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- What is Special Education?
- Special Education is schooling that has been specifically designed to meet the needs of a child with a disability.
- Under federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).
- Who is Eligible for Special Education?
- A child with a qualifying disability is eligible for special education if his or her disability prevents him or her from reasonably benefiting from regular education.
- Eligible disabilities include:
- Mental retardation;
Hearing impairments (including deafness);
Speech or language impairments;
Visual impairments (including blindness);
Serious emotional disturbance;
- Orthopedic impairments;
Traumatic brain injury;
Other health impairments;
Specific learning disabilities; and
Developmental delays (ages 3-9 discretion of state).
Title 20 United States Code (U.S.C.) Sec. 1401(3); Title 34, Code of Federal Regulations (C.F.R.) Sec. 300.8.
- Colorado organizes these federally recognized disabilities into the following categories:
- Physical disability or sustained illness;
Significant limited intellectual capacity;
Significant identifiable emotional disability;
Specific leaning disability;
Speech or language impairment;
- Preschool child with a disability; and
- Infant/toddler with a disability,
- Colorado Revised Statutes (C.R.S.) 22-20-103(a); 1 Colorado Code of Regulations (CCR) 301-8, 2220-R-2.08.
- A child is eligible for special education between the ages of 3 and 21. If a child turns 21 after the start of the school-year, the child has the right to complete the semester in which he or she turns 21. 1 CCR 301-8, 2220-R-2.08.
- Children who have not yet reached 3 years of age may be eligible for the following services:
Early Intervention Services: these services are available to children from birth to two years of age. A child is eligible for these services if he or she has significant developmental delays and who will potentially be identified as a special needs child later in life. 1 CCR 301-8, 2220-R-2.08(10).
Preschool Special Education: These services are available for children from age three to five. A child is eligible for these services if he or she qualifies from one or more disability categories but the category cannot be appropriately determined. 1 CCR 301-8, 2220-R-2.08(9).
A child may have a medical diagnosis for a disability, but not qualify for special education. If a child only needs a “related service” to benefit from special education, he or she does not qualify for full special education services. 1 CCR 301-8, 2220-R-2.08.
Related Service: These are services that are necessary for a child to gain all the benefits from the education curriculum.
A child is not eligible for special education and related services if the child’s disability is a lack of skills in reading, writing, math or English proficiency. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b); 1 CCR 301-8, 2220-R-2.08.
- 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 are provided:
- At public expense;
- Without charge;
- Meet appropriate standards;
- Include preschool through secondary education;
- Conform with an Individualized Education Program.
U.S.C. 1401(9); 34 C.F.R. sec. 300.17; 1 CCR 301-8, 2220-R-2.1
- Special Education can be provided in:
- Other settings.
20 U.S.C. sec. 1401(29).
- 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 receiving special education, children with disabilities are entitled to receive related services. 20 U.S.C. 1401(26); 1 CCR 301-8, 2220-R-2.37.
- Related services may include:
Transportation, including any equipment required to provide such transportation ;
Speech-language pathology and audiology services;
Physical and occupational therapy;
Recreation, including therapeutic recreation;
Social work services;
School nurse services designed to enable a child with a disability to receive a FAPE as described in the child’s IEP;
Counseling services, including rehabilitation counseling;
Parent counseling and training
1 CCR 301-8, 2220-R-2.37(1).
- Related services do not include a medical device that is surgically implanted, the optimization, maintenance, or replacement of that device. 20 U.S.C. 1401(26)(B); 1 CCR 301-8, 2220-R-237(2).
- Who provides special education?
- Special education is provided by “Special Education Administrative Units.” These units are school districts that have met particular administrative requirements and are part of a Board of Cooperative services. 1 CCR 301-8, 2220-R-3.01.
- According to the Exceptional Children’s Educational Act (ECEA), the school district of the child’s place of residence is responsible from providing the child with special education and related services. A.C.B. v. Denver Dept. of Soc. Servs., 725 P.2d 94, 96 (Colo. App. 1986).
- Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
- • Special Education must be provided in the least restrictive environment.
- LRE: To the maximum extent appropriate all students with disabilities should be educated with students who are not disabled. 34 C.F.R. sec. 300.114.
- If a child’s disability interrupts the regular educational environment even after the use of supplementary materials, the child may be removed from his/her educational environment.
20 U.S.C. 1412 (a)(5)(A); 34 C.F.R. sec. 300.114.; 1 CCR 301-8, 2220-R-2.28(2).
- How is a child determined to be eligible for special education? Is there an assessment or evaluation? Do parents have a say in the assessment?
- Colorado requires each administrative unit to develop procedures from identifying and evaluating children who are eligible for special education. These procedures must be available to all children from age birth to 21. 1 CCR 301-8, 2220-R-4.02(1).
- Parents can make a written request for a special education evaluation. With parental consent, administrative units and state-operated programs also request an evaluation on a child. 1 CCR 301-8, 2220-R-4.02(3).
- Parental consent for an evaluation does not indicate parental consent for special education.
- If a parent is unwilling to provide consent, the state agency may pursue an evaluation of a child by mediation or by filing for a due process complaint (due process: the administration of justice according to established rules and principles.)
20 U.S.C. 1410(a)(1)(D); 34 CFR sec. 300.300(a)
- Parents are entitled to inspect and review the evaluation. 1 CCR 301-8, 2220-R-6.02(1); 34 CFR sec. 300.501.
- If the parent disagrees with findings of the evaluation, the parents can request an independent educational evaluation (IEE) at no cost to the parent.
- If the district believes that its findings are correct, it can file for a due process hearing. If it wins at the hearing, the parents can still request an IEE but the state is not obliged to pay for its cost.
1 CCR 301-8, 2220-R-6.02(2); 34 CFR sec. 300.502
- Evaluations are conducted by a team that has special knowledge about the child and the child’s disability. The team must include:
- The parent;
- At least one teacher or specialist with knowledge in the area of the child’s disability;
- Other qualified professionals, as necessary.
1 CCR 301-8, 2220-R-4.02(6)(b).
- Once a child is found eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parent have any say in the IEP?
- If the child is eligible for special education, the team of specialist and the director of special education develop an Individualized Education Plan (IEP). The IEP outlines the student’s educational program. 1 CCR 301-8, 2220-R-4.03(5); 34 CFR sec. 300.321
- If appropriate the child and any other person with special expertise regarding the child or the child’s disability may help develop the IEP.
- The IEP must include:
- The child’s present levels of academic achievement and functional performance;
- Measurable annual goals;
- How the child’s progress toward those annual goals will be measured and reported;
- The special education and related services and supplementary aids to be provided to the child;
- Extent to which the child will not participate with nondisabled children in regular education classes as well as extracurricular and nonacademic activities;
- Accommodations necessary to measure the academic achievement and functional performance of the child on state and districtwide assessment
- Anticipated start date services as well as the duration, frequency, and location of services and modifications
- If the child has a hearing disability, the IEP must include a communication plan and the communication-accessible service the child will receive.
- If the child has a vision disability, the IEP must include a learning media plan by a licensed teacher endorsed in the area of visual impairment.
- Once the child turns 15 the first IEP developed must include measurable postsecondary goals related to training, education, employment. If needed the IEP must also include independent living skills and transition services needed to assist the child in reaching those goals.
- At least one year before the child turns 21, the IEP must contain a statement that the child has been informed that all the rights afforded to the child’s parents will transfer to the child at age 21.
34 CFR sec. 300.320 1 CCR 301-8, 2220-R-4.03(6).
- At any time a parent can decide that their child will no longer receive special education.
- If a parent withdraws consent for special education services, the public agency cannot provide the services and cannot request mediation services or a due process hearing. 20 U.S.C. sec. 1414(1)(D); 34 C.F.R. sec. 300.300(b); 1 CCR 301-8, 2220-R-4.01.
- What if Parents believe the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP)?
- If a parent believes the district has committed any of the following, he or she may file a complaint against the Colorado State Department of Education:
- failed to implement a valid IEP;
- has failed to follow special education;
- Is discriminating against a student or group of students.
- The Colorado Department of Education will investigate and will issue a decision within 60 days.
1 C.C.R.301.-8 2220-R-5.01(11)
- What options does a parent have ifs/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
- A parent may file a due process complaint, if he or she has any issues relating to:
- The proposal or to initiate or change the identification;
- Evaluation or educational placement of a child;
- Provision of a free appropriate public education to a child.
- The parent must file the complaint with the Special Education Director of the affected administrative unit or state-operated program.
1 C.C.R.301.-8 2220-R-6.02
- The complaint should contain:
- Identifying information;
- Sufficiently detailed facts to notify the district of the nature and legal basis for the dispute;
- The facts supporting the parent’s position;
- Proposed resolution.
- If the complaint does not contain the above information the district may file a notice of insufficiency within 15 after the parents introduced the proposed resolution. The parent then has 5 days to add the missing information to the complaint.
1 C.C.R.301.-8 2220-R-6.02(7)(a)(i)
- If the administrative unit does not resolve the complaint within 30 days of the receipt of the due process complaint, a due process hearing may occur.
- A final decision must be issued within 45 days after the 30 day resolution period expires.
1 C.C.R.301.-8 2220-R-6.02(7)(a)
- The parent and district must participate in an informal resolution process unless both parties agree that they do not want it, or agree to use a mediation process. 1 C.C.R.301.-8 2220-R-6.02(7)(d)(i)(C)(I) and (II).
- The resolution session must occur within 15 days of the parent’s complaint.
- The resolution session must be completed within 30 days thereafter. 1 C.C.R.301.-8 2220-R-6.02(7)(d)(i)(A)
- The parent may bring a lawyer to the session.
- Note: The district may only bring a lawyer to the session if the parent does so too.
- If the parties reach an agreement at the resolution meeting, the agreement must be put in writing
- Both parties have three days to revoke their agreement. If they do not revoke their agreement, the agreement is binding and enforceable in state and federal court. 1 C.C.R.301.-8 2220-R-6.02(7)(a) and following.
- Parents may waive the resolution session to participate in mediation instead.
- Mediation: a voluntary and confidential process in which a trained, objective facilitator works with both parties to reach and agreement.;
- The Colorado State Department of Education is responsible for the cost of the mediation process.
- All discussion during the mediation process are confidential, they cannot be used in any future civil proceeding or due process hearing.
- Written, signed mediation agreements are enforceable in Colorado state and federal court.
1 C.C.R.301.-8 2220-R-6.02(6).
- If no resolution is reached prior to the expiration of the 30-day period, then a due process hearing will occur. C.C.R.301.-8 2220-R-6.02(7)(f)(i). At the hearing the parent has the right to:
- be accompanied and advised by an attorney; 1 C.C.R.301.-8 2220-R-6.02(7)(g).
- have the child with disability present;
- have the hearing open to the public;
- have the record of the hearing;
- The findings of fact and the decision provided to him/her.
- Present witnesses and evidence;
- Cross examine witnesses and evidence presented by the school district.
1 C.C.R.301.-8 2220-R-6.02(7)(g)
- Can special education student be disciplined?
- Students with disabilities may be suspended for any of the misbehaviors on the list of prohibited activities that applies to all students in the student discipline code, even if the misbehavior is a manifestation of the child’s disability. 1 C.C.R.301.-8 2220-R-6.02(10).
- A child with the disabilities is subject to the same suspension rules as non-disabled students. The suspension of a child with disabilities cannot be more than 10 consecutive school days without a manifestation determination review.
- Manifestation determination review: 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 10 consecutive school days for misconduct
- The team must consider whether the behavior was caused by the child’s disability or a result of the school’s failure to implement the IEP.
- If the misbehavior was caused by the child’s disability,
- The child cannot be expelled
- A placement change would require the consent of the parent or an order of a hearing officer;
- The student must return to his original educational placement unless the parents and school agree otherwise.
- The school must also do a behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior.
- If the team denies the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing.
1 C.C.R.301.-8 2220-R-6.02(10)(k)
- For certain behavior the school may suspend the student for more than 10 consecutive days without holding a manifestation determination review. This behavior includes:
- Involvement with drugs
- Involvement with weapons
- Behavior that is dangerous to himself or to others.
- Note: if a student with a disability engages in any of these behaviors, the school can place him or her in a temporary alternative educational setting for up to 45 days.
- The school must continue to provide the student with special education during the student’s suspension to ensure that he makes progress towards meeting his IEP goals. 1 C.C.R.301.-8 2220-R-6.02(10)(m)
- Can parents see the school records of their special education child?
- A parent is entitled to inspect and get a copy of all of a child’s school record.
- The applicable administrative unit must comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing or resolution session, and no more than 45 days after the request has been made.