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- What is special education?
- Special education programs in Alaska are governed by both federal and state law, but in no circumstances may state provisions limit the protections offered under federal law.
- Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE). In particular, the Alaska special education statute is designed to comply with the requirements of federal law including the Individuals with Disabilities Education Act (IDEA).
- Who is eligible for special education?
Children between the ages of three and twenty-two with a qualifying disability in need of specialized educational services in order to benefit from their education are entitled to receive special education and related services.
Eligible disabilities include:
- mental retardation;
- learning disabilities;
- emotional disturbance;
- hearing impairment;
- orthopedic impairment;
- other health impairment;
- speech and language impairment;
- visual impairment;
- multiple disabilities;
- early childhood development delay;
- traumatic brain injury.
Alaska Stat. Sec. 14.30.350(2)
The school district must:
- first inform the parents through a written notice including a description of any evaluation procedures that the school district proposes to use.
- Then, the parents must then give consent in writing before any evaluation of the child can proceed.
- Then, the initial review process can proceed; a group of qualified experts and a parent of the child evaluating information about the child’s prior performance.
Examples of the information that may be examined include:
- information and evaluation provided by the child’s parent;
- current classroom-related assessments;
- classroom observations;
- local or state assessments;
- classroom work samples; and
- behavioral observations and assessments.
A child is not eligible for special education if the reason for the child’s special needs is:
- a lack of instruction in reading
- a lack of instruction in math
- limited English proficiency. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b).
Furthermore, “[e]valuation of a child who may have limited English proficiency should assess the child’s proficiency for English as well as the child’s native language to distinguish language proficiency from disability needs.” Alaska State Special Education Handbook Pt. III Sec. 5 (Nov. 2009).
The team then determines what, if any, additional information is necessary in order to determine:
- (i) whether the child has a disability
- (ii) whether the child requires special education
- (iii) whether any additions to the special education program are necessary
Alaska State Special Education Handbook Pt. III Sec. 6.
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).
FAPE means special education and related services that:
1. are provided at public expense and without charge
2. meet appropriate standards
3. include preschool through secondary education
4. conform with an Individual Education Plan (IEP).
5. Are provided in the least restrictive environment (LRE)
6. With students who are not disabled (to the extent appropriate)
34 C.F.R. Sec. 300.114.
Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities:
“adapting, as appropriate to the needs of an eligible child…the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. Sec. 300.38(b)(3).
An “appropriate” educational program and placement is:
- Designed to meet a student’s unique needs in accordance to his or her IEP
- Allows him or her to obtain “educational benefit” (the child is making progress toward achieving his or her IEP goals). County of San Diego v. Cal. Special Ed. Hearing Office, 93 F.3d 1458 (9th Cir. 1996).
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
In addition to being required to provide a free appropriate public education, school districts are required to provide “related services,”
Related services allow a student to benefit from his or her special education program at no cost to the parents.
Related services may include any of the following:
- speech language pathology and audiology services;
- interpreting services;
- psychological services;
- physical and occupational therapy;
- recreation, including therapeutic recreation;
- early identification and assessment of disabilities in children;
- counseling services, including rehabilitation counseling;
- orientation and mobility services; and
- medical services for diagnostic or evaluation purposes.
34 C.F.R. Sec. 300.24(a).
- Who provides special education?
The Alaska Department of Education & Early Development (ADEED) and the local school district are both responsible for ensuring that appropriate special education services are delivered.
In Alaska, services may be provided by:
- a borough or city school district in which a child with a disability resides;
- the board of a regional educational attendance area operating a school in the area for a child with a disability residing in the area served by the school;
- the borough, city school district, or regional educational attendance area in which a treatment facility or a correctional or youth detention facility is located for a child with a disability placed at the facility;
- a state boarding school established under Alaska Stat. Sec. 14.16 for a child with a disability enrolled at a state boarding school; and
- a school district that provides a statewide correspondence study program for a child with a disability who is enrolled in the program.
Alaska Stat. Sec. 14.30.186(a)(1–5).
If the school district fails to ensure services, the ADEED is ultimately responsible for providing special education services.
20 U.S.C. Sec. 1413(a)(1); 20 U.S.C. Sec. 1412(a)(11); 34 C.F.R. Sec. 300.149.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
Before an initial evaluation of a child, the school district must obtain the written informed consent of the parent.
A parent must provide consent to both:
- (i) conduct the initial evaluation and
- (ii) release information from non-educational agencies.
A parent may revoke such consent at any time prior to the initial evaluation.
After the parental consent is obtained, a group of qualified professionals and a parent will conduct an initial evaluation consisting of preexisting information such as:
- behavioral observations and assessments,
- classroom samples,
- information provided by the child’s parents.
If no additional information is determined to be needed, then the school district must provide written notice to the child’s parents notifying them:
- (i) of the determination and reasons for the determination,
- (ii) of the rights of the parents to request an assessment, and
- (iii) that the school district is not required to conduct an assessment of the child unless parent’s request it.
If the team determines that more information is needed, then the school district must administer the necessary tests and evaluations to produce the necessary data. Alaska State Special Education Handbook Pt. III Sec. 3.
Once the team has performed the necessary tests and reviewed the evaluation materials, the team must determine whether the child is eligible for special education services.
A written evaluation/eligibility report must be prepared when a child is eligible for special education services and must provide information from all of the evaluations performed. A copy of the report must be given to the parents. Alaska State Special Education Handbook Pt. III Sec. 6.
If a parent disagrees with the result of an evaluation performed by the school district, he or she may obtain an independent educational evaluation by choosing a person from a list provided by the district or by choosing an agreed upon person at the expense of the school district.
A re-evaluation of must be conducted by the school district for each child with a disability every 3 years. Alaska State Special Education Handbook Pt. III Sec. 7.
- Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parents have any say so in the IEP?
Once it is determined that a child is eligible for special education, an IEP must be developed for the child no later than thirty days after the determination of the child’s eligibility for special education services. Alaska Stat. Sec. 14.30.276; 4 A.A.C. 51.140(a)(2).
An IEP outlines in writing the educational program for the student.
It is developed at a meeting by a team including:
- the parent,
- a special education teacher,
- a regular education teacher,
- a district representative,
- when appropriate, the child.
Other participants may include:
- the representative of a private school,
- transition service provider,
- early childhood transition coordinator,
- related service personnel, or
- other individuals who has knowledge or special expertise regarding the child. 34 C.F.R. Sec. 300.21(a); Alaska State Special Education Handbook Pt. IV Sec. 4.
In order to ensure that one or both parents of the child attend the IEP meeting, the school district should:
- schedule the meeting at a mutually agreed upon date, time, and place;
- give parents an invitation to the meeting with at least ten school days advance notice unless agreed upon to be sooner or unless an emergency circumstance requires a meeting to be held sooner; and
- arrange telephone conference calls with parents if they are unable to attend. 34 C.F.R. Sec. 300.322(a); Alaska State Special Education Handbook Pt. IV Sec. 4.
The IEP must include:
- the student’s present level of academic achievement and functional performance;
- a statement of secondary transition service needs and needed transition services for children;
- a statement that the child has been informed of his or her rights under IDEA 2004 that will transfer to him or her upon reaching the age of majority;
- A statement addressing the following special factors, if they exist:
- (i) the child’s behavior,
- (ii) the child’s limited English proficiency,
- (iii) the child’s visual impairment,
- (iv) the child’s deafness,
- (v) the assistive technology that the team determines is necessary for the child to access or benefit from an educational program;
- a statement of accommodations that are necessary to measure the statewide academic achievement of the child;
- a statement of how the parents will be informed of the child’s progress toward his or her goals;
- measurable, annual goals including academic, functional goals and short-term objectives or benchmarks;
- a statement explaining modifications/accommodations for the child and support that will be provided to school personnel;
- the need for an extended school year, if it is determined to be necessary;
- a statement of the specific special education, supplementary aids, and services to be provided to the child based on peer-reviewed research to the extent practicable;
- the start date and the anticipated frequency, duration, and location of services to be provided to the child;
- a statement explaining to what extent the child will not be able to participate in regular education programs; and
- a statement explaining the extent, if any, to which the child will not participate with children without disabilities in the general education curriculum and regular classroom. 34 C.F.R. Sec. 300.320(a); Alaska State Special Education Handbook Pt. IV Sec. 8.
If a student with an IEP moves from one school district to another within Alaska, the new school district must determine whether to accept the eligibility determination and the IEP established by the previous school district.
If the new school district decides to reject the child’s eligibility for special education services, it must convene a meeting of the IEP team meeting in order to initiate a re-evaluation.
If the new school district decides that a new IEP is needed, it may provide interim services if agreed to by all parties.
- However, if no agreement can be reached, then it must continue to implement the current IEP to the extent possible until the new IEP is developed. Alaska State Special Education Handbook Pt. IV Sec. 6.
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
The parent may file a complaint directly with the Alaska Department of Education & Early Development (ADEED).
The complaint must:
- allege a violation that occurred within the last year (unless a longer period is reasonable because the violation is continuing). Alaska State Special Education Handbook Pt. VII, Sec. 5; 34 C.F.R. Sec. 300.151–53.
- Be made to the Department, with a copy provided to the District.
- Be signed
- Include the following information:
- Name of school district or agency the complaint is against
- Name, address and telephone number of the person making the complaint
- Name and contact information for the child, the school the child attends
- An explanation of alleged violations of federal or state requirements
- The facts upon which the allegation or allegations are based
- The date of each alleged violation or, in the case of an alleged continuing violation, the date that the first violation took place and the history of the continuing violation up to the date of the complaint
ADEED will investigate and issue a decision within sixty days, providing reasons for its decision.
If the party does not agree with the decision of the ADEED, the party may appeal through a due process hearing, or, if a hearing has already taken place, may appeal directly to superior court. Alaska State Special Education Handbook Pt. VII, Sec. 5; 34 C.F.R. Sec. 300.151–53.
- What options does a parent have if he or she disagrees with the proposed IEP placement or services? What are the procedures for due process?
When the school district changes the identification, evaluation or provision of special education relating to the FAPE of the child or when the district refuses to implement changes to the IEP, it must provide the parents with written notice:
- (i) explaining why the school district proposed or refused to act;
- (ii) describing any other proposals that the IEP team considered along with an explanation of why they were not adopted; and
- (iii) describing each evaluation procedure, assessment, record, or report used by the district in either adopting the proposed change or refusing to implement a change. Alaska State Special Education Handbook Pt. VII Sec. 6.
A parent may file a request for a due process hearing with the ADEED anytime within one year of when the parent became aware of an alleged violation or any matter relating to the identification, education, or educational placement of the child. Alaska State Special Education Handbook Pt. VII Sec. 6.
Before a due process hearing will be provided, the parents must file a signed notice that includes:
- (i) the child’s name and address,
- (ii) the name of the school,
- (iii) a description of the alleged violation, and
- (iv) a proposal for resolving the alleged violation.
Any party may assert that the due process complaint is insufficient by notifying the hearing officer and the parent within fifteen days of receipt. 4 A.A.C. 52.550(a).
The school district must have a resolution meeting, within fifteen days, with:
- the parent
- the IEP team members with knowledge of the facts at issue in the due process hearing request.
- a member of the school district
This meeting must take place unless both the parents and the school district agree in writing to waive the meeting or if both parties agree to participate in mediation. 4 A.A.C. 52.555(c).
If the parties are unable to resolve the issues within thirty days after receipt of the hearing request, the due process hearing may occur. The school district must inform the parent of any free or low-cost legal or other relevant service available in the area no less than ten days prior to the hearing. Alaska State Special Education Handbook Pt. VII Sec. 6.
A parent must be given an opportunity at least five business days prior to the scheduled date of the hearing to examine reports, files, and records relevant to the issues raised in the due process hearing request
o Furthermore, no less than five business days prior to the scheduled date of the hearing, each party must turn over to the other party all evidence that it intends to use at the hearing other than evidence only intended to be used in the case of rebuttal. 4 A.A.C. 52.550(h).
Once the hearing has been completed, the hearing officer will send a copy of the decision to each party within forty-five days after one of the following events:
- (i) receipt of the parents’ and the school district’s written waiver of the resolution meeting;
- (ii) receipt of the parents’ and the school district’s written agreement that resolution is not possible; or
- (iii) the withdrawal of either the parents or the school district from the mediation process. 4 A.A.C. 52.550(k).
If the school district fails to send the written notice before a parent requested a due process hearing, then the forty-five day window starts from the date on which the school district sent the written notice. Alaska State Special Education Handbook Pt. VII Sec. 6.
During the due process proceedings, the child must remain in the same educational placement as he or she was in before the end of the proceedings unless the parties agree otherwise.
- However, if the due process hearing request involves an initial application for entry into a public school, then the child must be placed in that school awaiting the outcome of the hearing. 4 A.A.C. 52580(b)
Once the hearing officer has issued his final decision, the parent may appeal the decision to the Superior Court. 4 A.A.C. 52.540(p).
- Where should a child receive his or her special education and related services? What is a “least restrictive environment”?
Special education students must be educated with children who are not disabled “to the maximum extent appropriate,” unless the “nature or severity of the child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Alaska Stat. Sec. 14.30.276.
- Can a special education student be disciplined?
Children with disabilities are subject to the same procedures as non-disabled students (when the discipline results in no more than ten consecutive days of removal from school). 34 C.F.R. Sec. 300.530(b); Alaska State Special Education Handbook Pt. IV Sec. 12.
Removal of the child from his or her assigned classroom constitutes a removal if, for up to ten consecutive days of suspension:
- (i) The child is able to continue to progress with his or her prescribed curriculum
- (ii) the child is able to continue to receive services prescribed in the child’s IEP, and
- (iii) the child is able to continue to participate with children without disabilities to the same extent
- (iv) a removal from transportation services causes a child to not attend school
For suspensions in excess of ten consecutive days, there must be a manifestation-determination meeting. 20 U.S.C. Sec. 1415(k)(1)(B).
Suspensions for more than ten consecutive school days, more than ten cumulative school days for a pattern of behavior, and expulsions are considered “changes of placement”
Schools cannot change special education students’ placements without parental consent or a manifestation determination meeting, unless the student is involved with:
- weapons, or
- presents a danger to himself or others. 20 U.S.C. Sec 1415(k)(1)(G).
In such circumstances, the district may place the student in an interim alternative setting for up to forty-five days. 20 U.S.C. Sec. 1415(k).
A manifestation determination meeting is a meeting of the relevant members of the IEP team to determine whether a child with a disability may be expelled or have his placement changed for more than ten consecutive school days for misconduct.
The team must consider two issues:
- (i) was the behavior caused by, or did it have a direct and substantial relationship to, the child’s disability?
- (ii) was the behavior the direct result of the school’s failure to implement the IEP?
If the team answers yes to either question, the child cannot be expelled and a placement change would require the consent of the parent or a hearing officer’s order.
If the IEP team determines that the behavior is a manifestation of the child’s disability, the child must return to his original placement, unless the parents and school agree otherwise. The school must also do a functional behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior.
If the team denies that the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing. The appeal should be resolved within 30 days, and in the interim, the child remains in the interim educational setting. 20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f).
Students with disabilities must continue to receive educational services:
- during any period of suspension beyond ten days,
- during any period of interim placement, and
- during any period of expulsion.
That enable him to:
- continue to participate in the general curriculum to
- continue to progress toward meeting his IEP goals
- receive needed behavioral assessments and services. 20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)(i)(ii).a
- Can parents see the school records of their special education child?
A school district must provide a parent with a copy of any educational records of the child (at the parent’s request) with regard to the:
- evaluation, and
- educational placement of the child and the child’s education plan.
The school district must allow the parents to:
- inspect and review records
- respond to any reasonable request for explanation and interpretation of a record.
4 A.A.C. 52.510(b).