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- What is special education?
- Special education programs in Idaho are governed by both federal and state law, but in no circumstances may state laws limit the protections offered under federal law.
- Under both federal and state law, school districts must provide each student with a disability a “free appropriate public education” (“FAPE”)
- Who is eligible for special education?
- Children between the ages of three and twenty-one with a qualifying disability are eligible for special education and related services.
- Eligible disabilities include:
- intellectual disabilities;
- hearing impairments (including deafness);
- speech or language impairments;
- visual impairments (including blindness);
- serious emotional disturbance;
- orthopedic impairments;
- severe or multiple disabilities;
- traumatic brain injury; and
- developmental delays, health impairments, or specific learning disabilities.
- Infants and toddlers less than three years of age who show a significant developmental delay in self-help or adaptive skills, cognitive skills, communication skills, physical development, or social and emotional development may also qualify for special education services. See Idaho Health and Welfare Department, “Idaho Infant Toddler Program eManual,” available online at: http://www.healthandwelfare.idaho.gov/Portals/_Rainbow/Manuals/FACS/ITP_eManual/Idaho_Infant_Toddler_Program_eManual.htm
- A child is not eligible for special education if:
- The disability does not adversely affect educational performance
- The disability does not result in a need for specially designed instruction
- The disability does not meet the state disability criteria in the “eligibility evaluation” (Idaho Special Education Manual, ch. 1, sec. 3).
- A lack of instruction in reading or math or limited English proficiency is the determining factor in identifying whether a student has a disability. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b).
- The district offers to provide special education services, but the parents chooses to place the student in a private school or facility instead
- 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:
1. Provided at public expense and without charge
2. Meet “appropriate standards”. Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S.176 (1982).
3. Include preschool through secondary education
4. Follow an Individual Education Program (IEP). 20 U.S.C. Sec. 1401(9); 34 C.F.R. Sec. 300.17.
- Special education must be provided in the least restricted environment (LRE), with non-disabled students, and may include related, transitional, supplementary, and assistive technology services. Idaho Special Education manual, ch. 1, sec. 4.
- Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. This instruction means:
- “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).
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
- A free appropriate public education also must include “related services.”
- Related services are required to enable the student to benefit from his special education program at no cost to the parents. They include, but are not limited to:
- speech therapy;
- language therapy;
- psychological services;
- physical therapy;
- occupational therapy;
- therapeutic recreation;
- early identification and assessment of students’ disabilities;
- rehabilitation counseling services;
- orientation and mobility services;
- medical services for diagnostic or evaluative purposes;
- school nurse services;
- social work services in school;
- supports for school staff;
- parent counseling and training (including helping a parent understand the special needs of his or her child, and assisting the parent in acquiring the skills necessary to support the implementation of his or her child’s IEP); and
- interpreter services.
Idaho Special Education Manual, Glossary, p. xxix; 34 C.F.R. Sec. 300.34.
- Who provides special education?
- The local school district is primarily responsible for ensuring that FAPE is available to all students in the district who are eligible to receive the services.
- The State Board of Education sets policy and the State Department of Education implements policy. In addition, the Idaho State Department of Education, and other public agencies responsible for providing special education services (such as the Department of Juvenile Corrections and the Idaho School for the Deaf and Blind) are all responsible for ensuring the appropriateness of special education services.
- See Idaho Special Education Manual, ch. 2, sec. 2; State Superintendent of Public Instruction, Primer on Special Education in Charter Schools, March 2006, available online at: http://www.edgateway.net/cs/spedp/download/uscs_rs/2457/Idaho_Primer.pdf
- The State Department of Education is ultimately responsible for monitoring all state education and private agencies that provide special education services to students with disabilities. 20 U.S.C. Sec. 1413(a)(1); 20 U.S.C. Sec. 1412(a)(11); 34 C.F.R. Sec. 300.149; IDAPA 08.02.03.109.
- Where should a child receive his or her special education and related services? What is a “least restrictive environment”?
- Specialized education can be offered in:
- The mainstream classroom
- In a resources room
- At home
- In hospitals or residential programs
- Special education must be provided in a least restrictive environment (LRE).
- To the maximum extent appropriate, children with disabilities must be educated with their nondisabled peers.
- Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications, supplementary aids and services are insufficient in the general education environment.
20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114.
- These factors must be considered when determining an LRE:
- the requirements of the student’s IEP
- the ability to place the student with age-appropriate peers;
- the location of the school;
- any potential long-term harmful effects on the student; and
- the opportunities of the student to participate with students without disabilities in nonacademic and extracurricular activities to the maximum extent appropriate.
Idaho Special Education Manual, ch. 6, Section 1.B.
- What is “Child Find”?
- Each district must implement a “Child Find” system to locate, identify, and evaluate students suspected of having a disability in need of special education services, between the ages of three and twenty-one.
- The district may:
- Engage in “screening” to identify students who are not meeting the Idaho Content Standards or Idaho Early Learning Standards.
- Consider providing educational services and supports, if the school’s screening process shows that a student is at risk of not meeting these standards. See Idaho Special Education Manual, ch. 3, Section 1, 3.A.
- If it is suspected that the student has a disability, the student will be brought to the attention of an evaluation team to determine whether the student requires special education services.
- The parents must be notified of the process involved in the decision
- If the consent is refused, and the child is either home schooled or placed in a private school at the parent’s own expense, the district may not use either mediation or due process procedures to obtain consent. See Idaho Special Education Manual, ch. 3, Section 1-4.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
- Either the parent, or a public agency, can make a request for an initial eligibility evaluation. The team will review the following information:
- evaluations provided by the parent or adult student concerning the student;
- classroom-based assessments and observations;
- observations by teachers and related service providers; and
- results from state-wide and district-wide testing.
Idaho Special Education Manual, ch. 4, Section 5.B.
- The evaluation team will schedule an assessment to assess the student in all areas related to the suspected disability, including:
- Social and emotion status
- General intelligence
- Academic performance
- Motor abilities
- The assessment must:
- Not be discriminatory on a racial or cultural basis
- Be administrated in the student’s native language
- Administrated by trained and knowledgeable personnel
- No single measure or assessment can be used as the sole factor for determining whether the student has a disability, nor can any single measure be used for determining the appropriate educational program for the student. Idaho Special Education Manual, Glossary, p. xxii; Idaho Special Education Manual, ch. 4, Section 5.
- If the evaluation team determines that the student is not eligible for special education, the district must provide written notice to the parent informing them of that decision. Idaho Special Education Manual, ch. 4, Section 6.D.
- If the parent disagrees, he or she may request mediation, file a due process hearing challenging that decision, or seek an independent educational evaluation (IEE). The district must provide the IEE to the parent at no cost if the parent disagrees with the evaluation, although the parent is entitled to only one IEE at public expense for each district evaluation. Idaho Special Education Manual, ch. 11, Section 6.
- 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 is developed for that child.
- An IEP outlines in writing the educational program for the student.
- It is developed at a meeting by a team including the parents, the student (if appropriate), the student’s teachers, and other district personnel. Idaho Special Education Manual, ch. 5.
- In developing the IEP, the IEP team must consider:
- the strengths of the student
- the concerns of the parents for enhancing the education of their child
- the results of the initial or most recent evaluation of the student
- the academic achievement, developmental, and functional needs of the student.
- The IEP must include:
- general identifying information, such as the student’s name, native language, birth date, identification number, names of parents, address, phone number, school, and grade;
- documentation of the attendance of IEP team members at IEP team meetings;
- the present level of academic achievement and functional performance of the student;
- a statement describing how the student’s progress toward IEP goals are measured, and how the parent will be informed of the student’s progress towards those goals; and
- a description of the related services and any instruction specially designed to meet the unique needs of the student.
- The IEP must be designed to address the unique needs of the student and ensure that the student has access to the general curriculum according to Idaho’s Content Standards. Idaho Special Education Manual, ch. 5, Section 2.
- If a student with an IEP transfers from one Idaho school district to another, the new district must provide the student with FAPE, including services comparable to those described in the previously held IEP, until the district either adopts the previously held IEP, or develops and implements a new IEP.
- If a student with a disability transfers from another state in which the student had an IEP to an Idaho school district, the Idaho school district will provide the student with FAPE, with services comparable to those described in the previously held IEP. This will continue until the district conducts an evaluation, and if necessary, implements a new IEP. Idaho Special Education Manual, ch. 5, Section 4.
- 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 formal complaint with the State Department of Education by mail, fax, or hand delivery.
- The complaint must relate to a violation that occurred not more than one year prior to the date that the complaint is received by the Department.
- A complaint should be in writing and include the following information:
- the date, and the name, address, and telephone number of person making the complaint, and the contact information for the student involved
- the signature of the person making the complaint;
- A statement that the district has violated federal law, and facts or a description of the events that support each statement
- A proposed resolution of the problem
Idaho Special Education Manual, ch. 13, Section 3.A.
- The State Department of Education will then notify the parent, ask for further information, and issue a final report.
- What options does a parent have if he or she disagrees with the proposed IEP placement or services?
- If a parent disagrees with or objects to the proposed IEP placement or services, or if the parent believes the district has failed to comply with the child’s IEP, the parent is entitled to file for mediation or a due process hearing with the State Department of Education, Division of Student Achievement and School Accountability, Special Education. Idaho Special Education Manual, ch. 13, Section 4.
- Mediation is a voluntary, confidential, and informal process where a third-party assists the parent and district personnel in resolving their dispute, provided at no cost to the parents and schools.
- If mediation fails, or if the parent chooses to not engage in mediation, the party may request a due process hearing. A request for a due process hearing must be made in writing and include the following:
(i) the current date,
(ii) the student’s name, address and school district,
(iii) the signature of the individual making the request
(iv) a description of the nature of the problem, and
(v) a proposed resolution of the problem.
Idaho Special Education Manual, ch. 13, Section 4.D.
- After the request is filed, the district must inform the parent of any free or low-cost legal services available to him or her and provide a copy of the Procedural Safeguards.
- If the request is not complete, the other side has fifteen days to challenge the request, and ten days to file a response addressing the issues raised in the request. Idaho Special Education Manual, ch. 13, Section 4.E.
- Within fifteen days of receiving the request, a resolution session will be held in order for the parent to discuss the request.
- If no resolution is reached: a due process hearing will be scheduled within thirty days from the receipt of the request for the hearing. Idaho Special Education Manual, ch. 13, Section 4.E.5.
- If the parties reach an agreement:
1. the agreement must be put in writing
2. both parties have three days to revoke their agreement,
3. in the event they do not revoke the agreement, the agreement is binding and enforceable in state or federal court. Idaho Special Education Manual, ch. 13, Section 4.E.
- In preparation for a due process hearing:
- the parent or adult student must be allowed to inspect and review the student’s reports, files, and records at least five days in advance
- At least five days before the hearing, both sides must disclose to the other side all exhibits that will be used, a list of all witnesses intended to be called at the hearing, all evaluations that have been completed, and all recommendations based on those evaluations. Idaho Special Education Manual, ch. 13, Section 4.E.6.
- At the hearing, the parent or adult student has the right to:
- be accompanied by legal counsel
- make the hearing open to the public. The district must provide reasonable accommodations as required by federal regulations. At the close of the hearing, a verbatim transcript will be provided free of charge to the parent. Idaho Special Education Manual, ch. 13, Section 4.E.7-8.
- Once the request for a hearing is made, the student is entitled to “stay put” in his or her current educational placement, unless the district and parent (or adult student) agree otherwise, until the hearing is resolved.
- In the case where the dispute involves denial of admission to a public school, the student (with the consent of the parent) will be placed in the public school program until the proceedings are completed. Idaho Special Education Manual, ch. 13, Section 4.E.8.i.
- Can a special education student be disciplined?
- Students with disabilities may be suspended by the principal for any one of the misbehaviors on the list of prohibited activities in the code of student conduct for up to five days, and the superintendent may extend the suspension for up to five additional days. Idaho Special Education Manual, ch. 12, Section 1.
- If disciplinary action results in a change of placement, the district will notify the parent or adult student of the action with a copy of the Procedural Safeguards Notice, no later than the date on which the decision was made.
- Within ten school days of the decision, the district, and all relevant members of the IEP team (including the parent or adult student) will meet to review all relevant information in the student’s file, in order to determine the cause of the problematic behavior.
- If the behavior is determined to be “a manifestation of his or her disability”: the IEP team will implement a Behavior Intervention Plan (BIP), that can include preventative techniques, teaching replacement behaviors, and crisis management. The student will then be returned to the placement from which he or she was removed. Idaho Special Education Manual, ch. 12, Section 4.
- If the behavior is not found to be a “manifestation of his or her disability”: the student will be subject to the same disciplinary procedures as students without disability, including the possibility of long-term suspension or expulsion. Idaho Special Education Manual, ch. 12, Section 4.C.
- If a decision is made to suspend or expel the student:
- Educational services cannot cease for more than ten school days in the school year.
- The services must continue to be provided to the extent necessary:
(i) to allow the student access to the general education curriculum
(ii) to provide the student with the opportunity to advance towards the goals set out in his or her IEP. Idaho Special Education Manual, ch. 12, Section 5.
- Can parents see the school records of their special education child?
- A parent or adult student, or his or her representative, is entitled to inspect and review any record relating to educational matters that are collected, maintained, or used by the district relating to the student. Idaho Special Education Manual, ch. 11, Section 5.C.
- The records must be available to the parent or adult student for review:
- no later than forty-five days after receiving the request
- before the next meeting regarding an IEP
- before the next resolution session (if any)
- at least five days before any due process hearing (if any)
- The district must also respond to any reasonable request made by the parent or adult student for an explanation and interpretation of the student’s record. Idaho Special Education Manual, ch. 11, Section 5.C.
- Can the special education services be discontinued?
- The district can discontinue special education services if:
- the evaluation team determines the student is no longer eligible for special education services; or
- the student completes the district and state requirements that apply to the receipt of a regular high school diploma; or
- the student completes the semester in which he or she reaches twenty-one years of age.
- The district will provide written notice of the termination of services
- If the termination is based on graduation or aging out, the district will also provide the student with:
- A summary of his or her academic achievements
- recommendations on how to assist the student with meeting post-secondary school goals. Idaho Special Education manual, ch. 1, sec. 6.
- Special Education Resources:
- Idaho Statutes Title 33 Education, Chapter 20 Education of Exceptional Children, available online at the Idaho Legislature website: http://www.legislature.idaho.gov/idstat/Title33/T33CH20SECT33-2010.htm
- Idaho Administrative Procedure Act (IDAPA), available online at: http://adm.idaho.gov/adminrules/rules/idapa08/0204.pdf
- Idaho State Department of Education Division of Student Achievement and School Improvement, Idaho Special Education Manual 2007, (revised 2009), (hereinafter “Idaho Special Education Manual”), available online at: http://www.sde.idaho.gov/site/special_edu/manual_page.htm .
- Idaho Health and Welfare Department, “Idaho Infant Toddler Program eManual,” available online at: http://www.healthandwelfare.idaho.gov/Portals/_Rainbow/Manuals/FACS/ITP_eManual/Idaho_Infant_Toddler_Program_eManual.htm