Special education is instruction specially designed, “at no cost to the parents, to meet the unique needs of a child with a disability….” 20 U.S.C. § 1401(29); North Carolina Policies Governing Services for Children with Disabilities-Amended June, 2010 (referenced below as “NC”) 1500-2.34.  S

 Special education programs in North Carolina 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).  See 20 U.S.C. § 1400 et seq.; NC 1500 et seq.

Children with a qualifying disability are entitled to receive special education and related services. Eligible disabilities include:

• mental retardation;
• hearing impairments (including deafness);
• speech or language impairments;
• visual impairments (including blindness);
• a serious emotionally disturbance;
• orthopedic impairment;
• autism;
• traumatic brain injury;
• other health impairments;
• specific learning disabilities; and
• developmental delay (only applies for delays arising from ages 3 to 9 or any subset thereof). 

20 U.S.C. § 1401(3); 34 C.F.R. § 300.8; N.C. Gen. Stat. § 115C-106.3(2); NC 1500-2.4(b).  Children may be eligible for special education between the ages of three and eighteen years of age, or until twenty two years of age, if they have not yet completed their high school education.  34 C.F.R. § 300.101; N.C. Gen. Stat. § 115C-107.1

A child’s eligibility for special education services is determined by an evaluation that may be initiated by the child’s parent(s), school representatives, or both.  This request, known as a “referral”, (i) must be made in writing and (ii) must state the reasons supporting the referral, including concerns giving rise to the request and the child’s individual strengths and weaknesses. 

For children already enrolled in school, the referral may be given to the child’s teacher or the school principal.  For pre-school children or children of school age not enrolled in public education, the referral may be directed to local school officials responsible for services to children with disabilities.  NC 1503-2.1.  As a general rule, services for children younger than three years of age are administrated though the North Carolina Children’s Developmental Services Agency.

Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).  FAPE means special education and related services that:

• are provided at public expense under public supervision and direction;
• are without charge to parents;
• meet appropriate standards, include preschool through secondary education; and
• conform with an Individualized 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.

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 “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); NC 1500-2.34(b)(3).  

In addition to being required to provide a free appropriate public education, school districts are required to provide “related services,” at no cost to parents, sufficient to allow a student to benefit from his or her special education program.  20 U.S.C. § 1401(26); 34 C.F.R. § 300.34; N.C. Gen. Stat. § 115C-106.3(3a) and (18); NC 1500-2.28 and NC 1501-1.1.  Related services may include any of the following:

Audiological services;

• Counseling and guidance services;
• Early identification and assessment of disabilities;
• Interpreting services;
• Medical services;
• Occupational therapy;
• Orientation and mobility services (for children with vision impairments);
• Parent counseling and training;
• Physical therapy;
• Psychological services;
• Recreation services;
• Rehabilitation training and counseling;
• School health and nursing services;
• Social work supporting services;
• Speech-language pathology services; and
• Transportation services.

NC 1500-2.

A child’s eligibility for services and the specific services needed to provide the child with a free appropriate public education are initially determined at the first evaluation of whether the child is a child with a disability.  NC 1503-2.7.  The services provided may be modified at subsequent reevaluations or in conjunction with development of the child’s Individualized Education Plan (IEP).  NC 1503-2.4 and NC 1503-4.1 to 5.1.

The North Carolina State Board of Education and local educational agencies (LEAs) are each responsible for ensuring that appropriate special education services are delivered.  Services are typically provided by the local school district, but may also be provided by state-authorized charter schools, or by other public agencies.  If the school district fails to ensure services, the North Carolina State Board of Education is ultimately responsible for ensuring the appropriate provision of special education services.  20 U.S.C. § 1413(a)(1); 20 U.S.C. § 1412(a)(11); 34 C.F.R. § 300.149; N.C. Gen. Stat. §§ 115C-107.7 and 115C-108.1.  

Special education must be provided in a least restrictive environment.  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 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; N.C. Gen. Stat. § 115C-106.3(10); NC 1500-2.21.  Specialized education, including related services, can be offered:

• in a mainstream classroom;
• in a resource room;
• at home;
• in hospitals; or
• in residential programs.  

A request for a child to be evaluated for possible disabilities (a “referral”) initiates an evaluation process.  Evaluations or assessments are conducted by a multidisciplinary team in all areas of suspected disability.  Depending on a child’s needs, this may include an assessment of health, development, vision, hearing, motor ability, speech and language, academic performance, cognitive ability, self-help, mobility, career or vocational interest, communication and social or emotional status.  No one assessment is determinative of eligibility or educational needs.  Assessment tools must be valid and given by trained and qualified professionals.  Tests must also be administered in the child’s primary language.  NC 1503-2.5.  Parents are entitled to receive copies of all assessments.  NC 1504-2.1

The local educational agency (LEA) must complete the process of evaluation, development of an IEP for children deemed eligible for services, and placement of those services within 90 days after the receipt of a written referral.  NC 1503-2.2.  If the LEA determines that the child is ineligible, or if a parent disagrees with other aspects of the evaluation, parents have the right to obtain, at public expense, an independent educational evaluation of their child.  NC 1504-1.3.  If an independent evaluation is conducted at public expense, or if an evaluation conducted at the parents’ expense (consistent with agency criteria) is brought to the attention of the LEA, the LEA must consider these results when determining the child’s eligibility.  NC 1504-1.3(c).

If the LEA, after its initial evaluation and after considering any independent or parent-funded evaluations, persists in denying eligibility, the parent(s) may file a request (a “petition for due process” or “petition”) with the State Educational Agency (the SEA in this instance is the North Carolina Department of Public Instruction).  Within 15 days after receiving a copy of a petition, the LEA must meet with the parent(s) to consider the reasons for their petition.  NC 1504-1.1(a).  If the LEA continues to deny eligibility or fails to respond with 30 days after receiving the petition, a due process hearing may convene.  NC 1504-1-1(b).  Under most circumstances, the hearing officer must convene a hearing and render a final decision on the petition within 75 days after the LEA receives the petition.  NC 1504-1.16.

Parents and the LEA also have access to a mediation process to resolve disputes.  The mediation process may be initiated by the parent or the LEA.  Mediation may be pursued whether or not a due process petition has been filed.  The State is responsible for paying all expenses for mediation and for selecting a competent and independent mediator to meet with the parties.  If “due process” proceedings have begun, the mediation would occur after the initial meeting between the parent and the LEA and before the due process hearing.  NC 1504-1.7.  A pending mediation does not change the timelines for resolution of the due process proceedings unless all the parties agree, in writing, to the change.  NC 1504-1.11(c).

Once it is determined that a child is eligible for special education, an Individualized Education Plan (frequently referred to as 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 an IEP team.

The IEP team must include:

• 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.  NC 1503-5.

The IEP must include:

• The student’s present levels of educational performance;
• Measurable annual goals;
• A description of how the child’s progress toward goals will be measured and reported;
• Specific special education services;
• Extent to which the child will not participate with nondisabled child in regular education classes as well as extracurricular and nonacademic activities;
• Anticipated duration, frequency, and location of services and modifications;
• Modifications for state or district-wide assessments and notice of requirements; and
• Transition services needed for students 16 years or older.

20 U.S.C. § 1414(d); NC 1503-4.1.

Schools are required to give parents prior notice of any evaluation or re-evaluation for eligibility for services, as well as for all IEP meetings.  NC 1504-1.4.  Typically, a parent must give consent for all evaluations and re-evaluations. NC 1503-1(a) and (c).  However, if the State can demonstrate due diligence in giving notice to parents and in attempting to secure their consent for an evaluation, the State may, but is not required to, conduct the evaluation without consent.  NC 1503-1(a)(3). 

Similarly, parents have a right to participate in all IEP meetings.  NC 1503-4.3.  However, if the State is unable to persuade parents to participate in an IEP meeting, it may proceed without parental participation.  NC 1504-4.3(d). 

Whether or not parents consent to evaluations or participate in IEP meetings, they have a right to receive copies of all reports generated in such proceedings.  NC 1503-4.2(e) and 1504.1.2.

If a student with an IEP moves from one school district to another within North Carolina, the receiving district must either adopt the existing IEP or develop a new one.  NC 1503-4.4(e).  If a child moves into North Carolina with an IEP from another state, the receiving school must provide that child with FAPE including services comparable to those included in his or her existing IEP until the receiving district conducts necessary assessments and implements and new IEP.  NC 1503-4.4(f).

If a parent believes the district has failed to implement a valid IEP, has failed to follow special education law, or is discriminating against a student or a group of students, the parent may file a complaint directly with the North Carolina Department of Public Instruction.  The NCPDI will investigate and will issue a decision regarding non-compliance within 60 days.  34 C.F.R. § 300.151 et seq; NC 1501-10.

Petition 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’s due process rights are the same as those arising from an evaluation for eligibility.  The parents may file a request (a “petition for due process” or “petition”) with the State Educational Agency (the SEA in this instance is the North Carolina Department of Public Instruction). 

Within 15 days after receiving a copy of a petition, the LEA must meet with the parents to consider the reasons for their petition.  NC 1504-1.1(a).  If the LEA continues to reject the parents’ proposed IEP changes or fails to respond with 30 days after receiving the petition, a due process hearing may convene.  NC 1504-1-1(b). 

Under most circumstances, the hearing officer must convene a due process hearing and render a final decision on the petition within 75 days after the LEA receives the petition.  NC 1504-1.16.

Due Process Hearing

Parents have significant rights in due process hearings. 

• The parents may be represented by counsel of their choice, and may be accompanied by and consult individuals whom the parents believe have special knowledge or expertise in special education laws and can assist them in the presentation of their claims.  NC 1504-1.13(a).
• The hearing must be held at a time and place convenient for the parent.  NC 1504-1.16(d). 
• A parent may request a continuance for good cause.  NC 1504-1.16(c). 
• A child may attend the hearing, and the parent may request that the hearing be closed or opened to the public.  NC 1504-1.13(c).
•  The hearing must be fair, meaning the hearing officer must be impartial.  NC 1504-1.12(c).
•  Parents may present witnesses and evidence and may cross-examine witnesses and evidence presented by the LEA.  NC 1504-1.14(a). 
• No party may introduce evidence at a hearing that has not been provided to the other party at least five days prior to the hearing.  NC 1504-1.13(a).

“Stay Put” Policy

Once the due process petition is served, 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 petition has been resolved.  NC 1504-1.19(a).  However, the parent and the LEA district may agree to a change in placement or services pending the outcome of the hearing.  NC 1504-1.19(a).

School personnel may, but are not required to, consider the nature of the student’s disabilities when deciding on appropriate discipline for a student violating applicable codes of student conduct.  NC 1504-2.1(a).  However, federal law places significant limits on long-term discipline that may be imposed upon students with disabilities. 

Suspensions of students with disabilities cannot exceed 10 consecutive days without a manifestation determination review.  For suspensions in excess of 10 days, there must be a meeting to determine whether the offending conduct was a manifestation of the student’s disability.  20 U.S.C. § 1415(k)(1)(B); NC 1504-2.1(e). 

Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement,” and schools cannot change special education students’ placements (i) without parental consent, or (ii) without a manifestation determination meeting, except for certain behaviors 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); NC 1504-2.1(g) and (i).  In such circumstances, the district may place the student in an interim alternative setting for up to 45 days.  20 U.S.C. § 1415(k)(1)(G).

Manifestation Determination Meeting

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 expel the student or change his placement. 

The team must consider two issues: 1) was the behavior caused by, or did it have a direct and substantial relationship 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; 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); 34 C.F.R. 300.532(c); NC 1504-2.3. 

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); NC 1504-2.1(d).  The services a child receives under these circumstances must enable him or her:

• to continue to participate in the general curriculum;
• to continue to progress toward meeting his or her 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).