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- What is special education?
Special education is the provision of an individualized education program created for a child with a disability to allow that child to receive an educational benefit that the child cannot otherwise obtain without these special provisions.
- Who is eligible for special education?
- Under both federal and state law, eligibility for special education and related services depends on the presence of a disability and a need.
- “A child is entitled to receive special education and support and related services if that child requires instruction and/or services which cannot be provided with modification of the regular school curriculum and environment.” IAC Rule 281-41.306(3)(c).
- Under Iowa law, children from ages five to twenty-one years old requiring special education are those who have a disability in obtaining education because of a:
- head injury
- behavioral disorder
- physical, mental. communication, or learning disability (as defined in the Iowa Administrative Rules of Special Education (IAC) Rule 281-41.50). Iowa Administrative Code (Iowa Code) Sec. 256B.2(1)(a) (2011).
- Special education may be extended to persons under twenty-four when approval for an extension of the special education program has been granted. Iowa Code Sec. 256B.8(2).
- A disability is defined as a skills deficiency, a health or physical condition, a functional limitation, or a pattern of behavior that adversely affects educational performance. Individuals with Disabilities Education Improvement Act (IDEA)
- An educational disability results in educational performance that is significantly and consistently different, diminished, or inappropriate when compared to the expectations for peers, and significantly interferes with either:
- access to general education settings and opportunities
- developmental progress
- involvement and progress in the general curriculum
- interpersonal relationships or personal adjustment.
- Under federal law, eligible disabilities include:
- mental retardation;
- hearing impairments (including deafness);
- speech or language impairments;
- visual impairments (including blindness);
- emotionally disturbance;
- orthopedic impairment;
- traumatic brain injury;
- other health impairments;
- specific learning disabilities;
- developmental delay. 20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8.
- The condition or impairment of the child must negatively affect their educational performance to qualify as special education eligibility disability. This means that a child may have a medical diagnosis for a disability that may still not qualify him or her for special education.
- A child is not eligible for special education if the determining factor in the child’s exceptional needs is a lack of instruction in reading, a lack of instruction in math, or limited English proficiency. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b)(1)(i-iii); Iowa Rules of Special Education 41.306(2).
- In Iowa, evaluation teams are also instructed to consider if the determinant factors for the child’s educational performance is primarily related to other variables, including socio-economic status, cultural or ethnic differences, or school attendance or mobility.
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
- Under both federal and Iowa 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 and without charge
- Meet appropriate standards, include preschool through secondary education
- Follow an Individual Education Program or “individualized education plan” (IEP). 20 U.S.C. Sec. 1401(9); 34 C.F.R. Sec. 300.17; IAC Rule 281-41.17.
- The child is entitled to an educational plan designed to meet a student’s unique needs in accordance with his or her IEP and allows him or her to obtain “educational benefit.” Bd. of Educ. v. Rowley, 458 U.S. 176, 198 (1982).
- Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities.
- Specially-designed instruction means to ensure that the content, methodology, or delivery of instruction to address the unique needs of the child and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards that apply to all children. 34 C.F.R. Sec. 300.38(b)(3).
- Under federal law, FAPE must be available to each eligible child in Iowa no later than the child’s third birthday, and an IEP must be in effect for the child by that date (unless the child’s third birthday occurs during the summer, in which case the child’s IEP team will determine the date when services under the IEP will begin). IAC Rule 281-41.101.
- Under Iowa law, the obligation to make FAPE available to all children with qualifying disabilities has a few exceptions for children of certain ages.
- A child aged eighteen to twenty-one, incarcerated in an adult prison, who prior to incarceration had not been identified as a child with a disability and did not have an IEP, is not a child requiring special education.
- Additionally, children with disabilities who have already graduated from high school with a regular high school diploma are likewise excluded for purposes of the FAPE obligation. IAC Rule 281-41.102(1).
- 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 mean transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from his special education program at no cost to the parents. Iowa Admin. Code 281-41.34(1).
In Iowa, related services may include any of the following:
- speech and language development and remediation;
- audiological services;
- interpreting services;
- psychological services;
- physical therapy;
- occupational therapy;
- early identification and assessment of disabilities;
- counseling services;
- rehabilitation counseling;
- orientation and mobility instruction; and
- medical services for diagnostic or evaluation purposes. IAC Rule 281-41.34(2).
- Under Iowa law, “related services” also includes social work services in place at a school, school health and nurse services, and parent counseling and training.
- Some of the services listed above may also be considered supplementary aid and services under IAC Rule 281-41.42 and special education under IAC Rule 281-41.39.
- In Iowa, “related services” does not include a medical device that is surgically implanted, nor optimization, maintenance or replacement of that device. Iowa Admin. Code 281-41.34(2)(a).
However this exception does not prevent the routine checking of an external component of a surgically implanted device to make sure it is functioning properly. Iowa Admin. Code 281-41.34(2)(b).
- Who provides special education?
In Iowa, this responsibility is delegated to both the “area education agency” (AEA) and the “local education agency” (LEA).
Area Education Agency
Local Education Agency
Educational Service Agency
A political subdivision of the state
May be an educational service agency or a local educational agency, or both at the same time.
A public board of education legally constituted to have administrative control or direction of public elementary and secondary schools in a city, county, township, school district or other political subdivision of the state of Iowa.
A public multiservice agency authorized to develop, manage, and provide services or programs to local education agencies (i.e. the local public board of education).
An educational service agency is recognized as an administrative agency for purposes providing special education within public elementary and secondary schools.
- It is the primary responsibility of each school district to provide special education to the children who reside in that district, if the program or services cannot be more economically and equably obtained from the area education agency, another school district, group of school districts, a qualified private agency, or in cooperation with other districts. Iowa Admin. Code sec. 256B.2(4).
- If the school district or other state agency fails to ensure special education services, the Iowa Department of Education is ultimately responsible for ensuring and enforcing the provision of 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; Iowa Code Sec. 256B.2(4) and 256B.4.
- 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 resource room
- at the child’s home
- at a residential program
- However, special education must be provided in a least restrictive environment (LRE) where children with disabilities must be educated with students who are not disabled, among their nondisabled peers.
- However, students with disabilities may be removed from the general educational environment for special classes or separate schooling only when the nature or severity of the disability makes services are insufficient in the general education environment. IAC Rule 281-41.114(2); 34 C.F.R. Sec. 300.114; 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114.
Under Iowa law, a child’s placement must be determined at least annually, based on the child’s IEP and located as close as possible to the child’s home. Unless the IEP of the child requires some other arrangement, the child should be educated in the school that he or she would attend if nondisabled. IAC Rule 281-41.116(2).
If a child with a disability must be placed in an alternative setting based on disciplinary matters, that interim disciplinary placement must be determined by the child’s IEP team. IAC Rule 281-41.116(3).
In the selection of an LRE, Iowa law provides that the decision of a child’s placement must take into consideration any potentially harmful effect on the child or on the quality of services that he or she needs. IAC Rule 281-41.116(2).
- What are the opportunities for parental participation?
- Generally, AEA and LEA personnel must seek parent participation throughout the process, directly communicate with parents and encourage parents to participate at all decision points.
- According to the Iowa Administrative Rules of Special Education, parents must be afforded an opportunity to participate in any formal meeting discussing their child’s evaluation, educational placement, provision of FAPE, or identification. AEA Spec. Ed. Procedures, p. 220.
- Parents must be given notice of the meeting early enough to provide them the opportunity to attend. Local school districts must send parents a completed Meeting Notice form. IAC Rule 281-41.501(2).
- If neither parent can attend an IEP meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls or video conferences. IAC Rule 281-41.328.
- However, the meeting may be conducted without a parent in attendance if the public agency is unable to convince the parent that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed upon time and place for the meeting. IAC Rule 281-41.322(4).
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
- In Iowa, eligibility depends on the presence of both:
- a qualifying disability
- a need of specialized educational services IAC Rule 281-41.306(3)(c).
- A disability under Iowa law is a skills deficit, a health or physical condition, a functional limitation, or a pattern of behavior that adversely affects educational performance.
Need of Specialized Educational Services
A disability results in educational performance that is significantly and consistently different, diminished, or inappropriate when compared to the expectations for peers and significantly interferes with either:
- access to general education settings and opportunities
- developmental progress
- involvement and progress in the general curriculum
- interpersonal relationships or personal adjustment
Need under Iowa law is the conclusion that the individual requires special education and related services in order to receive an appropriate education.
The educational interventions required by the individual to be successful cannot be sustained without special education services.
Iowa Department of Education, Special Education Eligibility Standards, July 2006.
- Either a parent of a child or a public agency (the AEA and/or the LEA) may initiate a request for an initial evaluation to determine if the child is a child with a disability.
- When a public agency suspects a child is a child with a disability, the public agency must seek parental consent for an initial evaluation of that child. IAC Rule 281-41.111(5).
- The public agency will then conduct a full and individual initial evaluation in accordance with IAC Rules 281-41.305 and 41.306.
- The initial evaluation will be to determine the presence of a disability and the educational interventions that are required to resolve the presenting problem, behaviors, or suspected disability within sixty calendar days of the parental consent for the evaluation. IAC Rule 281-41.301. See Iowa Area Ed. Agencies, Area Education Agency Special Education Procedures (2010) (AEA Spec. Ed. Procedures) for additional details on the content and form of the evaluation process.
- The eligibility decisions are made by the individualized education program team and other qualified professionals, when appropriate.
- The eligibility determination team asks and answers two questions:
- Does the child’s academic, behavioral, physical, health or sensory performance level adversely affect educational performance
- Does the child need/require special education services and related services?
- When the answer to both questions is “yes” then the child is eligible for special education and related services. AEA Spec. Ed. Procedures.
- 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 is a comprehensive written statement developed jointly by the child’s parents and the school district, which outlines the child’s special educational needs and the specially designed instruction and services to be provided by the school system. 20 U.S.C. Sec. 1414(d).
The IEP team meetings must include
The child’s IEP must include:
- parents of the individual;
- at least one general education teacher;
- at least one special education teacher or if appropriate, at least one special education provider of the eligible individual;
- a representative of the LEA who is qualified to provide or supervise the provision of specially designed instruction, and who is knowledgeable about general education curriculum and the availability of the resources of the LEA;
- an individual who can interpret the instructional implications of the evaluation results;
- other individuals with knowledge or special expertise regarding the eligible individual, as appropriate (such as the school psychologist, therapists), at the discretion of the parent or the agency; and
- the child being considered for eligibility, as appropriate.
IAC Rule 281-41.321.
- the student’s present levels of educational performance;
- how the child’s disability affects the child’s involvement and progress in the general education curriculum measurable annual goals, including academic and functional goals;
- a description of how the child’s progress toward goals will be measured and when it will be reported;
- a description of benchmarks or short-term objectives for children with disabilities who take alternate assessments aligned to alternate academic achievement standards;
- specific special education and related services and supplementary aids and services to be provided;
- explanation of the extent to which the child will not participate with nondisabled children in the class and in extracurricular and other nonacademic activities;
- anticipated duration, frequency, and location of services and modifications;
- modifications for state or district-wide assessments, and an explanation as to why the child must take an alternate assessment instead of a particular regular state or district-wide assessment of student achievement if the IEP team has determined that route for the child.
IAC Rule 281-41.320(a)-(h).
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
- When a parent believes that an AEA or district has violated State rules applicable to the provision of special education the parent may file a written complaint with the Iowa Department of Education.
- The written complaint must include:
- a statement that a public agency has violated Part B of the IDEA or the IAC Chapter 41;
- facts on which the statement is based;
- signature and contact information for the complainant;
- if allegations with regard to a child, then that child’s name and school;
- a description of the nature of the problem of the child, including the facts related to the problem; and
- a proposed resolution of the problem, to the extent known and available to the party at the time. IAC Rule 281-41.153(2).
- Within sixty days of receiving the complaint, the State will:
- conduct an independent on-site investigation if it determines an investigation is necessary;
- provide the complainant an opportunity to submit additional information;
- provide the public agency responsible for the services complained of an opportunity to respond, including an opportunity to propose a resolution or an opportunity for the complainant to voluntarily engage in mediation.
- In resolving the complaint, the state must address the failure to provide appropriate services, including corrective action appropriate to address the needs of the child, such as compensatory services or monetary reimbursement, as well as the appropriate future provision of services for all children with disabilities. IAC Rule 28141-151(2).
The following websites provide additional forms and information regarding relating to complaint procedures:
- 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?
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?
- 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 due process.
- The first option, however, is to attempt to resolve this disagreement through means less formal than a fair hearing.
- Direct Negotiation Among the Persons with the Disagreement
- AEA Resolution Facilitator Process
- Preappeal Conference
- Written Complaint with Iowa Department of Education (outlined above)
- File for Due Process Hearing
- Resolution Meeting
- Mediation Following Setting a Hearing
- Iowa State Court or Federal Court
- Iowa Supreme Court or Supreme Court of the United States AEA Spec. Ed. Procedures, p. 233.
- When the disagreement with the LEA or AEA is not resolved in the informal attempts at resolution, then a parent may file a due process complaint for an impartial due process hearing.
- The parents must be informed of any free or low cost legal and other relevant services available in the area. IAC Rule 281-41.507(2).
- The form for the due process complaint can be found in the Procedural Safeguards Manual for Parents Rights.
- Due process complaints may be filed on any matters relating to:
- the identification, evaluation or educational placement of a child with a disability
- the provision of FAPE to the child.
- The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. IAC Rule 281-41.507(1).
- This two-year rule, however, does not apply if specific misrepresentations by the LEA or AEA that it had resolved the problem forming the basis of the due process complaint occurred, or if the LEA or AEA withheld information from the parent that was required to be provided to the parent. IAC Rule 281-41.511(6).
- The due process hearing request must include:
- the name and address of the residence of the child;
- the school the child attends;
- a description of the nature of the problem of the child and how this relates to the proposed or refused initiation or change,
- a proposed resolution of the problem.IAC Rule 281-41.508(2).
- When a parent requests a hearing, the LEA or AEA is required to send a response, within ten days, addressing the issues raised in the hearing request if not included in the previous prior written notice required by the circumstances. IAC Rule 281-41.508(5).
- The LEA or AEA is also required to offer a resolution meeting with parents and members of the IEP team who have specific knowledge of the facts identified in the due process complaint. This must be done within fifteen days of receiving the hearing notice. IAC Rule 281-41.510(1).
- If the issue is not resolved within another fifteen days by means of the resolution meeting, or if the parties have waived the meeting, a due process hearing may occur. If a resolution is made through the meeting, then the parties must execute a legally binding agreement that is enforceable in any state court or US district court or by the department. IAC Rule 281-41.510(4).
- If the parent has not participated in the resolution meeting efforts of the LEA, then the timeline may be extended or the LEA may request that the independent administrative law judge (ALJ) dismiss the due process complaint. IAC Rule 281-41.510(2). Likewise, if the LEA does not initiate the meeting, then the ALJ may be called to intervene.
- The hearing, presided over by an ALJ (usually within forty-five days of the end of the thirty day resolution period) results in a decision that is final. Any party may appeal the final decision by bringing a civil action in state or federal court. IAC Rule 281-41.514 and 41-516.
- What is the Procedural Safeguards Manual for parents and when should it be distributed to parents?
What is the Procedural Safeguards Manual for parents and when should it be distributed to parents?
- The Procedural Safeguards Manual for Parents is a manual to guide parents on their rights in connection with their child with a disability.
- The Manual must be given to parents one time each school year.
- Specific instances in which a copy of the manual also must be given to parents are as follows:
- upon initial referral or parental request for evaluation;
- upon the first occurrence of the filing of a state complaint or the first due process complaint in a school year;
- on the date that a decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct. IAC Rule 281-41.530(8); and
- upon request by a parent. IAC Rule 281-41.504(1).
- Can a special education student be disciplined?
Can a special education student be disciplined?
- In general, students with IEPs are subject to the same code of conduct provisions as students without IEPs. Students with disabilities are generally subject to the same suspension rules as nondisabled students.
- However, discipline for students with IEPs may be different when
- an IEP outlines a method for responding to a student’s behavior that are different than the code of conduct
- when the disciplinary action is a removal that constitutes a change in placement. In these instances, the federal law will determine the disciplinary procedures
- Federal law allows for up to ten consecutive days of suspension of special education students without any requirement of a manifestation determination, but for suspensions in excess of tem days, there must be a manifestation-determination meeting. 20 U.S.C. Sec. 1415(k)(1)(B).
- 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.
- Suspensions for more than ten consecutive school days and expulsions are considered “changes of placement,” and schools cannot change special education students’ placements without parental consent, or without a manifestation determination meeting. IAC Rule 41-281-41.536(1).
- A manifestation determination meeting must be held within ten days of the school’s decision to expel the student or change his placement. IAC Rule 41.530(5).
- The team must consider two issues:
- Was the behavior caused by, or did it have a direct and substantial relationship to, the child’s disability
- 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 behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior.
- If the IEP team denies that the behavior is a manifestation of the child’s disability, and the parent disagrees with any decision related to placement or the manifestation determination, then the parent may appeal by requesting a due process hearing.
- An LEA that believes that maintaining the current placement of the student is substantially likely to result in injury to that student or to others may also make an appeal. IAC Rule 281-41.532-41.534.
- The appeal should be resolved within thirty days. IAC Rule 281-41-532(3). 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).
- The ten-day “change in placement” limitation does not apply to disciplinary action taken under three special circumstances. The three circumstances are if, while on school premises or at school functions, the student:
- carries or possess a weapon;
- possesses, uses, sells or solicits the sale of illegal drugs or controlled substances;
- inflicts serious bodily injury upon another person. 20 U.S.C. Sec 1415(k)(1)(G); IAC Rule 41.530(7).
- Following the federal law, Iowa law specifies that under these circumstances, a student with a disability may be removed to an interim alternative education setting for up to forty-five school days.
- In such circumstances, a manifestation determination will still be conducted, but the district may place the student with a disability in an interim alternative setting for up to forty-five days, regardless of the meeting’s outcome. 20 U.S.C. Sec. 1415(k); IAC Rule 41.530(7).
- While situated at an interim alternative education setting, students with disabilities must continue to receive educational services during any period of suspension beyond ten days and during any period of interim placement and during any period of expulsion. 20 U.S.C. Sec. 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1); IAC Rule 281-41.530(4).
- What records are kept for disciplinary actions taken against a child with a disability?
What records are kept for disciplinary actions taken against a child with a disability?
- A school district, an AEA or an accredited nonpublic school must include in the records of a child with a disability:
- A statement of any current or previous disciplinary action. Iowa Code Sec. 279.9A
- Accurate record of any suspension or expulsion actions taken and the basis for those actions taken and any other relevant information.
- If a child transfers from one school to another, the transmission of any of the child’s records must include both the child’s current IEP and any statement of current or previous disciplinary action that has been taken against the child. IAC Rule 281-41.229.
- Can parents see the school records of their special education child?
Can parents see the school records of their special education child?
- School districts and AEAs are legally mandated to create and maintain records for students eligible to receive special education services.
- A parent is entitled to inspect, review and get a copy of all of a child’s school records at most forty-five days after the request was made without unnecessary delay, and before any meeting regarding an IEP, or any hearing, or resolution session. IAC Rule 281-41.613(1).
- School districts and AEAs must provide the parents of students receiving special education, upon request, a list of the types and locations of education records collected, maintained and used by the district or agency for their child, not just the special education records. IAC Rule 281-41.616.
- Student records include any document which contains personally identifiable information and which is shared with another person.
- The public agency responsible for the child’s IEP must give the parent a copy of the child’s IEP, and at no cost to the parent. IAC Rule 281-41.322(6).