Special Education Law

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Constitution

the constitutional provisions for spending money to protect the general welfare (which is the basis for Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act and fourteen amendment (due process and equal protection clauses)

IDEA

authorizes the expenditure of federal funds to subsidize special education provided by the individual states

Section 504

requires that programs receiving federal financial assistance not discriminate on the basis of disabilities

ADA

prohibits public and private schools from discriminating on the basis of disabilities

Case law

common law (developed by courts)

Dicta

broader pronouncements and they provide guidance to potential litigants about their chances of success should they decide to seek a remedy in the courts

stare decisis

courts are bound to render decisions consistent with previous decisions in the same jurisdiction and with decisions of higher courts over that jurisdiction

Judicial system

federal and state courts and various appellate levels
51 court systems
three-tiered
the names of these courts vary from state to state: superior court, court of appeals, and supreme court

federal courts

U.S. Supreme court
U.S. Court of Appeals
U.S. District court

State courts

State supreme court
State court of Appeals
State trial court

petition for certiorari

if the losing party submits a request to the Supreme court to consider the case. The request which the U.S. Supreme court can either accept or reject.

writ of certiorari

the justice will issue a request to send the case to the court

Education for All Handicapped Children Act

(1975)
Federal funds available to states that developed plans to ensure education for all children with DA who were of school age.
No cost
Restrictive appropriate setting
Provided under required procedural safeguards
Changed to the IDEA (1997 and 2004)

The Handicapped Children's Protection Act

(1986)
to allow for attorneys' fees in certain circumstances under the IDEA

Brown v. Board of Education

the philosophy of integration

interim funding bill (1974)

require states as a condition of receiving federal funds to adopt goals of providing full educational opportunities to all handicapped children

Education for All Handicapped Children Act of 1975

to subsidize state and local educational agencies (children with DA age 3 to 21)

1970 Education of the Handicapped Act

provided for grants to states to provide special education

IDEA (2004)

scientifically based early reading programs
positive behavioral interventions and supports
early intervention services to reduce the need to label children as disabled
response to intervention

Section 504 of the Rehabilitation Act (1973)

made it illegal for any program receiving federal funding to discriminate against an individual on the basis of DA
did not grant funds to the states

Americans with Disabilities

(1990)
prohibiting discriminating on the basis of DA
expand the protection found in the Rehabilitation Act to the private sector
apply to both public and private schools

IDEA (1997)

high expectations for students with disabilities along with access to the "general curriculum"
Schools to provide services that would allow students with DA "to progress" in the general curriculum

Individuals with Disabilities Education Improvement Act

to prepare students with DA for further education, employment, and independent living

No Child Left Behind

(2002)
the quality of services
students with DA taking statewide assessment tests
the qualifications for school personnel and others who provide services to students with DA

Who is protected under Section 504?

any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities

Section 504 programs

colleges
Many private schools receive federal financial assistance through school lunch programs and other subsides, and thus are frequently also subjected to the law

Remedies in 504

the termination of federal assistance
injunction
monetary relief
entitled to attorneys' fees

Defenses in a Section 504

defense of immunity- state-waived immunity
state agencies were immune from suits
it would be unduly burdensome to provide reasonable accommodation to allow participation to persons with DA in a program

Americans with Disabilities Act

it does not require entities to be recipients of federal finanicial assistance
Title II (applicable to public agencies, i.e. public schools)
Title III (applicable to private providers of programs of public accommodation, which include private schools)
Public and private schools are prohibited from discrimating on the basis of DA and are required to provide reasonable accommodations that do not cause an undue hardship
Individuals with contagious diseases are protected from discrimination so long as they do not directly threaten the health or safety of others.
protection to individuals who are associated with a DA

Federal appropriate public education

emphasizes special education, related services, further education, employment, and independent living (IDEA)

least restrictive environment

students with DA should be educated with students without DA to the maximum extent appropriate

IEP

team
meet the unique needs of that specific child based on evaluations and other information about the child's needs and abilities (IDEA)

Stages of the special ed. process

IDEA
identification
evaluation
IEP development
Placement decision-making
implementation

Due Process

the parties can resolve a dispute that arise during the special ed. process

No Child Left Behind

develop state education standards with high expectations for all students
statewide assessment testing
personnel requirements
the law divides students into various subgroups and requires students to meet the AYP
highly qualified teacher requirements

highly qualified teacher requirements

teach " core academic subjects"
BA
licensure
certification by the state in which they teach
demonstrate compentency in the subject matter in which they teach

paraprofessionals at Title I schools

HS diploma
Be supervised by a highly qualified teacher
The law places limitations on the duties and tasks that a paraprofessional can perform

State Education Statutes

states are not required to follow the IDEA requirements if they do not want the federal funds. If they want federal funds, they must follow them. States may include gifted children
disputes over which agencies are responsible

Family Educational Rights and Privacy Act

Buckley Amendment- access to and accuracy of students' records and permit parents and students over 18 years old to have access to their records

Health Insurance Portability and Accountability Act of 1996

privacy for medical records

Tort and Contract Law

defamation
libel
slander
invasion of privacy
negligence- a breach of contract issue

Not all students are covered by the IDEA

gifted and talented
chronically ill child
the ill children, who are absent a lot, may be a special rule to be covered by the IDEA
ADHD may be a question if it should be covered. It may be covered under the other health impaired category.
socially maladjusted
addicted to drugs or alcohol (drug and alcohol addiction is not considered as DA

"child with a DA" is covered

MR
HI
VI
Serious emotional disturbance
orthopedic impairment
autism
traumatic brain injury
other health impairment- asthma, ADD, ADHD, diabetes, epilesy, heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, tourette syndrome
specific learning disability
deaf-blindness
multiple DA
medically fragile child
speech language impairment
communication disorder

Developmental delays

three to nine
physical dev.
cognitive dev.
communication dev.
social or emotional dev.
adaptive dev.

related service providers

speech and language therapists, physical therapists, occupational therapists, school social workers, counselors, nurses, physicians, individuals (transportation services), paraprofessionals

Fourteenth Amendment

states may not deprive their citizens of "equal protection of the laws"

IDEA requirements for children

ages 3 to 21
suspended or expelled students
additional limitations on incarcerated individuals
private schools do not need to provide services

Zero reject

states are provide ed. to all children with DA and a few courts found that some children are uneducable

Parent Consent (IDEA)

clear notice for parents to read
in the parents' native language
the parent needs to sign the notice
If the parent disagres, the school may try to override the parent's refusal to consent by going thru the dispute resolution process

Response to Intervention

wait to fail model- the performance or achievement must be enough bad before the student is eligible to receive special ed. services (severe discrepancy model) Not a good idea
scientific, research-based intervention
students do not meet the state-approved grade-level standards
Data is based on the instruction in regular education settings (if students have not respond to instruction)

Individualized Education Program

a written statement that provides information about the child's unique needs and the special ed. and related services that the child will receive
If the parents cannot appear, other methods of participation can be used
regular ed. teachers must participate in the dev. of the IEP

potential maximization standard

the IDEA does not require it, some states have done so. The higher stand still does not require that the best possible ed. be provided. FAPE is something in between the best and the minimum and varies from student to student depending on the students' needs and abilities

regression and recoupment

look at the level of regression a student will incur without ESY services, and how difficult it will be for the student to recoup the info. after the break from school

related services

transportation, speech-language pathology, audiology services, interpreting, psychological services, physical and occupational therapy, recreation, social work services, school nurse services, counseling services, medical services

transportation (ADA)

requirements do not apply to public school transportation and have limited applicability to private schools
door to door transport
the school is required to reimburse parents for transportation costs necessitated by the school's failure to provide appropriate transportation or where the parents and school agree to parent-provided transportation in lieu of school-provided service

Aural method

those promoting teaching deaf children to speak and read lips

mainstreaming

placement into selected classes

inclusion

the presumption of placement in the regular classes

Full inclusion

all special education programming would take place in the regular classroom

Placements

regular classroom, hospital placemnt, regular classroom with special ed. consultant, regular classroom with itinerant teachers, regular classroom with use of resource room for part of the time, part-time special class, full-time special class, special day school, and residential school

Private Schools

public agency placement in private schools (if the public school is not able to implement the student's IEP
Is otherwise not an appropriate placement for students, the team may decide to place the student in a private school to receive special ed. and related services. The students are entitled to the full array of services and procedural protections under the IDEA

unilaateral placement

the parents place their child in the private school without the agreement or assistance of the local school district and then try to recover the costs for the placement from the public school when FAPE is at issue

IDEA for private schools

the federal grant statutes must not support the establishment of religion

ADA for private schools

mandates private school responsibility for reasonable modifications (such as barrier removal or assistance in providing asthma medication)
does not require private schools to develop IEP or to provide procedural safeguards

Residential placements

extremely expensive
individuals with a severe or profound DA who needs highly intensive programming
very restrictive
uneducable approach

Separate and balance approach

involves an attempt to separate a child's ed. needs from other needs including those commonly referred to as medical, custodial, social, emotional, and behavioral

interwined needs approach

to separate the needs but recognizes that in certain cases, such as children with multiple and severe DA, this will not be possible

variety of settings

traditional institution
group homes
foster care
the school is not required to pay for medical expenses involving in a residential placement
out of state or private facility

School through vouchers

private schools, the charter schools, and magnet programs may not provide access to ed. to students with DA or equivalent basis
They would violate Section 504 and the ADA if they discriminate against students with DA
the charter schools, which receive federal funding are not exempt from IDEA

Graduate requirements

minimum competency testing
No Child Left Behind requires students with DA are required to meet these kinds of state standards

Compensatory education

which require the school to provide services even after graduation with a regular diploma

school attendance requirements

students are not required to attend school beyond a certain age (14 to 16)
Once the student become 18, parents no longer have the legal power to force the student to attend anyway

vocational education

many students will not be qualified to attend institutions of higher ed.
Unprepared voc. ed.teachers for students with DA

Transition services

post-secondary ed, voc. ed., integrated employment (supported employment), continuing and adult ed.,adult services, independent living, community participation, and invite students to the IEP

FAPE

among other things, ed. "provided at public expense, under public supervision and direction, and without charge"
states provide services to students with DA are eligible to receive supportive funding from the federal government under a funding formula based on the number of students with DA

FAPE does not cover

the school district's charging incidental fees to students with DA
for example the cost of the field trip

Procedural Protections

a right to have a hearing when there is disagreement over a child's DA, placement, program, and so on
a right to be represented at the hearing
a right to appeal to the state administrative agency
a right to seek review in the court
they do not mean that these rights must be provided at no cost

Which public agency is responsible?

undecided
state ed. agency or local agency
state ed. agency has the responsibility for providing special ed. under the IDEA
the local agency have been given the primary respnsibility of providing direct services for most types of placemnt
the state pay for the residential programs and placements

residency issues

the parents have later moved
residential placement
foster home
guardian or someone other than the parents

statewide intragency coordinating council

parents, service providers, state legislators, individuals involving in personnel prep., representationfrom early intervention service agencies, preschool providers, state medicaid agencies, Head start, child care agencies, health insurance agencies, homeless children and youth coordinators, foster care representatives and mental health agencies,and other members

Rehabilitation Act and the Americans with Disabilities Act

the child would be entitled to reasonable accommodations or modifications for the DA under the section 504 or the ADA or both

Due Process procedures under the IDEA

parents the right to notice
the right to participate in team meetings held to make decisions about the child
the right to consent

notice

written notice when the public agency or school proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child
clear notes in the native language

participation

parents as full team members during the IEP and placement meetings
If parents cannot show up, the IDEA requires the school to make efforts to ensure parental participation at meetings
1. 10 days notice
2. Conference calls
3. Video conference
4. Visits to the parents' home or place of employment

Consent

consent for evaluation and reevaluation and related services
excusing team members from the IEP
When a school wants to access the parents' private insurance to hep cover the costs of services
States to require consent for other services and activities in the special ed. process
If the parent disagrees with IEP changes, they have a right to the due process and stay-put provisions have been interpreted to require the services under the last agreed-upon IEP to continue to be provided until the dispute over the changes in the new IEP is resolved

When are Due Process Procedures Triggered?

Change in placement
Disciplinary removals
Minor changes (moving the class to a different room or changing a feeding program for a child with a profound disability, or slightly increasing transportation time are not required notice)

Transfer of Rights

age of majority
One exception to the transfer of rights is when the student is deemed incompetent under state law

Stay-put

while administrative and judicial proceedings are pending, the child is to remain in the present ed. placement

When that placement is no longer available

stay-put placement closing
losing its certification
the student advancing to the next grade level during the pendency of the proceedings

IDEA about discipline

school cannot unilaterally change a special education student's educational placement by removing the student from school for behavior that is caused by the disability
Students must continue to receive a FAPE when:
a. removal from their educational placement
b. suspension
c. temporary removal is required for emergency reasons

How many days do the students can be suspended or sent to an interim alternative educational setting and there is no change in placement?

Ten days or less

Manifestation determination

the IEP team must consider all relevant info. in terms of the behavior subject to disciplinary action including the student's file, the child's IEP, teachers' observations, and any relevant info.
1. If the conduct in question was caused by or had a direct and substantial relationship to, the child's disability
2. If the conduct in question was the direct result of the school's failure to implement the IEP
If the team believes in the manifestation determination, they must conduct a functional behavioral assessment and develop behavioral intervention plan

What if the parents disagree with the manifestation determination, what can they do?

They can appeal

Stay-put

the law require the student to stay in his or her current placement until the issue is resolved

How many days can schools remove a student to an interim alternative educational setting?

not more than forty-five school days

What are the reasons for the student at the interim alternative educational setting?

carries or possesses weapons at school, on school premises
use illegal drugs or sells or solicits a controlled substance at school, on school premise or at a school function
inflicts serious bodily harm upon another person at school, on school premise, or at school function

Incarcerated Juveniles

a student that is from 18 to 21 who was not identified as a child with a DA prior to incarceration, and who did not have an IEP prior to incarceration is not entitled to FAPE if state law does not required it.
statewide assessments and transitions services do not apply to students

Due process procedures under the IDEA

administrative due process hearing
medication
filing a complaint with the state department of ed.

Impartial Due Process Hearing

disagreement about a proposed identification, evaluation, or placement or FAPE
two-year statute of limitations to file a request for due process
the request

the request for impartial due process hearing

the name and address of the student and the school the student is attending
description of the nature of the problem including facts relating to such problem
proposed resolution of the problem to the extent known and available
fifteen days to notify the hearing officer that the request is not sufficient after the request
The parties must conduct a "resolution meeting" within 15 days of the school receiving notice of the parents' request for due process.
If the parties do reach an agreement, a written settlement agreement explaining the agreement is drafted and signed by the parties
three days to review and sign
School attorneys are not allowed the resolution meeting
the local or state ed. agency appoint the hearing officer
the hearing officer must be impartial and may not be an employee of the agency
the qualifications of the hearing officer must have the knowledge and the ability to understand the provisions of the IDEA and relevant state law, to conduct hearing and write hearing decisions with standard legal practice
both sides have the right to present evidence
parents can introduce independent evaluations as evidence at the hearing
the copy of the decision mailed to the parents within a certain time period
If the school is not able to resolve the issues in the due process complaint with 30 days from the time the complaint is received, the due process hearing can take place
final decision can be no later than 45 days
the parents must file a separate action in federal court to recover the fees unless some agreement can be reached between the school and parents
schools may recover their attorneys' fees

Schools may recover their attorneys' fees

parents' frivolous case
If the parent or attorney continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation
The parent's case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to increase the cost of litigation

Mediation

parties voluntarily come together and try to reach an agreement regarding the dispute
IDEA funding to ensure the alternative dispute resolution procedures such as_____________
a trained, qualified, and impartial__________

Mediator

help the parties reach some agreement that resolves the dispute between the parties
If the plan of the agreement has problems, the agreement can be enforced in state or federal court.
It must be in secret.

Redress

Some situations in IDEA do not provide redress'Section 504 and ADA provides certain protections (example: a student has been discriminated against based on the DA and seeks monetary damages as a remedy

Who is covered?

individuals with associational status ( ex. a school could not prohibit the attendance of a child whose parent had tuberculosis under the ADA)
section 504- protect individuals with infectious diseases in 1987
section 503 and 504 do not include individuals who have contagious diseases or infection that would be a direct threat to the health or safety of other individuals or is not able to perform the duties of the job
HIV positive may be under the ADA and Section 504
Programs subject to section 504 or the ADA are not obligated to make substantial modifications or fundamental alternations to the program to accommodate the DA
Programs are required to make reasonable accommodations where these do not pose an undue hardship on the program

CDC recommendations

case-by-case
decision making by the team
presumption of inclusion for most children
more restricted environment for preschool and neurologically impaired children until further stud of transmission in these settings is done
precautions in handling child's bodily fluids
routine procedures for handling bodily fluids of all children
continuing monitoring of the child's hygienic practices and appropriate responses to any changes
children in risk groups
no mandatory screening as a condition of enrollment

Disadvantages for section 504, ADA, Civil Rights Act

they do not have the built-in administrative deadlines

Section 504 plans in schools

reason for referral
eligibility determination
performance data
staff info.
parent/ student info.
specification of the impairment
major life activity
the degree to which it is affected

504 accommodation plans

basis for determining eligibility
goals of the plan
specific services
accommodations
modifications
assistive technology to be provided
When, where, and who will provide these services

Family Educational Rights and Privacy Act

records that directly relate to the student, and are maintained by an ed. agency or institution, or by a party acting for the agency or institution
handwriting, print, computer media, video- or audiotape, film, microfilm, and microfiche
the educational agency or institution must respond to a request for access to records within a reasonable period of time, but within 45 days after it received the request

Notice Requirements

notify parents and students about their rights
right to:
inspection and review
amend the student's ed. records
consent to disclosures of personally identifiable info. contained in the student's ed. record
file a complaint with the dept. of ed. concerning alleged failures by the ed. agency or institution to comply with FERPA

Handicapped Children's Protection Act of 1986

may allow for reimbursement for the cost of copying records if these are seen as related costs in an action where the parents prevail

Special Education Misconduct

Personnel are not adequately trained or prepared for children with special needs
Educational malpractice as a theory of liability
Special ed. misconduct
IDEA claims for remedies with financial obligations
Section 1983 of the Civil Rights Act
Parental dissatisfaction with a child being passed from grade to grade while failing to learn basic skills

Special ed. misconduct

actions that could potentially be remedied through common law tort suits

Section 1983 of the Civil Rights Act

constitutional torts

Injuries and Remedies

Some administrators do not comply with the clear administrative requirements
in-class discipline is inappropriate
Bus driver or other ed. employee assaults a child
inappropriate disciplinary measures damage the child's self-esteem
failure to provide a timely evaluation
failure to provide program dev.
failure to provide implementation
improper suspension
improper expulsion of a child with a DA
the total failure to implement an appropriate program

Actual physical injury

inadequate supervision of the child with a physical or mental disability in regular classroom, playground setting, or in situations

psychological or emotional damage

the teacher ridicules or permits other children to ridicule a child with a DA or when a teacher fails to give any attention to the child

Injunctive relief

requiring the school to stop doing what it is doing or to start doing something else

Public policy

some courts believe that it is inappropriate to require ed. agencies (which are supported by the taxpayer) to provide compensation for misconduct- even in some cases where the misconduct has resulted in serious damage

No duty exists

the elements of common law tort actions

list of no duty exists

a duty to adhere to a particular standard of conduct or to exercise reasonable care
a breach of the duty or a violation of a standard
casual connection between the breach and the injury
resulting injury
early cases denying recovery on negligence theories

Immunity

there will be_____________ from such actions
waivers for school bus accidents
do not apply to cases such as failure to supervise on the playground

Trends in awarding damages and compensatory ed. in misconduct cases

supervising children with DA has been at issue
example: the teacher, school nurse, and principal might be liable under section 1983 of the Civil Rights Act for failing to provide medication to a student with hypoglycemia in a timely manner
Individual supervisor can be held liable by adequately prepare personnel for the heightened awareness necessary to supervise students with DA

Infliction of emotional distress

emotional distress- emotional trauma
example of emotional trauma- a passing driver against the school for the driver's negligently supervising a child getting off the bus

Inappropriate disciplinary action

corporal punishment
improper supervision
infliction of emotional distress
disciplinary removal of a student

Misconduct in identification, placement, and program

courts generally rejected special ed. malpractice involving misconduct
Litigation may increase appropriate methodology for situations for children who are learning disabled or deaf

Which laws allow some monetary damages?

Section 504
ADA
Section 1983 of the Civil Rights Act
IDEA- courts are reluctant to award damages

Some courts limited damages

danger to the child
bad faith
failure to comply with clear requirements under the IDEA
Other courts do not allow people to receive monetary damages

Stay-put

the child to remain in the current placement pending a final decision in the dispute resolution process

Unilateral placement

the parents place the child in a private special ed. school on their own, pay for it on their own, and then request reimbursement from the school district for the tuition and related expenses

IDEA 1997 and 2004

the statute recognizes reimbursement as a remedy when the school district did not make FAPE available to the child in a timely manner and the placement chosen by the parents is appropriate under the IDEA

Compensatory ed.

If a student is not improperly educated in the past, redressing the situation can be by providing __________

Which laws allow attorney's fees to be recovered?

Section 504
Section 1983
ADA

Handicapped Children's Protection Act of 1986

is amended to the IDEA- it provides for the award of reasonable attorneys' fees and costs to parents who are prevailing parties

prevailing parties

eligible to recover attorneys' fees, a party must obtain a judgment on the merits, a consent decree, or some similar form of judically sanctioned relief

Catalyst theory

for attorneys' fees, which had allowed parties to collect attorneys' fees short of obtaining a judgment in their favor if they could show a casual connection between their efforts and obtaining the result that the party sought in litigation through some other means (such as a settlement agreement)

recovery in administrative actions

whether attorneys' fees are available for administrative proceedings
attorneys' fees are available for judical proceedings

Types of expenses

parents recover post-settlement costs and fees at the court's discretion
the US Supreme Court said that expert witness fees were not recoverable under the IDEA
Successful plaintiffs can recover the expert witness fees under Section 504 and the ADA

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