

Resources

www.nichcy.org

www.angelfire.com

www.school.familyeducation.com

http://www.k12.wa.us/SpecialEd/programreview/TechnicalAssistance.aspx