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- What is Special Education?
Special education programs in Minnesota are governed by both federal and state law. In most instances they are the same or very similar. In some cases, state law may provide more protections than federal law. State law never limits 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).
- Who is eligible for special education?
Children with a qualifying disability who need specialized educational services because of the disability are eligible. Qualifying disabilities include:
- mental retardation;
- hearing impairments (including deafness);
- speech or language impairments;
- visual impairments (including blindness);
- emotional disturbance;
- orthopedic impairment;
- traumatic brain injury;
- other health impairments;
- specific learning disabilities; and
- developmental delay.
20 U.S.C. § 1401(3); 34 C.F.R. § 300.8; Nev. Rev. Stat. § 388.520(4). Children ages 3-18 may be eligible for special education. Students ages 19-22 may be eligible if they have not yet obtained their high school diploma. 34 C.F.R. § 300.102(a)(3); Nev. Rev. Stat. §§ 388.440(3) and 388.490(1) and 388.493(3).
A medical diagnosis for a disability does not always qualify a child for special education. Under Nevada law, a child’s disability must cause him to deviate educationally, physically, socially or emotionally so markedly from normal patterns that he cannot progress effectively in a regular school program and therefore requires special instruction or services. Nev. Rev. Stat. § 388.440(3).
Multiple types of assessments may be used to evaluate whether a child’s condition adversely affects his educational performance. Grades and standardized test scores are only one measure of educational performance. Nevada law also allows for consideration to be given to social, emotional, adaptive and communication skills among others. Nev. Admin. Code §§ 388.345 and 388.346.
A child is not eligible for special education if the determining factor in the child’s exceptional needs is a lack of appropriate instruction in reading, a lack of instruction in math, or limited English proficiency. 20 U.S.C. § 1414(b)(5); 34 C.F.R. § 300.306(b); Nev. Admin. Code § 388.340(6). Nevada law further specifies that a child may be ineligible for special education if his needs are primarily due to environmental, cultural, or economic factors. Nev. Admin. Code § 388.420(1)(c).
- 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 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; and
- conform with an individual education program (IEP).
20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. Special education must be provided in the least restrictive environment (LRE). To the extent appropriate, all students with disabilities should be educated with students who are not disabled. 34 C.F.R. § 300.114. In Nevada, that means a student may be removed from the regular educational environment only if the nature or severity of his disability is such that he cannot be satisfactorily educated in the regular environment. A student may not be removed from the regular classroom solely because she needs modification to the general curriculum. Nev. Admin. Code § 388.245(1).
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 is defined as “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. § 300.38(b)(3). Nevada law adds to the federal requirement by making special education available, in some districts, to students without such a qualifying disability, but whose needs require additional academic and behavioral support in order to succeed in a school program. Nev. Rev. Stat. §§ 388.440(2) and 388.450(3).
An “appropriate” educational program and placement is one which is designed to meet a student’s unique needs in accordance with her IEP and allows her to obtain “educational benefit.” See, e.g., Hendrick Hudson Board of Education v. Rowley, 458 U.S. 176 (1982).
- 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 FAPE, school districts are required to provide “related services”, which allow a student to benefit from his special education program at no cost to the parents, including transportation and supportive services. 34 C.F.R. § 300.34; Nev. Admin. Code § 388.245(2). Nevada’s description of “related services” includes the following:
- Language and speech development and remediation;
- Audiological services;
- Orientation and mobility instruction;
- Psychological services;
- Parent counseling and training;
- Health and nursing services;
- Social worker services;
- Early identification and assessment of disabilities,
- Physical and occupational therapy;
- Counseling services;
- Recreation services; and
- Interpretive services.
34 C.F.R. § 300.34; Nev. Admin. Code § 388.101. Related services do not include surgically implanted medical devices or the optimization of the functioning, maintenance or replacement of such devices. Nev. Admin. Code § 388.101.
- Who Provides Special Education?
The Nevada Department of Education and the local school district are both responsible for ensuring that appropriate special education services are delivered. In Nevada, services are typically provided by the school district, but if the school district fails to ensure services, the Nevada Department of Education is ultimately responsible for providing special education. 20 U.S.C.§§ 1412(a)(11) and 1413(a)(1); 34 C.F.R. § 300.149; Doe v. Maher, 793 F.2d 1470, 1491-92 (9th Cir. 1986). If a school district certifies that a student cannot be appropriately educated within the district and applies for an out-of-district placement, the Nevada Department of Education assumes the primary responsibility of providing and paying for adequate special education. Nev. Op. Att’y Gen. 88-8 (7-15-1988).
- Where should a child receive his 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, 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. § 1412 (a)(5)(A); 34 C.F.R. § 300.114; Nev. Admin. Code § 388.245(1). Specialized education (including related services) can be offered in:
- the mainstream classroom;
- a resource room;
- at home;
- in hospitals; or
- in residential programs.
It is possible that a child’s needs cannot be adequately met in the mainstream classroom even with accommodations and services. In that event, the IEP team may decide that some combination of a specialized learning environment and the general classroom, or a more segregated setting, is necessary to permit that child to benefit from his or her education. When a student is removed from the mainstream classroom, the committee must explain in detail why the removal is necessary. Nev. Admin. Code § 388.245(4). Even then, the student must be allowed to participate with nondisabled students at mealtime, recess, or any other nonacademic or extracurricular activity, unless compelling needs or performance of that student require otherwise. Nev. Admin. Code § 388.245(5).
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
When a school district determines that good causes exists to evaluate a child’s eligibility for special education, it must conduct an initial evaluation to determine eligibility. The school district MUST GET informed, written consent from the parent, then perform the evaluation within 45 school days of receiving the consent. Nev. Admin. Code § 388.337(1). This period may be modified if the school district and the parent agree, or may be unilaterally extended by 10 days at the request of the school district. If a parent refuses to provide written consent, the agency may, but is not required to, request a hearing or mediation. If written consent is ultimately not obtained, the school district does not have any obligation to provide special education and is deemed to have not violated any state or federal laws relating to the same. Nev. Admin. Code § 388.300(1) and (2).
Evaluations or assessments are conducted in all areas of suspected disability and must assess cognitive, behavioral, physical or developmental factors. Nev. Admin. Code §§ 388.340(3) and (4)(b). No one assessment is determinative of eligibility or educational needs. Nev. Admin. Code § 388.340(2). Assessment tools must be valid and conducted by trained and qualified professionals, and be administered so as not to be discriminatory on a racial or cultural basis. Nev. Admin. Code § 388.340(4)(a). Tests must be administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally and functionally. Nev. Admin. Code § 388.340(4)(a)(2).
Parents’ Rights after the Evaluation
Parents are entitled to a copy of all documentation relating to the determination of their child’s eligibility for special education at no cost. Nev. Admin. Code § 388.340(9). If the parent disagrees with the evaluation, the parent may request an independent education evaluation (IEE), which must be considered at the child’s IEP. Nev. Admin. Code § 388.450. The school district must provide an IEE to the parent at no cost unless it chooses to seek a due process hearing to determine whether its own assessment was legally adequate. Nev. Admin. Code § 388.350(1).
Parents also have a right to participate in all meetings relating to the identification, evaluation and educational placement of their child, including all IEP meetings. Nev. Admin. Code § 388.302(1). If a parent disagrees with some aspect of the identification, evaluation or educational placement of their child, the parent may request a due process hearing to resolve that disagreement. Nev. Admin. Code §§ 388.305 and 388.306. It is a violation of federal law for a school district to prevent full parental participation in the development of an IEP by failing to disclose reports concerning medical or psychiatric evaluation. Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877 (9th Cir. 2001).
- 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?
Within 30 days of the determination that a child is eligible for special education, a committee must convene to discuss the child’s IEP. Nev. Admin. Code § 388.281(13)(a). An IEP outlines in writing the educational program for the student. It is developed at a meeting by certain required individuals, including:
- the parent;
- a special education teacher;
- a regular education teacher; and
- a district representative or school administrator.
Other participants may include the school psychologist, therapists, service providers and the child, if appropriate. Nev. Admin. Code § 388.281(2). The committee must meet at least once a year to discuss and develop the IEP. Nev. Admin. Code § 388.281(6).
The IEP must include:
- The student’s present levels of academic achievement and functional performance;
- Measurable annual goals;
- A description of the special education services and modifications that must be provided for the student;
- A description of how the child’s progress toward goals will be measured and reported;
- The extent to which the child will not participate with nondisabled children in regular education classes as well as extracurricular and nonacademic activities;
- Anticipated duration, frequency, and location of services and modifications;
- Type of placement needed to implement the IEP in the least restrictive environment;
- Transition services needed for students 14 years or older; and
- Extended school year services, if needed.
Nev. Admin. Code § 388.284(1).
If a student with an IEP moves from one school district in Nevada to another school district within the state, the new district must provide a FAPE, including services which are comparable to the services described in her previous IEP. Nev. Admin. Code § 388.263(1). Within 30 days of the student’s arrival, the new district must either adopt the existing IEP or develop a new one. Nev. Admin. Code § 388.263(1). If a child moves into Nevada with an IEP from another state, the receiving school must provide that child with a FAPE, including services comparable to those included in her existing IEP until the new school district conducts necessary assessments and develops a new IEP, if appropriate. Nev. Admin. Code § 388.263(2).
- What options do parents have if they disagree with the proposed IEP placement or services? What are the procedures for due process?
Filing a Complaint
If a parent disagrees with or objects to the proposed IEP placement or services, or any other matter relating to the identification, evaluation or educational placement of a child, the parent is entitled to file a due process complaint. Nev. Admin. Code § 388.306(1). In Nevada, these requests are filed with the head of the school district within which the child is receiving education services. Copies must be delivered to (1) the school district and (2) the Department of Education. Within five days of a legally sufficient complaint for due process being filed, the head of the school district must submit a request to the Superintendent of Public Instruction for the State of Nevada for the appointment of an impartial hearing officer. Nev. Admin. Code § 388.306(10).
A complete due process complaint from a parent must include:
- The name of the student;
- The address of the residence of the student;
- The name of the school the student is attending;
- A description of the nature of the problem and facts supporting the parents’ position; and
- A proposed resolution of the problem.
Nev. Admin. Code § 388.306(3). If a complaint fails to meet these requirements, the school district may file a notice of insufficiency within 15 days of receiving the complaint. Nev. Admin. Code § 388.306(4). Within another 5 days, the hearing officer is to make a determination whether the complaint is legally sufficient in light of the above requirements. Nev. Admin. Code § 388.306(5). The parent is allowed to amend the complaint with the permission of the hearing officer or the consent of the school district. Nev. Admin. Code § 388.306(6).
If the school district proposes or refuses action regarding the evaluation or placement of the child (including anything related to the IEP), the school district must provide the parent with prior written notice (PWN). Nev. Admin. Code § 388.300(7). If the district failed to do so, it must answer the parent’s complaint within 10 days of receipt by describing why it refused the parent’s request, the basis for such a refusal, other options considered and reasons for the school district’s action or inaction. Nev. Admin. Code § 388.306(8). If PWN was previously provided to the parent, the district must file a response to the complaint that specifically addresses the issues raised in the complaint. Nev. Admin. Code § 388.306(9).
Informal Resolution Meeting
In Nevada, the parent and school district must participate in an informal resolution meeting unless both parties agree to waive it. Nev. Admin. Code § 388.307(1) and (6). This resolution session must occur within 15 days of the parent’s complaint, and must be completed within 30 days. Nev. Admin. Code § 388.307(1) and (7). The timeframe for completing the due process hearing does not include the informal resolution period. Nev. Admin. Code § 388.307(7). This resolution session includes the parents and school district. While a parent is entitled to bring a lawyer to the resolution meeting, the district may not bring an attorney if the parent does not. Nev. Admin. Code § 388.307(4).
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, but in the event they do not, the agreement is binding and enforceable in state and federal court. Nev. Admin. Code § 388.307(11).
Parents who waive the resolution session may still participate in mediation. Nev. Admin. Code § 388.307(6). A parent may file for mediation only, or in addition to due process. Mediation is a voluntary and confidential process in which a trained, objective facilitator works with both parties to reach an agreement. Mediation is available at any time up until the hearing. There is no three-day period within which consent may be revoked in mediation. Nev. Admin. Code § 388.305. In addition, the time period within which a due process hearing must be held and a decision rendered is not paused during mediation as it is during the resolution session. Nev. Admin. Code § 388.305(2).
Due Process Hearing
A parent has many rights at the hearing:
- The parent must be notified of free or low-cost legal assistance.
- The hearing must be held at a time and place convenient for the parent.
- A child may attend the hearing.
- The parent may request the hearing be open to the public.
- The parent may bring an attorney or advocate.
- Parents may present and cross-examine witnesses and evidence.
Nev. Admin. Code § 388.310. Either party may appeal the decision of the hearing officer within 30 days by having a review officer appointed by the Superintendent of Public Instruction to review the hearing officer’s decision. Nev. Admin. Code § 388.315(1). The review officer’s decision may be appealed by filing a civil action in a court of competent jurisdiction within 90 days after receipt of the review officer’s decision. Nev. Admin. Code § 388.315(3).
“Stay Put” Policy
Once a complaint has been filed, the student is entitled to “stay put.” This means that the placement and services of the child’s last agreed upon IEP remain in effect until the complaint has been resolved. Nev. Admin. Code § 388.306(11). However, both the parent and the school district may agree to a change in placement or services pending the outcome of the hearing. Nev. Admin. Code § 388.306(11). A parent may request an expedited hearing if the hearing is to resolve a dispute concerning whether a behavior is a manifestation of his disability or a dispute concerning a disciplinary change of placement. Nev. Admin. Code § 388.308(1). Similarly, the school district may request an expedited hearing for a determination regarding the placement of a pupil in an appropriate interim alternative educational setting if it determines that the current placement of the child is substantially likely to result in injury to himself or others. Nev. Admin. Code § 388.308(2).
- Can a special education student be disciplined?
Students with disabilities may be suspended for any violations of the student discipline code, even if the misbehavior is a manifestation of the child’s disability. State law defers to federal law for most of the rules governing suspension and expulsion of special education students. Nev. Admin. Code § 388.265(1). Students with disabilities are subject to the same suspension rules as nondisabled students, except that suspensions of students with disabilities cannot exceed 10 consecutive days without a manifestation determination review.
If a suspension exceeds 10 days, there must be a manifestation-determination meeting. 20 U.S.C. § 1415(k)(1)(B); Nev. Admin. Code § 388.265(2). Suspensions for more than 10 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. Certain behaviors warrant exception to this rule, such as where the student is involved with drugs, 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 45 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 10 consecutive school days for misconduct. It must be held within 10 days of the school’s decision to change the student’s placement. The team must consider two issues: 1) was the behavior caused by or substantially related to the child’s disability; and 2) 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 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. § 1415(k)(1)(F); 34 C.F.R. § 300.530(f).
Students with disabilities must continue to receive educational services during any period of suspension beyond 10 days and during any period of interim placement and during any period of expulsion. 20 U.S.C. §§ 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R.§ 300.530(d)(1). The services a child receives under these circumstances must enable him to continue to participate in the general curriculum and to continue to progress toward meeting his IEP goals and to receive needed behavioral assessments and services. 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1)(i)(ii).
- Can a special education student be physically restrained?
Nevada law states that physical restraint to control the injurious or destructive behavior of a child with a disability may only be used if ALL of the following are true:
- An emergency exists which requires the use of physical restraint;
- Restraint is used only for the period of time necessary to contain the behavior and eliminate the immediate threat of physical injury or severe property damage; and
- The use of force does not exceed that which is reasonable and necessary under the circumstances.
Nev. Rev. Stat. § 388.5275(1).
Using Devices to Restrain a Student
The use of any external device to mechanically restrain a student may be used under very narrow circumstances and only when the child’s IEP includes a medical order from his physician authorizing the use of such restraint. Nev. Rev. Stat. § 388.528(1).
Non-complying use of either form of restraint subjects school personnel to disciplinary action. Nev. Rev. Stat. § 388.529. A report must be completed in every instance where restraint is used. Whenever restraint is used three times in one school year, the school in which the student is enrolled must review and report the circumstances under which restraint is used. Nev. Rev. Stat. §§ 388.5275(4) and 388.528(4). If restraint is used five times in the same school year, the child’s IEP must be reviewed and if restraint continues, the IEP must be modified to ensure that restraint does not continue. Nev. Rev. Stat. §§ 388.5275(5) and 388.528(5).
- Can parents see the school records of their special education child?
Yes. A parent is entitled to inspect, review and get a copy of all of a child’s school records. Nev. Rev. Stat. § 329.029; Nev. Admin. Code § 392.345. Most schools maintain separate cumulative files and special education files and parents are entitled to both. Parents are entitled to:
- request an explanation or interpretation of educational records;
- have their representative inspect and review the records; or
- request that the school district provide them with copies of the records.
Nev. Admin. Code § 388.287(2). The school district may charge a fee for copies of records which are made for parents, but the amount of the fee must not effectively prevent the parents from exercising their right to inspect and review those records. No fee may be charged for the search or retrieval of the information. Nev. Admin. Code § 392.287(7).
Parents are entitled to request correction or removal of information the parent believes to be inaccurate, misleading, or a violation of privacy by filing such a request with the superintendent of the school district. Within a “reasonable amount of time,” the school district must either grant or deny the request. Nev. Admin. Code § 388.288(1). If the initial decision is to deny the request, the parent is entitled to a hearing regarding amendment of the information in dispute. If the hearing officer also denies the parent’s request, the parent may still submit an objection in writing to the child’s file. Nev. Admin. Code § 388.288(2).