The Everyday Guide to Special Education Law: A Handbook for Parents, Teachers and Other Professionals, Third Edition

Table of Contents

Cover

Title Page

Copyright

Preface

Acknowledgments

Introduction

Dedications

I. The Individuals with Disabilities Education Act

What Is a Free Appropriate Public Education?

Who Are Children with Disabilities?

What Is Special Education?

What Are Related Services?

Medical Services versus Related Services

What Are Supplementary Aids and Services?

What Are Assistive Technology Devices and Services?

Extended School Year

School Records and Confidentiality

I. Supplemental Information

The IDEA and Charter Schools

What Are Charter Schools?

What about the IDEA, Section 504, and the ADA?

Federal Civil Rights Laws Apply to Charter Schools

School Districts and Public Benefits

II. Least Restrictive Environment

The Courts and LRE

Supplementary Aids and Services

LRE and the IEP

II. Supplemental Information

Change in Location Can Be a Change in Placement

Preschool Children with Disabilities and Least Restrictive Environment

The U.S. Department of Education’s Fifteen Principles Regarding the Use of Restraint and Seclusion

Placing Student on Homebound for His Senior Year Violated 504

III. Evaluating the Needs of Students with Disabilities

Initial Evaluation

Referral for Initial Evaluation

Consent

Screening

Evaluation Process

Specific Learning Disabilities

Severe Discrepancy Standard

Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder

Reevaluation

Summary of Performance

Independent Educational Evaluations

III. Supplemental Information

Procedural Safeguards Apply to Functional Behavior Assessment

Colorado District’s Failure to Evaluate Student While Implementing RTI Violated 504

OSEP Guidance on RTI

Paying for Independent Educational Evaluations

Parents Have a Right to Revoke Consent to Services

IV. The Individualized Educational Program

Who Are the Members of the IEP Team?

Team Absences

What Are the Components of the IEP?

Developing the IEP and Special Factors

Transfer Students

Transfer Within the Same State

Transfer from Outside the State

Transition Services

Specific Services

Reviewing, Revising, and Amending the IEP

Amending the IEP

Using the IEP Process

Hints for Parents

Hints for Educators and Other Members of the IEP Team

Conclusion

IV. Supplemental Information

Parents’ Right to Participate in an IEP Meeting Trumps the Annual Review Date

V. Resolving Disputes under the IDEA

The IEP Process

Informal Dispute Resolution Procedures

Procedural Safeguards

Prior Written Notice

Procedural Safeguards Notice

Surrogate Parents

Impartial Due Process Hearings

Due Process Complaint Notice

Response to the Due Process Complaint Notice

Response to the Specific Issues Raised in the Due Process Complaint Notice

Sufficiency of the Due Process Complaint Notice

Amending the Due Process Complaint Notice

Mediation

Resolution through Mediation Is Legally Binding

Mediation Means Finding a Middle Course

Resolution Session

Resolution Session Settlement Agreement

Impartial Due Process Hearing

Hearing Issues

Timeline for Requesting a Hearing

Rights in the Hearing Process

Burden of Proof

Qualifications of the Hearing Officer

Timeline for Hearing Officer’s Decision

Appeal Process

Administrative Appeal

Civil Action

Attorney’s Fees

The Stay-put Rule

State Education Agency Complaint Process

Filing a Complaint with the State Education Agency

Thoughts and Hints about Dispute Resolution

Dispute Resolution Timeline

V. Supplemental Information

Charter School Violated IDEA by Dis-Enrolling a Student During Pendency of a Hearing

VI. Discipline and Disability

Discipline Overview

Manifestation Determination

Provision of Educational Services

Functional Behavioral Assessment

Authority of School Personnel

Special Circumstances

Manifestation Determination

The Manifestation Determination Process

If the Behavior Is a Manifestation of the Student’s Disability

If the Behavior Is Determined NOT to Be a Manifestation of the Student’s Disability

Interim Alternative Educational Setting

Appeals and Procedural Safeguards

Notice

Disciplinary Appeal Process

Expedited Hearings and the Authority of the Hearing Officer

Expedited Hearing Timeline

Authority of the Hearing Officer

Placement during Disciplinary Appeals

What About Children Who Haven’t Been Determined Eligible for Special Education?

What Happens If the School District Does NOT Know the Student Has a Disability?

What If the Parent Requests that the Student Be Evaluated after the Student Is in the Disciplinary Process?

What To Do If Your Child Is Suspended

VI. Supplemental Information

Manifestation Determination Review Is Not a Hearing!

504 Requires Manifestation Determination Reviews Even for Students Ineligible under the IDEA

Manifestation Determination Review Teams Must Look Beyond the Special Education Eligibility Label

VII. Children in Private Schools

Private School Placements by the Public Schools

Private School Placements by Parents Because the Public School Program Is Inappropriate

Students Whose Parents Choose Private School Placement

Child Find

Service Coordination and Planning

Services Plans for Parentally-Placed Private School Children with Disabilities

Appeal Process for Parentally-Placed Private School Children

VII. Supplemental Information

Reimbursement of Private School Tuition

Fronting Private School Tuition

Private School Voucher Programs Must Comply with the ADA

Justice Department Sues Private School Chain for Discriminating against Children with Disabilities

The IDEA and Home Schooling

VIII. Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act

What Is a Free Appropriate Public Education under Section 504?

Who Is a Person with a Disability under 504?

Examples of 504 Accommodations

Evaluation under Section 504

Standardized Assessments

Assistive Technology and Section 504

Discipline and 504

Procedural Safeguards under Section 504

The Americans with Disabilities Act

Title III and Private Schools

Disability Harassment

Retaliation

Community Access

Filing Complaints with the Office for Civil Rights

VIII. Supplemental Information

Disability Harassment

Schools Must Take Action to Prevent Bullying

School Should Have Been Proactive to Protect Student with Cognitive Disabilities from Name-Calling

Department of Education Issues Guidance Targeting Harassment and Bullying

Teachers May Sue to Protect Their Students

Extracurricular Athletics for Students with Disabilities

Excluding Children with Diabetes

Formal Guidance from the Office for Civil Rights

Schools Cannot Rely Solely on Grades when Determining 504 Eligibility

Service Animals at School

Decisions on Service Animals Must Be Made by a Group

Virtual Public Charter School Required to Comply with Section 504

IX. Back to the Beginning: Part C Early Intervention Services

Infants and Toddlers

Infant or Toddler with a Disability

Early Intervention Services

Part C Service Providers

Natural Environments

Individualized Family Service Plan

Content of the Individualized Family Service Plan

Parent Consent

Service Coordinator

Transition from Part C Early Intervention Services

Procedural Safeguards

Stay-put

Conclusion

X. Facing Forward Looking Back

Appendix A

Sample Letter

Appendix B

Sample Letter (Due Process Complaint Notice)

Appendix C

Letters: Charter Schools & Preschool LRE

Letter: Disability Harassment

Letters: Harassment and Bullying & Extracurricular Activity

Appendix D. Glossary and Acronyms

Appendix E. Circuit Courts

Index

About Mighty Rights Press

About the Author

Endnotes

Mighty Rights Press

The Everyday Guide to Special Education Law

A Handbook for Parents, Teachers, and Other Professionals

By Randy Chapman, Esq.

Copyright © 2015 Mighty Rights Press (print edition)

Copyright © 2016 Mighty Rights Press (e-book edition)

455 Sherman Street, Suite 130

Denver, Colorado 80203

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from Mighty Rights Press except for the inclusion of brief quotations in a review.

This publication is designed to provide accurate and general information in regard to the subject matter covered. It is sold with the understanding that the author and the publisher are not engaged in rendering legal or other professional services. If specific legal advice is required, please consult an attorney.

Third Edition

Publisher’s Cataloging-In-Publication Data

(Prepared by The Donohue Group, Inc.)

Chapman, Randy.

The everyday guide to special education law : a handbook for parents, teachers and other professionals / by Randy Chapman, Esq. — Third edition.

At head of title: IDEA.

Includes most recent changes to federal law and regulations, plus supplemental information on administrative and case law. Includes index.

ISBN: 978-0-9770179-7-3 (paperback)

ISBN: 978-0-9974426-0-1 (e-book)

1. United States. Individuals with Disabilities Education Improvement Act of 2004 — Handbooks, manuals, etc. 2. United States. Individuals with Disabilities Education Act — Handbooks, manuals, etc. 3. United States. Americans with Disabilities Act of 1990 — Handbooks, manuals, etc. 4. United States. Rehabilitation Act of 1973 — Handbooks, manuals, etc. 5. Special education — Law and legislation — United States — Handbooks, manuals, etc. 6. Children with disabilities — Education — Law and legislation — United States — Handbooks, manuals, etc. I. Title. II. Title: IDEA

KF4209.3 .C453 2015

344.0791

Book and Cover Design by Karen Saunders & Associates

Front Cover Concept by John O. Kjos and Randy Chapman

Edited by Mandy M. Rigg

Production coordinated by Reina Knapp, Randy Chapman, Mary Anne Harvey, and Julie Z. Busby

Indexing by Katie Banks, Eagle-Eye Indexing

E-book created by Mariposa Book Transformation Services

Preface

I wrote this book primarily to help students, parents, advocates, and other professionals better understand the Individuals with Disabilities Education Act (IDEA). Congress most recently amended the IDEA in 2004. Subsequently, the Department of Education adopted regulations implementing the IDEA 2004 that were effective July 5, 2006. This edition of The Everyday Guide to Special Education Law addresses the major changes in the IDEA 2004 including references to the Department of Education regulations. The IDEA statute is very detailed and, for the most part, the regulations follow the statute without adding much clarification. So, I have only referred to the regulations where I thought they provided additional information or clarified the statute. I have also tried to make the law a little less confusing.

By saying I wrote this book primarily for students, parents, and advocates, I don’t mean that it isn’t also intended for teachers and other educators. Most teachers and educators advocate for children with disabilities, in general, and their own students, in particular. They just advocate from within the educational system. So, while the book is written from a parent’s perspective, the information is also intended to help those who have answered the call to become members of that most honorable of professions, teaching.

This book is not intended to be a legal treatise on special education case law. The book is meant to be an everyday guide to special education law to help parents, advocates, students with disabilities, and educators to understand the basic requirements of the IDEA, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act.

School services for children with disabilities are developed through an individualized planning process. The planning process involves parents, educators, and other professionals. For infants and toddlers that process results in an Individualized Family Service Plan (IFSP) and for children aged three to twenty-one that process results in an Individualized Educational Program (IEP). The IFSP and IEP meetings should involve a collaborative process.

Generally, I do not believe the IEP, IFSP, and other education meetings are the appropriate settings for lawyers and others to debate legal standards and court rulings. Those debates are more appropriate for due process hearings and court cases. Educational planning meetings should focus on the student’s needs and meeting those needs. Parents, teachers, and other professionals know about the individual students and how to teach students with disabilities. Early intervention service providers and families have expertise on providing early intervention services to infants and toddlers. While parents and teachers should understand the legal requirements in the special education process, they are not in the planning meeting to be lawyers. They are in the meeting to be parents and teachers. I believe parents and educators — not attorneys — should design educational programs.

Having said that parents and educators — not attorneys — should design programs, I would also like to point out that there is certainly a role for attorneys to play in ensuring that students receive a free appropriate public education under the IDEA. Disputes often arise over the delivery of special education services. While most disputes can be resolved informally without involving lawyers, some require more formal dispute resolution procedures, like due process hearings. While parents are not required to use attorneys in due process proceedings, due process hearings are formal legal proceedings and school districts are most likely represented by attorneys.

Consequently, parents will likely need representation by an attorney. Moreover, parents may need to seek advice from an attorney to make decisions regarding dispute resolution. Although this book contains information about the legal rights of students with disabilities, it is not a substitute for legal advice or legal representation when either is needed. The book is best used as a guide to the law and the rights of students with disabilities to get a free appropriate public education. If legal advice is needed, it should be sought from an attorney competent in this area of the law.

Additionally, please note that in some places I have directly quoted the law. But in many places, I have modified and paraphrased the legal language to make it more understandable. Footnotes are provided so you can find the actual statute or regulation being discussed. The IDEA statute is cited as 20 U.S.C. 1400 to 1487. The IDEA regulations are 34 C.F.R. Part 300. You can find the IDEA statute and regulations at the United States Department of Education website IDEA.ED.gov. The Section 504 regulations are cited as 34 C.F.R. Part 104. The letters U.S.C. stand for United States Code and C.F.R. stands for Code of Federal Regulations. If you are seeking to quote the law exactly, you should use these footnotes to find your exact quote, rather than quoting this book.

This third edition of The Everyday Guide supplements the previous edition by providing information about judicial and administrative decisions that occurred after the second edition was published. There is also information about specific topics such as charter schools, home schooling, the use of restraint in schools, private school voucher programs, and service animals that were not covered in the previous edition. The majority of this information has been adapted from Randy Chapman’s Ability Law Blog, which can be found at RandyChapman.WordPress.com. The supplemental information follows the chapters that most closely relate to that information.

Additionally, a glossary is provided as Appendix D. Terms that are defined in the glossary are in italics the first time they appear in the main text of this book.

Finally, I greatly enjoyed writing this book and hope it’s helpful.

Randy Chapman

Acknowledgments

Thanks to Mary Anne Harvey, our Executive Director, for her support, suggestions, and as always, excellent editing skills. I would like to thank Bill Higgins, former Managing Attorney in our Grand Junction office; Angie Garberding, Rights Advocate; Julie Busby, Development Director; Reina Knapp, Office Manager; Chaz Gilmore, Administrative Assistant; and Kyliegh Vestal, Intern. Thanks also to staff who are no longer at Disability Law Colorado, but who played a critical role in this publication: Thom Miller and Heidi Van Huysen, who left to pursue other legal work; and Diane Carabello, who passed away in 2009.

Thanks also to Chug Roberts of TheCapitol.Net in Alexandria, Virginia, for his consultation and encouragement, and to Mandy M. Rigg for her enthusiastic support and advice.

Additionally, I want to thank the following people who also reviewed drafts of this book and provided invaluable insight and suggestions: Allison Seyler and Shirley Swope with the PEAK Parent Training Center in Colorado Springs; Romie Tobin, who as a parent advocated for her son and now helps other parents; Dr. Fred Smokoski, who is a former Director of Special Education in Colorado and helped bring students from the Wheat Ridge State Home and Training School into the public schools; Susan Smith with Colorado Department of Education; Julie Haynes with the Colorado Foundation for Families and Children; Patricia S. Tomlan, PhD, with PST Educational Consultants; and Carol Meredith, Cg LaScala and Paula A. House with the Arc/Arapahoe & Douglas.

We are grateful to the Colorado Developmental Disabilities Council for funding this project. In addition, we extend our gratitude to the Daniels Fund for a challenge grant to encourage charitable support to broadly distribute this book to families who need it and make it available in Spanish.

Last but not least, I want to acknowledge Carol, Connor, and Sean Chapman who patiently tolerated my hogging the computer room while writing this book.

Mary Anne Harvey and I

would especially like to acknowledge

John Matousek of our Board of Directors

for nurturing the entrepreneurial spirit

that will sustain our future.

Introduction

In 1980 The Legal Center for Handicapped Citizens and the Association for Retarded Citizens in Colorado sued the Colorado Department of Education because children at the Wheat Ridge State Home and Training School were not attending school. The Wheat Ridge State Home and Training School (Ridge) was an institution for persons with developmental disabilities located in the Jefferson County School District. Most of the children living in the institution originally came from a variety of communities and school districts, other than the Jefferson County School District. Abandoned today, the wards at Ridge are empty. But in 1980, children filled wards labeled Moonbeam, Aspen, and Starlight. Filled wards, empty days.

Ridge students had the right to an education under the Education for All Handicapped Children Act of 1975.¹ The Legal Center had first discovered in 1979 that children living at Ridge were not going to school. Consequently, on behalf of the parents of several of the children living at Ridge, The Legal Center requested school services from the children’s home school districts, specifically the Denver, Boulder, and Weld County districts. These home school districts, however, refused to provide school services because the children lived in Jefferson County. The Legal Center then turned to the Jefferson County School District for services, but services were refused because the children’s parents resided outside of Jefferson County.

Since the Education for All Handicapped Children Act required that the State Education Agency (the Colorado Department of Education) assure that all children with disabilities in Colorado receive a free appropriate public education, The Legal Center implored Colorado’s Commissioner of Education to resolve which school districts were responsible for teaching these children. Eventually, the Commissioner of Education determined that the school districts where the children’s parents resided were responsible for educating children living at Ridge. Unfortunately, that decision was not enforced; the children stayed out of school.

Consequently, the class action lawsuit was filed in 1980 in federal district court in Denver. In May 1981 Judge John Kane ruled that, in fact, the Commissioner of Education and the Colorado Department of Education were responsible under the Education for All Handicapped Children Act of 1975 for assuring that all children with disabilities in Colorado, including the children at Ridge, receive a free appropriate public education.² The lawsuit was later settled, and in the fall of 1981 children at the Ridge State Home and Training School attended school for the first time. At the same time, school services were also provided to children living at Colorado’s other State Home and Training Schools in Pueblo and Grand Junction. For a while, some children received school services at the State Home and Training School, but nearly one half of the children left the institution and attended schools in their home district.

Many of these children had very severe disabilities. Some were unable to speak or walk. For the first time children with very severe disabilities received services in Colorado’s public schools. Over time, this lawsuit directly resulted in improving the ability of Colorado’s public schools to serve children with severe disabilities. This improvement, in turn, led to closing almost all of the segregated schools in Colorado, children leaving the institutions, and children with severe disabilities being more fully included in the public school system. All of these changes came about because of the Education for All Handicapped Children Act!

The Education for All Handicapped Children Act was adopted by Congress in 1975. Congress passed the law because nationwide children with disabilities were either excluded from the public schools (like the children at Ridge), or provided minimal educational services. Initially, the courts confronted the exclusion of children from the public schools through the civil rights movement. In 1954, the Supreme Court ruled in Brown v. Board of Education that segregating children in the public schools based on their race violated the 14th Amendment of the Constitution. Racial segregation in the public schools denied children an equal access to a public education.³ Later, other parents pressed for equal access to the public schools for their children with disabilities.

Armed with the Brown decision, parent advocacy groups also chose the courts as a battleground to get school services for their children with disabilities. In 1972 two landmark decisions, Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania⁴ and Mills v. D.C. Board of Education,⁵ determined that children with disabilities must have equal access to public education, and parents must have a meaningful opportunity to challenge decisions excluding their children from school. Although these two decisions led the charge, there were court cases in other states seeking school services for children with disabilities.

In 1975 Congress passed Public Law 94-142, the Education for All Handicapped Children Act, which is now called the Individuals with Disabilities Education Act or the IDEA.⁶ In passing the law, Congress found that there were more than eight million handicapped children in the United States.⁷

Sadly, Congress further found that more than half of the handicapped children in the United States do not receive appropriate educational services which would enable them to have full educational opportunity, and one million of the handicapped children in the United States are excluded entirely from the public school system and will not go through the educational process with their peers.

Sadly, Congress further found that more than half of the handicapped children in the United States do not receive appropriate educational services which would enable them to have full educational opportunity,⁸ and "one million of the handicapped children in the United States are excluded entirely from the public school system and will not go through the educational process with their peers."⁹ Note that these Congressional findings documenting the exclusion of children with disabilities from our nation’s schools are as recent as 1975. To remedy this national shame, the new law required that children with disabilities receive a free appropriate public education and that special education and related services be provided to children according to an Individualized Educational Program (IEP). Congress had set out to right this great wrong.

In 1990 Congress amended some of the language in the Education for All Handicapped Children Act and changed its name to the Individuals with Disabilities Education Act or IDEA. Fittingly, throughout the law the term handicapped children was replaced with the term children with disabilities. In 1997 Congress reauthorized and amended the IDEA, and then in March 1999, the U.S. Department of Education issued new regulations interpreting the amended IDEA.¹⁰ The IDEA 97 was the first major revision of the law since its original passage as the Education for All Handicapped Children Act in 1975. The law was again amended in 2004.

Without question, this federal legislation improved the lives of millions of children with disabilities throughout the country. Many of the children, initially served by the law in the