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- What is Special Education?
Special education programs in South Dakota 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).
For more information, see the South Dakota Department of Education Special Education Programs guide, “South Dakota Parental Rights and Procedural Safeguards”, (“SD Parent Guide”) revised July 2011, is available online at: http://doe.sd.gov/oess/documents/SPED_parentalrights_handbook.pdf.
- Who is eligible for special education?
Children with a qualifying disability are entitled to receive special education and related services. Eligible disabilities include:
- hearing loss;
- cognitive disability;
- multiple disabilities;
- orthopedic impairment;
- other health impairments;
- emotional disturbance;
- specific learning disabilities;
- speech or language impairments;
- traumatic brain injury; and
- vision loss, including blindness, which adversely affects educational performance.
20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8; S.D. Codified Laws Sec. 13-37-1; S.D. Admin. R. Secs. 24:05:24.01:01 – 24:05:24.01:30.
Any person under the age of twenty one years of age, if they have not yet completed their high school education is eligible for special education. S.D. Codified Laws Sec. 13-37-1; S.D. Admin. R. Secs. 24:05:22:04 and 24:05:22:05.
South Dakota has established detailed criteria, including the areas to be assessed and the testing instruments to be used, to determine whether a student is a child with a disability eligible for special education. S.D. Admin. R. Secs. 24:05:24.01:01 – 24:05:24.01:30.
For more information, see the South Dakota Department of Education “Eligibility Guide”, published Feb. 2011, (“SD Eligibility Guide”) available online at http://doe.sd.gov/oess/documents/Eligibilt.pdf
Your child may have a medical diagnosis for a disability which may still not qualify him or her for special education. Under South Dakota law, a child’s disability must also require instruction and/or services which cannot be provided with modification of the regular school program. S.D. Codified Laws Sec. 13-37-1.
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 and the student does not otherwise meet the eligibility criteria. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b); S.D. Admin. R. Sec. 24:05:25:04.03.
In South Dakota, infants and toddlers less than three years of age who are in need of prolonged assistance may qualify for early childhood services. Local school districts have responsibility for infants and toddlers who are in need of prolonged assistance. S.D. Admin. R. Sec. 24:05:22:04.
- 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 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; and
- conform to an Individual Education Program (IEP).
Title 20 United States Code (U.S.C.) Sec. 1401(9); Title 34, Code of Federal Regulations (C.F.R.) Section (Sec.) 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. Sec. 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. Sec. 300.38(b)(3).
South Dakota law adds to the federal definition of special education by requiring that special education be provided to those students with disabilities whose educational needs are not adequately provided for through the usual facilities and services of the school. S.D. Codified Laws Sec. 13-37-1.
An “appropriate” educational program and placement is one which is designed to meet a student’s unique needs in accordance to his or her individualized education plan (IEP) and allows him or her to obtain “educational benefit.” In addition to the IEP goals, the student should be involved in and making progress in the general curriculum, as well. S.D. Admin. R. Sec. 24:05:27:01.03.
- 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”, which allow a student to benefit from his special education program at no cost to the parents. S.D. Admin. R. Sec. 24:05:27:16. In South Dakota, related services may include any of the following:
- speech-language pathology;
- audiological 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;
- school nurse and school health services;
- social work services; and
- parental counseling and training.
S.D. Admin. R. Sec. 24:05:27:16.
Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (e.g. mapping), maintenance of that device, or the replacement of the device. S.D. Admin. R. Sec. 24:05:27:16.
- Who Provides Special Education?
The state education agency and the local school district are both responsible for ensuring that appropriate special education services are delivered. In South Dakota, services are typically provided by the school district. If the school district fails to ensure services, the South Dakota Department of Education is ultimately responsible for providing 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; S.D. Codified Laws Sec. 13-37-1.2.
- Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
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 modifications, supplementary aids and services are insufficient in the general education environment. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114. Specialized education (including related services) can be offered:
- in the mainstream classroom;
- in a resource room;
- at home;
- in hospitals; or
- in residential programs.
South Dakota law provides that special education students “to the maximum extent appropriate, shall be educated with children who are not disabled” and further provides that “special classes, separate schooling or other removal of children with disabilities from the regular educational classroom may occur only when the nature or severity of the child’s needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily”. S.D. Admin. R. Sec. 24:05:28:01. South Dakota regulations provide for a continuum of alternative placements as follows:
(1) regular educational programs with modification;
(2) resource rooms;
(3) self-contained programs;
(4) separate day school programs;
(5) residential school programs;
(6) home and hospital programs; and
(7) other settings. S.D. Admin. R. Sec. 24:05:28:02.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
A referral includes any written request which brings a student to the attention of a school district administrator (building principal, superintendent or special education director). A referral made by a parent may be submitted verbally, but must be documented by a district administrator. S.D. Admin. R. Sec. 24:05:24:01.
After receipt of a referral, the district may either conduct an informal review or proceed with the evaluation process. An informal review includes a conference with the person making the referral and a review of the child’s school record. S.D. Admin. R. Sec. 24:05:24:02. If, after an informal review, the district determines that no evaluation is necessary, the district must inform the parents of its decision, the reasons for the decision, and their due process rights. If, after an informal review, the district determines that further evaluation is necessary, the district shall conduct a full evaluation. S.D. Admin. R. Sec. 24:05:24:03.
Each school district is required to establish its own procedures with regards to initial evaluation, evaluation procedures, eligibility procedures, placement procedures and reevaluation. An evaluation for special education cannot occur without parental consent. S.D. Admin. R. Sec. 24:05:25:02.01.
Prior to taking any action with regard to the placement of a child with disabilities in a special education program, a full and individual initial evaluation of the child’s educational needs must be conducted. Initial evaluations must be completed within 25 school days after receipt of the parent’s consent to such evaluation. Written evaluation reports, determination of eligibility, and an IEP team meeting must be completed within 30 days from the end of the 25 school day evaluation timeline. S.D. Admin. R. Sec. 24:05:25:03.
Evaluations must be conducted in all areas of suspected disability. Depending on a child’s needs, this may include an assessment of:
- social and emotional status;
- general intelligence;
- academic performance;
- communicative status; and
- motor abilities.
No single measure or assessment is used as the sole criterion for determining eligibility or educational needs. Evaluations must be conducted by trained and knowledgeable personnel in conformance with the instructions provided by the producer of the evaluation. S.D. Admin. R. Sec. 24:05:25:04. In addition, certain evaluators must meet certain certification or licensing standards as set forth in the regulations. S.D. Admin. R. Secs. 24:05:23:01 – 24:05:23:09.
Tests must also be administered in the child’s primary language. S.D. Admin. R. Sec. 24:05:25:04.
Parents are entitled to a copy of the assessments. S.D. Admin. R. Sec. 24:05:25:04.03. If the parent disagrees with the findings or recommendations, the parent may request an independent education evaluation (IEE), which must be considered at the child’s IEP. The 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. S.D. Admin R. Sec. 24:05:30:03.
- 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 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;
- a district representative or school administrator who is knowledgeable about the general education curriculum and the availability of resources of the school district; and
- an individual who can interpret the instructional implications of the evaluation results.
Other participants may include the child, if appropriate, transition services participants, and other individuals of the parent’s choosing who have knowledge or special expertise regarding the student. S.D. Admin. R. Secs. 24:05:25:16, 24:05:25:16.01 and 24:05:27:01.01.
The IEP must include:
- A statement of the student’s present levels of academic achievement and functional performance;
- A statement of measurable annual goals, including academic and functional goals;
- A statement of the special education and related services and supplementary aids and services to be provided to the student or on behalf of the student and a statement of the program modifications or supports for school personnel;
- An explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in activities;
- A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the student on state and district wide assessments;
- The projected date for the beginning of the services and modifications and the anticipated frequency, location and duration of those services and modifications;
- A description of how the student’s progress toward the annual goals will be measured and when periodic reports on the progress the student is making toward meeting the annual goals will be provided; and
- Beginning not later than the first IEP to be in effect when the student turns 16, or younger if determined appropriate by the IEP team, and updated annually thereafter, the IEP shall include:
- Appropriate measurable post-secondary goals based upon age-appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills;
- The transition services needed to assist the student in reaching those goals; and
- Beginning not later than one year before a student reaches the age of majority, a statement that the student has been informed of his or her rights under Part B of the Individuals with Disabilities Education Act, if any, that will transfer to the student on reaching the age of majority.
S.D. Admin. R. Sec. 24:05:27:01.03.
Under South Dakota law, a student with disabilities is not allowed to receive special education or related services without parental informed consent. S.D. Admin. R. Sec. 24:05:27:04.01. If the parent of the student fails to respond or refuses to consent to services, the district may not use the mediation or due process procedures in order to obtain agreement or a ruling that the services may be provided to the student. S.D. Admin. R. Sec. 24:05:27:04.01.
If a student with an IEP moves from one school district to another school district in South Dakota, the new district, in consultation with the parents, must provide a FAPE to the student. This means the district must provide services comparable to those described in the student’s IEP from the previous school district until the new district either adopts the IEP from the previous school district or develops, adopts and implements a new IEP. S.D. Admin. R. Sec. 24:05:27:15.01.
If a child moves into South Dakota 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 evaluations and develops, adopts and implements a new IEP. S.D. Admin. R. Sec. 24:05:27:15.02.
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
If a parent believes the district has violated a requirement of federal or state statutes, rules or regulations, the parent may file a complaint directly with the state director of special education.
The complaint should:
- be signed;
- include a substantive claim of the violation;
- include facts supporting that claim; and
- include relevant contact information.
The claim should be made within one year of the relevant events. The Department of Education will investigate and will issue a decision regarding non-compliance within 60 days. S.D. Admin. R. Sec. 24:05:15:02 and following.
A state complaint form should be filed with the South Dakota Department of Education, Office of Education Services and Supports, Special Education Programs. A sample complaint is in the South Dakota Department of Education Special Education Programs “Questions and Answers About State Complaints”, updated July 2011, available online at: http://doe.sd.gov/oess/documents/QACmplnts.pdf .
- What options does a parent have if s/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
Due Process Complaint
A parent is entitled to file a due process complaint on any matters relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child. S.D. Admin. R. Sec. 24:05:30:07.01. In South Dakota, such requests for due process are filed with South Dakota Department of Education. S.D. Admin. R. Sec. 24:05:30:08.01. The due process complaint be for an action that occurred no more than two years before the date the parent knew or should have known about it. S.D. Admin. R. Sec. 24:05:30:07.02.
When a parent files for due process, the complaint should contain:
- identifying information;
- a description of the nature of the problem of the child relating to the proposed or refused initiation or change;
- facts related to the problem; and
- a proposed resolution, to the extent known and available to the parent at the time.
S.D. Admin R. Sec. 24:05:30:08.02. If the complaint fails to do so, the district may file a notice of insufficiency within 15 days of receiving the complaint. S.D. Admin R. Sec. 24:05:30:08.03. Within another 5 days, the administrative hearing officer shall make a determination regarding the sufficiency of the complaint and immediately notify the parties in writing of that decision. S.D. Admin R. Sec. 24:05:30:08.04.
The parent is entitled to a written decision within 45 days after the conclusion of the 30-day resolution period, or one of the following events:
(1) both parties agree in writing to waive the resolution meeting;
(2) after either the meditation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; or
(3) after both parties agree in writing to continue the mediation at the end of the 30-day resolution period, the parent or district withdraws from the mediation process (parent or district may appeal within 90 days of the final order).
S.D. Admin. R. Secs. 24:05:30:08.14, 24:05:30:13 and 24:05:30:11.
If the district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a FAPE to the child, the district must provide the parent with prior written notice (PWN). S.D. Admin. R. Sec. 24:05:30:04. If the district failed to do so, it must answer the parent’s complaint within ten days of receipt by describing why it refused the parent’s request, the basis for such a refusal, other options and reasons for the district’s action or inaction. S.D. Admin. R. Sec. 24:05:30:08.06.
Informal Resolution Meeting
In South Dakota, the parent and district must participate in an informal resolution meeting unless both parties agree to waive it or if both parties agree to use the mediation process provided under the regulations. S.D. Admin. R. Secs. 24:05:30:08.09 – 24:05:30:08.11. This resolution session must occur within 15 days of the parent’s complaint, and must be completed within 30 days. S.D. Admin. R. Secs. 24:05:30:08.09 and 24:05:30:08.12. This resolution session includes the parents and 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. S.D. Admin. R. Secs. 24:05:30:08.09.
If the parties reach an agreement at the resolution meeting, the agreement must be put in writing. Both parties have three business days to revoke their agreement but in the event they do not, the agreement is binding and enforceable in state or federal court. S.D. Admin. R. Sec. 24:05:30:08.15.
Parents who waive the resolution session may still participate in mediation. 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 must be revoked in mediation. In addition, the time period within which a due process hearing must be held and a decision rendered is paused during mediation as it is during the resolution session. S.D. Admin. R. Sec. 24:05:30:09.
Due Process Hearing
A parent has many rights at the hearing:
- The parent must be notified of free or low-cost legal assistance. S.D. Admin. R. Sec. 24:05:30:08.
- The hearing must be held at a time and place convenient for the parent and child involved. S.D. Admin. R. Sec. 24:05:30:13.
- A parent may request a continuance for good cause. S.D. Admin. R. Sec. 24:05:30:13. A child may attend the hearing, and the parent may request that the hearing be open to the public. S.D. Admin. R. Sec. 24:05:30:12.
- The hearing must be fair. This means that the hearing officer must be impartial and that the parent may bring an attorney or advocate. S.D. Admin. R. Secs. 24:05:30:10 and 24:05:30:12.
- Parents may present witnesses and evidence and may cross-examine witnesses and evidence presented by the district.
- The parent has the right to obtain a verbatim record of the hearing and a written findings of facts and decisions at no cost to the parent. S.D. Admin. R. Sec. 24:05:30:12.
“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. Both the parent and the district may agree to a change in placement or services pending the outcome of the hearing. S.D. Admin. R. Sec. 24:05:30:14.
- Can a special education student be disciplined?
Students with disabilities may be suspended for no more than ten consecutive school days or removed from his or her current placement to an interim alternative educational setting (as would a student without a disability) for any violation of a code of student conduct, even if the misbehavior is a manifestation of the child’s disability. S.D. Admin. R. Sec. 24:05:26:02.02.
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. Federal law and the regulations allow for up to 10 consecutive days of suspension of special education students without any requirement of a manifestation determination, but for suspensions in excess of 10 days, there must be a manifestation-determination meeting. 20 U.S.C. Sec. 1415(k)(1)(B) and S.D. Admin. R. Sec. 24:05:26:09.03.
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. There are exceptions 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) and S.D. Admin. R. Secs. 24:05:26:02.01 and 24:05:26:09.04. 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) and S.D. Admin. R. Sec. 24:05:26:08.01.
Manifestation Determination Hearing
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 a student’s 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? S.D. Admin. R. Sec. 26:05:26:09.03.
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. S.D. Admin. R. Sec. 26:05:26:09.04.
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 school days, and 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); S.D. Admin. R. Secs. 24:05:26:09.06 – 24:05:26:09.08.
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. Sec. 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1); S.D. Admin. R. Sec. 24:05:26:02.03. 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. Sec. 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)(i)(ii); S.D. Admin. R. Sec. 24:05:26:02.03.
If the IEP team determines that the conduct was a manifestation of the child’s disability, the IEP team shall either:
(1) conduct a functional behavioral assessment and implement a behavioral intervention plan for the student; or
(2) if a behavioral intervention plan has already been developed, review the plan and modify it as necessary to address the behavior.
S.D. Admin. R. Sec. 24:05:26:09.04.
- Can parents see the school records of their special education child?
A parent is entitled to inspect and review a copy of all of a child’s school records. S.D. Admin. R. Secs. 24:05:30:02. Each school district shall develop and implement its own policies and procedures with respect to school records.
The school must provide a parent with access to a child’s records without unnecessary delay and before any meeting regarding an IEP or hearing relating to the identification, evaluation or placement of the student or discipline hearing or resolution session and in no case more than 45 calendar days of after a request is made. S.D. Admin. R. Sec. 24:05:29:04.
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 district. The district must either grant or deny the request within a reasonable period of time after receipt of the request. The parent may appeal to the school board and a hearing must be held within 30 days of the request for a hearing, and if the appeal is denied the parent may still submit an objection in writing to the child’s file. S.D. Admin. R. Secs. 24:05:29:09 – 24:05:29:12.