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- What is special education?
- Special education programs in North Dakota are governed by both federal and state law. However, state provisions may never limit the protections offered under federal law.
- Special education means instruction designed to meet the needs of a student with disabilities at no cost to the parents. Special education also includes transportation and corrective and supporting services required to assist a student with disabilities in taking advantage of, or responding to, educational programs and opportunities. N.D. Cent. Code Sec. 15.1-32-01(4)(a).
- Who is eligible for special education?
- A child is eligible for special education if they have a qualifying disability and need special education and related services because of such disability.
- There must be a determination by a multi-disciplinary team that the child has a qualifying disability. The disability categories of eligibility for special education services include:
- mental retardation,
- hearing impairment, including deafness,
- deaf blindness,
- speech or language impairments,
- visual impairment, including blindness,
- emotional disturbance,
- orthopedic impairment,
- traumatic brain injury,
- other health impairments, including heightened alertness to environmental stimuli.
20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8; N.D. Cent. Code Sec. 15.1-32-01.
- A qualifying student must be at least three years old and may not have reached the age of twenty-one before September 1st in the year seeking special education services. N.D. Cent. Code Sec. 15.1-32-01(4)(a).
- Children age three to nine who do not fit in one of the above disability categories may still be eligible for special education services if they exhibit a non-categorical development delay that has a disabling effect on their development or education, although this option should be used as a last resort.
- A developmental delay is one in which a child’s development and skill acquisition is significantly below that of similar age peers in one or more of the following areas:
- fine motor,
- vision, hearing,
- adaptive skill acquisitions. N.D. Cent. Code Sec. 15.1-32-24.
- North Dakota Dep’t of Pub. Instruction (NDDPI), Guidelines: Identification and Evaluation of Students with Non-Categorical Delay for Ages 3 through 9 (March 2007), available online at the following site: http://www.dpi.state.nd.us/speced/guide/NCDguidelines.pdf.
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
- Free appropriate public education means special education and related services that are provided at public expense without charge to the parents and under public supervision and direction.
- The FAPE must meet the standards of North Dakota Department of Public Instruction (NDDPI) and conform with an Individual Education Program (IEP). 34 C.F.R. Sec. 300.17; NDDPI, Parent Guide to Special Education (2007) at 6 (“ND Parent Guide”), available online at the following site: http://www.dpi.state.nd.us/speced/guide/PGuide07.pdf.
- Special education provided to children with disabilities must be specially-designed instruction tailored to meet the unique needs of the child’s disability and help the child make progress in the general education curriculum.
- Specially-designed instruction “means the school district provides an education “adapt[ed], 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.” 34 C.F.R. Sec. 300.39(b)(3).
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
- “Related services” are transportation and such developmental, corrective, and other supportive services that are required to assist a child with a disability to benefit from special education, with no cost to parents. Related services include:
- speech-language pathology and audiology services,
- interpreting services,
- psychological services,
- physical and occupational therapy,
- recreation, including therapeutic recreation,
- early identification and assessment of disabilities in children,
- counseling services, including rehabilitation counseling,
- orientation and mobility services,
- medical services for diagnostic or evaluation purposes.
34 C.F.R. Sec. 300.34(a); N.D. Cent. Code Sec. 15.1-32-01.
- Related services also encompass school health services and school nurse services, social work services in schools, and parent counseling and training. N.D. Cent. Code Sec. 15.1-32-01.
- Related services do not include surgically-implanted medical devices, including cochlear implants, and the maintenance or replacement of such devices. However, schools should routinely examine external components of a surgically-implanted device to ensure proper functioning. 34 C.F.R. Sec. 300.34(b).
- With parental consent, a school district may access a family’s insurance options to pay for the cost of evaluating a student’s medically related disability and to pay for the related services provided there is no financial loss to the student or parent. N.D. Cent. Code Sec. 15.1-32-13.
- Who provides special education?
- In North Dakota, every school district must provide special education to children with a qualifying disability who require special education.
- School districts are organized into special education “units” that consist of a single district, multiple districts, or a regional education association. Each unit employs a special education director who assists the unit with the development and administration of special education programs. N.D. Cent. Code Sec. 15.1-32-07; NDDPI, Special Education Frequently Asked Questions at 8, available online at the following site: http://www.dpi.state.nd.us/speced/faq.pdf.
- Where should a child receive his or her special education and related services? What is a “least restrictive environment”?
- School districts must make every effort to provide the necessary supports that will allow a disabled child to be educated in a neighborhood school.
- Special education may be offered in a classroom, at home, in a resource room, in hospitals and institutions, and in other appropriate settings. A child’s placement must be determined annually and is based on the student’s IEP. 34 C.F.R. Sec. 300.115-116; ND Parent Guide at 23.
- Special education services should be provided in the least restrictive environment, where a disabled student has access to the general education curriculum and, to the maximum extent appropriate, is educated with children who do not have disabilities.
- Students with disabilities should be removed from the mainstream educational environment or placed in special classes only when the nature or severity of their disability is such that education in regular classes cannot be achieved, even with the use of supplementary aids and services. 20. U.S.C. Sec 1412(a)(5)(A); 34 C.F.R. Sec. 300.114.
- A school district may not remove a child with from education with non-disabled peers just because he or she needs modifications to the general curriculum. 34 C.F.R. Sec. 300.116(e).
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
- Before any special education services begin, a comprehensive and individual evaluation of the child must be completed.
- A parent may make a written request for a referral for evaluation for a suspected disability. Alternatively, the school district may identify a child who should be referred for an evaluation.
- After a referral for an evaluation has been made and before the evaluation process starts, parents must be given prior written notice (in their native language) about the proposed evaluation and must provide their informed written consent for such an evaluation. If a parent does not consent to an evaluation, the school district may initiate dispute resolution proceedings, including a due process hearing.
- Within sixty days of receiving parental consent, the individualized evaluation of 34 C.F.R. Sec. 300.300; ND Parent Guide at 8.the student must occur. The evaluation is conducted by a multidisciplinary team, which must include educational professionals and the student’s parent(s). Medical professionals may also be included on the evaluation team.
- The multidisciplinary team gathers demographic, functional, instructional, and developmental information about the child and develops a profile of the student. The team summarizes and interprets the evaluation results to:
- determine if the child has a disability,
- identify the educational needs of the child,
- and to guide decision making in finding the appropriate individualized educational program.
- Revaluation may occur not more than once a year and must occur at least once every three years, unless the parent and the school district agree otherwise. 34 C.F.R. Sec. 300.301-303; N.D. Cent. Code Sec. 15.1-32-12.
- If a parent disagrees with the school district’s evaluation, he or she may obtain an independent educational evaluation at public expense. This evaluation is conducted by a qualified examiner who is not employed by the child’s school district. The school district must consider the results of the independent educational evaluation before taking further action regarding a student suspected of having a disability. 34 C.F.R. Sec. 300.303; ND Parent Guide at 11-12.
- 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 a child has been determined to have a disability, a meeting must be held within thirty days to develop an IEP. Required participants for the IEP meeting include:
- at least one of the child’s regular education teachers,
- at least one special education teacher or provider,
- a representative of the school district,
- and an individual who may interpret the evaluation results.
- These participants are equal, valued members of the decision-making process regarding the child’s IEP.
- An IEP meeting may occur without these required participants provided parents and the local education agency consent to the absence.
- Other meeting participants may include transition services personnel and the child, when appropriate. 34 C.F.R. Sec. 300.320; ND Parent Guide at 13-14.
- An IEP is a written plan created and implemented to meet the unique educational needs of the student with disabilities. A school district may not implement an IEP for a student until it receives informed written consent from a parent. An IEP includes:
- the child’s strengths and academic, developmental and functional needs,
- annual goals and short-term objectives (when appropriate),
- standards and evaluation procedures to determine if goals are effective or successful,
- description and details regarding the amount and length of special education and related services that will be provided, as well as to what extent the child will participate in general education classes with nondisabled peers, and
- transition planning for the child after graduation from high school, including consideration of post-secondary goals.
34 C.F.R. Sec. 300.320; ND Parent Guide at 17-18.
- At a minimum, a disabled student’s IEP must be reviewed annually. Upon the request of a parent or school district, however, a student’s IEP may be reviewed anytime during the school year.
- Amending or modifying the IEP outside of the regular annual review may be agreed upon by the parents and the school, and does not require the full IEP team.
- 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 any problem arises with provision of special education services, the parent should first report the issue to individuals at the local level who have direct involvement with the student. If this course of action fails, parents have several options.
- If a parent believes the school district has violated the IDEA by failing to implement or appropriately develop a child’s IEP, he or she may file a written complaint with the NDDPI. The complaint may be submitted in a written letter or through a “Request for Complaint Investigation” form that is available through the North Dakota Special Education office. The complaint must include:
1. a statement and supporting facts about how the school has violated Part B of the IDEA,
2. details about the school,
3. parental contact information and signature,
4. proposed resolution, and
5. details about the child’s disability.
- The alleged violation must have occurred within one year from the date the complaint is filed. 34 C.F.R. Sec. 300.151-53; ND Procedural Safeguards at 11.
- At the time parents submit their claim to the state, they must also supply a copy of the complaint to the appropriate school district. The school district is provided a chance to submit a formal response to the complaint and propose resolution.
- NDDPI conducts an investigation where appropriate and renders a decision within 60 days of receipt of the complaint, though the timeline may be extended. ND Procedural Safeguards at 11-12.
- 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’s concerns are directly related to decisions about a child’s IEP, a parent may request a Facilitated Individualized Education Program at no cost from the North Dakota Department of Public Instruction (NDDPI).
- In IEP facilitation, a neutral-third party facilitator assists in the development of an appropriate IEP and ensures IEP meetings stay focused on the needs of the disabled student. The IEP facilitator participates only with the consent of parents and the school district. NDDPI, Parental Rights for Public School Students Receiving Special Education Services (2007) (“ND Procedural Safeguards”) at 11, available online at the following site: http://www.dpi.state.nd.us/speced/guide/PGuide07.pdf.
- A parent may also request the school district participate in mediation. Like IEP facilitation, mediation is a free service conducted by a trained and impartial professional not employed by the school district. Mediation is voluntary, and both parties must agree to proceed before a mediator is appointed. If an accord is reached, the parties sign a legally-binding written agreement. 34 C.F.R. Sec. 300.506; ND Procedural Safeguards at 11.
- If parent(s) cannot resolve a conflict with a school district regarding matters related to a child’s IEP, they have the right to request a due process hearing conducted by an impartial person by filing a due process complaint.
- The complaint must be made within two years from the date the alleged action occurred. This time limit may be modified if the school district withheld information from the parents.
- A parent must file a complaint through either a letter to the Director of Special Education at the NDDPI or through a Due Process Complaint Notice form provided by NDPPI. The complaint must include:
1. the child’s name and address,
2. the child’s school,
3. a description of the problem and supporting facts,
4. and a proposed resolution. 34 C.F.R. Sec. 300.508(b);ND Procedural Safeguards at 12.
- The school must respond to the parent’s complaint within ten days of receipt, unless they had previously provided the parent with prior written notice related to the subject matter detailed in the complaint. The response must explain why the school proposed or refused the action detailed in the due process complaint, the factors underlying such action or inaction, and other options considered. 34 C.F.R. Sec. 300.508(e); ND Procedural Safeguards at 13.
- The school district must also convene a “resolution meeting” to discuss the allegation within fifteen days of when the school district receives the complaint, unless the parties agree (in writing) to waive the meeting or use the mediation process instead. The purpose of this meeting is to provide the school district with the chance to address and resolve the issues outlined in the complaint.
- The resolution session should include the parents, a representative of the school district with decision-making authority, and members of the IEP who have specific knowledge of the facts contained in the complaint. The school district may not be represented by counsel at this meeting unless an attorney accompanies the parent. 34 C.F.R. Sec. 300.510(a); ND Procedural Safeguards at 13.
- The NDDPI provides a neutral facilitator to oversee the resolution process and help the parties work towards agreement. The resolution process may not extend beyond thirty days from the time the complaint was filed. If the resolution process is successful within this timeframe, both parties sign a legally binding agreement that is enforceable in court. 34 C.F.R. Sec. 300.510(d)-(e); ND Procedural Safeguards at 13.
- If the parties fail to reach an agreement within the thirty-day period or elect to waive the resolution meeting, the timeline for a due process hearing is then triggered and a parent is entitled to a hearing and a decision within forty-five days (though these timelines may be extended). Parents have specific rights at due process hearings, including:
- the right to be represented by counsel and to bring individuals who have knowledge about children with disabilities;
- the rights to present evidence and confront, cross-examine, and compel the presence of witnesses;
- the right to written or electronic (i) verbatim record of the hearing and (ii) findings of fact and decisions, at no cost
- the right to have the child who is the subject of the hearing present; and
- the right to open the hearing to the public.
34 C.F.R. Sec. 300.512(a) – (c); ND Procedural Safeguards at 13-14.
- Five days prior to the hearing, the school district and parents must disclose to one another the evaluations of the student completed by that date and recommendations based on those evaluations that the party intends to use at the hearing. A hearing officer may bar a party that fails to adhere to this requirement from introducing undisclosed evaluations without the consent of the other party. 34 C.F.R. Sec. 300.512(b).
- The hearing must be fair and conducted by an impartial hearing officer, who weights the relevant merits of each party’s arguments and evidence. The party who requests the hearing will have the burden of proving their case. Shaffer v. Weast, 546 U.S. 49 (2005).
- Once a hearing officer issues a decision, the school district should implement the decision as soon as possible. A parent may appeal the decision of a hearing office. 34 C.F.R. Sec. 513.
- Once a due process complaint has been filed, a child should remain in the current educational placement (“stay put rule”). However, the hearing officer or the parents and school district may agree to alternative placement or services pending due process proceedings. ND Procedural Safeguards at 13-14.
- Can a special education student be disciplined?
- If a student enrolled in a special education program violates the student discipline code, he or she may be disciplined even if misconduct is a manifestation of their disability.
- The school may suspend the child or place the child in an interim educational setting for no more than ten consecutive school days or ten cumulative days in a school year. 20 U.S.C. Sec. 1415 (k)(1)(b).
- Suspensions, expulsions, and interim alternative placements that exceed ten days constitute “changes in placement,” which require parental consent and a manifestation determination meeting. 20 U.S.C. Sec. 1415 (k)(1)(g).
- A child who presents a danger to others or possesses a weapon or drugs on school ground may be removed to an interim alternative setting for up to forty-five days without a manifestation determination meeting. 20 U.S.C. Sec. 1415(k)(1).
- The manifestation determination meeting consists of relevant members from the IEP team and must be held within ten days of the school’s decision to change the student’s placement. A manifestation determination is the process of evaluating the correlation between a student’s disability and misbehavior.
- At the meeting, the child’s IEP team evaluates two questions:
(i) did the child’s misconduct have a “direct and substantial relationship to the child’s disability”; and
(ii) did the child’s misconduct directly result from the school district’s failure to implement the IEP?
- If the team members determine that the answer to either of these questions is “yes,” then the school district must develop a behavioral intervention plan for the child or remedy the inefficiencies in the IEP implementation. The child should return to his or her educational placement unless the parent agrees to placement modification. 34 C.F.R. Sec. 300.530(f)(2).
- If the team members determine that the answer to both questions is “no” and thus the misconduct was not a manifestation of the child’s disability, then the child may be disciplined in the same manner as a non-disabled child. 34 C.F.R. Sec. 300.530.
- The parent may appeal this determination by requesting a due process hearing, and such request must be resolved within thirty school days. During the appeal process, the child will remain in the alternative placement. U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530 (d)(1)(i)(ii); ND Procedural Rights at 15-16.
- Can parents see the school records of their special education child?
- The IDEA provides parents, or their representative, with the right to review any educational record of their child that the school system collects, maintains, or uses with respect to the identification, evaluation, and educational placement of the child, and the provision of a FAPE to the child. 34 C.F.R. Sec. 300.501(a).
- Schools must respond to such requests within forty-five days and may not charge a fee for searching or retrieving the records indicated in the request. 34 C.F.R. Sec. 300.613(a), 617(a).
- Parents may request copies of the records if not receiving copies would effectively prevent the parents from exercising their right to inspect and review those records. 34 C.F.R. Sec. 300.617(a). Parents may also request explanations and interpretations of the records. 34 C.F.R. Sec. 300.613(b)(1).