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- What is Special Education?
Special education in Louisiana is led by both federal and state law. See La. Stat. Ann. § 17:1943 (2014) (saying that the State Board of Elementary Education should put into effect rules, regulations, and policies needed to administer the Act and to implement the Individuals with Disabilities Education Act of 2004 (IDEA), 20 U.S.C. § 1400(d) (2012)). Under both federal and state law, state and local educational agencies have a job to give each student with a disability or exceptionality a free appropriate public education (FAPE) in the least restrictive environment, which includes special education and related services. Id.; La. Stat. Ann. § 17:1941; La. Admin. Code tit. 28, § 331 (2015).Special education is defined as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including:
(i) instruction in the classroom, in the home, in hospitals and institutions, and in other settings;
(ii) instruction in physical education”;
(iii) speech-language pathology services;
(iv) travel training; and
(v) vocational education.
20 U.S.C. § 1401(29); La. Admin. Code tit. 28, § 905.
Specially designed instruction means content, methods, or delivery of instructions are created to be helpful to the needs of an eligible student by:
(i) addressing the unique needs of the student based on the student’s disability; and
(ii) making sure the student has access to the general curriculum, so that the student can meet the educational standards the state or district has set for all students.
La. Admin. Code tit. 28, § 905.
- Who provides special education?
Under Louisiana law, it is the job of the Louisiana state and local educational agencies to provide special education. La. Stat. Ann. § 17:1941.
- A “local educational agency” (LEA) means “a public board of education or other public authority legally created within Louisiana for administrative control and direction of or to perform a service function for public elementary or secondary schools in a city, parish, or other local public school district or other political subdivision. The term includes an education service agency and special schools and school districts . . . and any other public institution or agency having administrative control and direction of a public elementary or secondary school.” Stat. Ann. § 17:1942.
- An “education service agency” means “a regional public multiservice administrative agency given permission by state law to create, manage, and provide services or programs to local education agencies and includes any other public institution or agency having administrative control and direction over a public elementary or secondary school.” Stat. Ann. § 17:1942.
For students with a hearing or visual impairment, schools should give parents information about all placement options, including the Louisiana School for the Deaf and the Louisiana School for the Visually Impaired. La. Admin. Code. tit. 28, § 116(A)(6).
- Who is eligible for special education?
Under Louisiana law, every “student with an exceptionality” between ages three and twenty-one, who is a resident of Louisiana, is eligible for special education. La. Stat. Ann. § 17:1941.
A “student with an exceptionality” includes a child with a disability and is defined as a student who has been evaluated and is found to have an eligible disability under the standards set by state or federal rules, who needs special education or related services. La. Stat. Ann. § 17:1942(B). Eligible disabilities include:
- Mental/intellectual disability;
- Hearing impairment (including deafness);
- Multiple disabilities;
- Visual impairment (including blindness);
- Speech or language impairment;
- Other health impairment;
- Specific learning disability;
- Emotional disturbance;
- Orthopedic impairment;
- Traumatic brain injury;
- Gifted and talented; and
- Developmental delay (ages three to eight).
20 U.S.C. § 1401(3); La. Stat. Ann. § 17:1942(B); La. Admin. Code tit. 28, § 1501(A).
To be considered a resident, a student must meet one of the following conditions:
- The student lives in the district of the local education agency where the parent(s) or legal guardian(s) have their legal home;
- If the student’s parents are divorced, the student is a resident of the local education agency where his/her caretaker or legal parent(s) has their legal residence; or
- If the student is in foster care, the student’s residency depends on which parent(s) the student last lived with.
La. Stat. Ann. § 17:1942(E).
- Once a child is identified as being eligible for special education, what are the next steps? What is a “free appropriate public education”?
A child eligible for special education has the right to receive a free, appropriate public education (“FAPE”), which means specially-designed instructions and related services that meet appropriate standards, are given free of charge, include preschool through secondary education, and follow the guidelines created by an individualized education program (IEP). 20 U.S.C. § 1401(9); 34 C.F.R. §§ 300.17, .39.
- What is an “IEP” (Individualized Education Program)?
An IEP can be created only with the parent(s) or the legal guardian’s written permission. LA. ADMIN. CODE tit. 28, § 331. An IEP is a written statement that is created, reviewed, and revised in a meeting about the student’s specially designed learning environment, which includes:
• A statement about the child’s current level of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum; or, for preschool children, how the disability affects the child’s participation in activities;
• A statement of measurable yearly goals, including academic and functional goals, created to help the student to make progress in the general education curriculum or other educational activities. For children who take alternate assessments, the IEP should include a description of benchmarks or short-term goals;
• A description of the adopted measurement of the child’s progress;
• A statement of the special education, related services and supplementary aids and services that are appropriate and useful for the child;
• An explanation of situations where the student will not participate in the regular class, in extracurricular, and other nonacademic activities, with nondisabled children;
• A statement of any individualized that are needed to measure the academic achievement and functional performance of the child on State and district-wide assessments and, if the child must take an alternate assessment, an explanation of why the child cannot participate in regular assessments as well as why the given alternate assessment that has been selected is appropriate for the child;
• The planned date for the beginning of the services and changes and the expected number of times the services happen, location, and length of the services and changes;
320 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.320(a).
- What is the parent’s role in the IEP?
The IEP is created by an IEP team made up of the student’s parent(s); at least one regular education teacher of the child; at least one special education teacher of the child; a representative of the LEA; an individual who can interpret the assessments; and other individuals who have special knowledge or skill. 34 C.F.R. § 300.321.
- Along with a free appropriate public education, are there other services a child with a disability is eligible to get? What are “related services”?
The term “related services” may include:
• Speech-language pathology;
• Audiology services;
• Interpreting services;
• Psychological services;
• Physical and occupational therapy;
• Recreation, including therapeutic activities;
• Social work services;
• School nurse services designed in the child’s IEP program;
• Counseling services (including rehabilitation counseling);
• Orientation and mobility services;
• Medical services (for diagnostic and evaluation purposes only);
• Early identification and assessment of disabling conditions in the student;
• Parental counseling and training.
20 U.S.C. § 1401(26); LA. ADMIN. CODE tit. 28, § 1501(A).
- Where should a child get his/her special education and related services? What is a “least restrictive environment”?
Special education must be provided to all exceptional students in a “least restrictive environment.” LA. STAT. ANN. § 17:1941; LA. ADMIN. CODE tit. 28, § 331. A school must provide programs and activities to exceptional students in the most appropriate integrated setting. When doing this, the school must make sure that the program is available within existing facilities. The school is allowed to change existing facilities or to make nonstructural changes, such as:
• Redesign of equipment;
• Assignment of communication aids;
• Reassignment of classes and other services to accessible buildings;
• Assignment of aides to children;
• Home visits; and
• Delivery of health, welfare, or other social services at other accessible sites.
LA. ADMIN. CODE tit. 28, § 1505.
To the largest extent possible, children with disabilities must be educated with their non-disabled peers. 20 U.S.C. § 1412(a)(5)(A); LA. ADMIN. CODE. tit. 28, § 114(A)(2).
• Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that changes, supplementary aids, and services in regular classes are not enough to allow the student to achieve educational goals acceptably. 20 U.S.C. § 1412(a)(5)(A).
• Students cannot be removed from the regular educational environment only because of a needed change in the general education curriculum. LA. ADMIN. CODE. tit. 28, pt. XLIII, § 116(A)(5).
The LEA cannot select a more restrictive environment because of the state’s funding mechanisms. 20 U.S.C. § 1412(a)(5)(B); LA. ADMIN. CODE. tit. 28, § 114(B)(1).
- What if a parent believes the school district is not doing its job (such as failing to put into place a valid IEP) or disagrees with the proposed IEP placement or services?
If a parent believes the school district is not doing its job by failing to put into place a valid IEP, one option is mediation. LA. ADMIN. CODE tit. 28, § 506. The Louisiana Department of Education must make sure that the mediation process is voluntary; not used to deny or delay the right to a due process hearing or to deny other rights given by the IDEA; and that the mediation is led by a qualified and impartial mediator. LA. ADMIN. CODE. tit. 28, § 506.
A parent or public agency also has the right to file a request for an impartial due process hearing. LA. STAT. ANN. § 17:1946; LA. ADMIN. CODE. tit. 28, § 507. The request must be made within one year of the date that the parent or agency knew or should have known about the alleged action that forms the complaint, unless the LEA misrepresented or hid important information from the parents. LA. STAT. ANN. § 17:1946; LA. ADMIN. CODE. tit. 28, § 507.
The procedures for requesting a due process hearing are as follows:
• Send the other party a written request for a due process hearing;
• Forward a copy of the request to the Department of Education, who will forward it to the other party;
• Within two business days of receipt, the Department of Education must pass on the request to the Division of Administrative Law, who will label the request and assign a hearing officer.
LA. ADMIN. CODE tit. 28, § 508(A).
The written request must have: (1) the student’s name; (2) the address of the student’s home; (3) the name of the student’s school; (4) a description of the problem, including relevant facts; and (5) a proposed solution of the problem. LA. ADMIN. CODE tit. 28, Part XLIII, § 508(B).
The request for a due process hearing will be considered as enough unless the receiving party tells the hearing officer within fifteen days that the request does not meet all the requirements, in which case the hearing officer will make a decision within five days after this notice. LA. ADMIN. CODE tit. 28, § 508(D). If the complaint is found insufficient, it may be changed by the requesting parent if the other party gives written permission or if the hearing officer allows such change; otherwise, the request will be dismissed. LA. ADMIN. CODE tit. 28, Part XLIII, §§ 508(D)-(E).
If the complaint is found sufficient, the LEA will organize a resolution meeting with the parent and the relevant member(s) of the IEP team within fifteen days in order to solve the dispute before the hearing. If the parent and the school cannot reach an agreement within thirty days, the due process hearing can happen. LA. ADMIN. CODE. tit. 28, § 510.
- Can a special education student be disciplined?
Yes. A child with a disability can be suspended up to 10 days in a row, or 10 total days in a school year if the violation of the school code of student conduct is not caused by the student’s disability. Within the same 10 days, the IEP team must get involved and decide if the violation was caused by the child’s disability by reviewing the student’s file, including the IEP, teacher observations, and any relevant information. 20 U.S.C. § 1415(k); 34 C.F.R § 300.530(e). School staff may consider unique situations on a case-by-case basis when deciding if suspension is appropriate. LA. ADMIN. CODE. tit. 28, § 530.
• If the team decides it is a shortage in the program, the LEA will take steps to address the problems.
• If the team decides the conduct was caused by the child’s disability, the IEP team can decide to conduct a functional behavioral assessment, review a previously created intervention plan and change it as needed, or return the child to her placement.
• However, if the behavior that gave rise to the violation is decided not to be a manifestation of the student’s disability, school staff may apply the same disciplinary procedures as would be applied to students without disabilities. Id.
During this time, the public agency must give educational services to make sure the student continues to participate in the general education curriculum, to progress toward meeting the goals set out in the IEP, and to receive behavioral intervention services and changes, that are created to address the behavior violation so that it does not happen again. 34 C.F.R § 300.530; 20 U.S.C. § 1415(k); LA. ADMIN. CODE. tit. 28, § 1313.
- Can parents see the school records of their special education child?
The parents of a student with a disability should have access to all education records that relate to: (1) the identification, evaluation, and educational placement of the student; and (2) the provision of a FAPE to the student. LA. ADMIN. CODE tit. 28, § 502.
The agency must give relevant information before any IEP meeting, hearing or resolution session, and comply with a request for records without needless delay (allowing a maximum delay of 45 days after the parent making the request). LA. ADMIN. CODE. tit. 28, pt. XLIII, § 613. The right to review and see records includes the right to:
• A response to a fair request for explanation or interpretation of records;
• Request copies of the records if the parent would otherwise be stopped from seeing and reviewing the records; and
• Have a representative see and review the records.
LA. ADMIN. CODE. tit. 28, pt. XLIII, § 613.
- Do charter schools have to follow special education laws?
Yes. In Louisiana, “charter schools” are independent public schools that provide elementary and/or secondary school education under Louisiana charter school law. LA. ADMIN. CODE. tit. 28, pt. § 103.
Charter schools must follow all federal disability laws. See generally 34 C.F.R. § 300.209. Charter schools must give all students a FAPE, including students with disabilities. See 34 C.F.R. §§ 300.101, .209. To be specific:
• Both federal and Louisiana law prohibit charter schools from denying enrollment to a student on the basis of his or her disability. LA. ADMIN. CODE. tit. 28, § 2705; see generally 34 C.F.R. § 300.101.
• Charter schools must give all special education and related services that have been decided to be needed by a special education evaluation and/or IEP. La. Dep’t of Educ., Parent Q&A for Charter Schools (Oct. 9, 2008), http://lacharterschools.org/_/dl/charter_disability.pdf (last visited Sept 21, 2015).
• Each charter school must have a complaint procedure to allow parents, guardians, or other individual or groups to appeal to the nonprofit board of directors to address any problems that they seek to solve. The complaint procedure must include any forms that must be completed by the person filing the complaint, a description of the complaint process, and the timeline for consideration and action in response to the complaint. LA. ADMIN. CODE. tit. 28, § 3301.
- More information
La. Dep’t of Educ., Charter School Performance Compact: ADA Requirements (Mar. 4, 2013), http://www.louisianabelieves.com/docs/school-choice/faq—ada-requirements.pdf?sfvrsn=2 (last visited Sept. 21, 2015).
La. Dep’t of Educ., Louisiana’s Educational Rights of Children with Disabilities (Sept. 2013), http://www.louisianabelieves.com/docs/academics/louisiana’s-educational-rights-of-children-with-disabilities.pdf?sfvrsn=10 (last visited Sept 21, 2015).