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- Can parents see the school records of their student with a disability?
- A parent is entitled to inspect and review all of their student’s education records with respect to the identification, evaluation, and educational placement and the provision of a FAPE to the student. (Rules, Sec. IV.B. and IV.X.4.)
- The school must provide a parent with copies of a child’s records within forty-five days of a request and cannot charge more than the actual cost of copying (Rules, Sec. IV.X.8.)
- Parents can request correction or removal of information the parent believes to be inaccurate, misleading, or a violation of privacy or other rights, and may request a hearing to challenge the information in the education records.
- What laws apply to special education in Utah?
- Special education programs in Utah are governed by both federal and state law, but in no circumstances may state provisions limit 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 between the ages of three and eighteen years of age (or until twenty one years of age, if they have not yet completed their high school education) with a qualifying disability in need of specialized educational services in order to benefit from their education are entitled to receive special education and related services.
- Eligible disabilities include:
- intellectual disability;
- hearing impairments (including deafness);
- speech or language impairments;
- visual impairments (including blindness);
- emotionally disturbance;
- orthopedic impairment;
- traumatic brain injury;
- other health impairments;
- multiple disabilities;
- specific learning disabilities;
- developmental delay.
(20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8; Sec. 53A-15-301, et. seq., Utah Code Annotated 1953, as amended; Rules, Sec. I.A.; Part B of the Individuals with Disabilities Education Act (“IDEA”) 20 USC 1401 et. seq., as amended and its implementing regulations 34 C.F.R.300 and 303.)
- A child is not eligible for special education if the primary or determining factor in the child’s exceptional needs is:
- a lack of appropriate instruction in reading,
- a lack of instruction in math,
- limited English proficiency
- environmental factors
- Cultural factors
- economic factors.
- Utah requires that in addition to grades and standardized tests scores, schools must consider how a child’s emotional, health or other conditions adversely affect his non-academic performance in social, behavioral, or other domains. (Rules, Sec. II.I.).
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education” “FAPE”?
- 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,
- without charge,
- meet appropriate standards,
- include preschool through secondary education, and
- conform with an Individual Education Program (IEP). (20 U.S.C. Sec. 1401(9); 34 C.F.R. 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:
- “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))
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
- Each LEA and the Utah State Board of Education are required to provide “related services”, which allow a student with a disability to benefit from his/her special education program at no cost to the parents.
- In Utah, related services may include any of the following:
- Speech-language pathology;
- 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; and
- Medical services for diagnostic or evaluation purposes.
(Rules, Sec. I.E.34.)
- If state agencies fail to provide or pay for a necessary related service, the school district is responsible for providing or paying for these services in a timely manner. (Rules, Sec. VIII.L.4.b)
- Who provides special education?
- The state education agency and the Local Education Agency are responsible for ensuring that appropriate special education services are delivered.
- A Local Education Agency (“LEA”) consists of:
- the forty Utah School districts,
- the Utah schools for the Deaf and the Blind, and
- all public charter schools that are established under Utah law that are not schools of an LEA.
- If the school district fails to ensure services, the Utah State Office 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; Rules, Sec. VIII.R.)
- 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,” with their nondisabled peers (to the greatest extent appropriate).
- Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that the use of 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 can be offered:
- in the mainstream classroom (with supplementary services such as resource room or itinerant instruction, if necessary),
- in a special classroom,
- in special schools,
- at home, or
- in hospitals and institutions
- The school district should, unless the individualized education program requires other arrangements, educate the special education student in the school that he or she would attend if non-disabled.
- a special education student may not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.
- If a child’s needs cannot be adequately met in the mainstream classroom (even with accommodations and services), 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.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
- Either a parent or an LEA may initiate a request for an initial evaluation, within 45 days of receiving parental consent, to determine:
(1) if a student is a “student with a disability” and
(2) the educational needs of the student (Rules, Secs. II.B., II.D.)
- The student must be assessed in all areas related to the suspected disability, including (if appropriate):
- social and emotion status,
- general intelligence,
- academic performance,
- communicative status, and
- motor abilities. (Rules, Sec. II.F.)
- The student’s parent or teacher may request a reevaluation
- reevaluations must occur at least once every three years unless the parent and the LEA agree that a reevaluation is unnecessary. (Rules, Sec. II.G.)
- Evaluation materials must be:
- Non-discriminatory on a racial or cultural basis,
- provided and administered in the student’s native language, and
- administered by trained and knowledgeable personnel. (Rules, Sec. II.F.)
- The parents of a student with a disability have the right to obtain an independent educational evaluation of the student at public expense if they disagree with an evaluation obtained by the LEA. (Rules, Sec. IV.C.)
- Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the student;
- public expense means that the LEA either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent. (Rules, Sec. IV.C.)
- 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 student needs special education and related services, the LEA must ensure that a meeting to develop an individualized education program (“IEP”) for the student is conducted within thirty calendar days. (Rules, Sec. III.B.)
- An IEP team must conduct the meeting, including:
(1) the parents of the student;
(2) not less than one regular education teacher of the student;
(3) not less than one special education teacher or provider of the student;
(4) a representative of the LEA who is qualified to provide or supervise the provision of specially designed instruction;
(5) an individual who can interpret the instructional implications of evaluation results;
(6) others at the discretion of the parent or the LEA; and
(7) whenever appropriate, the student.
(Rules, Sec. III.E.)
- The IEP team must consider:
- the strengths of the student,
- the concerns of the parent for enhancing the education of their student,
- the results of the initial or most recent evaluation of the student, and
- the academic, developmental, and functional needs of the student. (Rules, Sec. III.I.)
- The IEP team must review the student’s IEP not less than annually, to determine whether the annual goals are being achieved and revise the IEP as appropriate. (Rules, Sec. III.I.)
- The IEP is a written statement that must include:
(1) the student’s present levels of academic achievement and functional performance;
(2) measurable annual goals, including academic and functional goals;
(3) for students with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives;
(4) a description of how the student’s progress toward meeting the annual goals will be measured and when periodic reports to the parents on progress will be provided;
(5) the special education and related services, supplementary aids and services, and the program modifications or supports for school personnel that will be provided to the student;
(6) an explanation of the extent, if any, to which the student will not participate with non-disabled students in the regular education environment and activities;
(7) any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the student on assessments, and why the student cannot participate in the regular assessment; and
(8) the projected date for the beginning of the services and modifications, and the anticipated frequency, location, and duration.
(Rules, Sec. III.J.)
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
- The parent can file a complaint in writing to the superintendent or charter school administrator of the LEA, with a copy to the State Director of Special Education. (Rules, Sec. IV.G.1.)
- The complaint must include:
(1) a statement that the LEA has violated a requirement of the Rules;
(2) the facts on which the statement is based;
(3) the signature and contact information for the complainant;
(4) the name and address of the student;
(5) the name of the school the student is attending;
(6) a description of the nature of the problem of the student, including facts relating to the problem; and
(7) a proposed resolution of the problem to the extent known and available. (Rules, Sec. IV.G.2.)
- The LEA next:
1) reviews the information,
2) conducts such investigation as the LEA determines is necessary,
3) gives the complainant the opportunity to submit additional information,
4) issues a written decision addressing each allegation.
5) determines the procedures for the effective implementation of that decision. (Rules, Sec. IV.G.4.)
- The complainant has ten calendar days to appeal the decision of the LEA to the Utah State Office of Education.
- Each LEA must also ensure that procedures are established providing for the resolution of disputes through voluntary mediation, in which case they enter into a legally binding mediation agreement that is enforceable in court. (Rules, Sec. IV.H.)
- What options does a parent have if s/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
- A parent or Local Education Agency (LEA) may file a due process complaint filed with the LEA (with a copy to the Utah State Office of Education-Special Education Director) on any of the matters relating to:
- the identification,
- evaluation, or
- educational placement of a student with a disability, or
- the provision of a FAPE to the student. (Rules, Sec. IV.1.)
- With certain exceptions, the due process complaint must allege a violation that occurred not more than two years before the date the parent or LEA knew or should have known about the alleged action that forms the basis of the due process complaint
- The due process complaint must include:
- the name and address (or contact information for a homeless student) of the student
- the name of the school the student is attending
- a description of the nature of the problem
- a proposed resolution of the problem to the extent known and available to the party at the time.
- A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements listed above.
- The due process complaint is generally deemed sufficient unless the party receiving it notifies the hearing officer and the other party in writing, within fifteen calendar days that it does not believe it complies.
- Within five calendar days of receipt of notification, the hearing officer is to determine if complaint meets the requirements and notify the parties in writing of that determination.
- The LEA is to respond to the due process complaint within ten (10) days of receiving the complaint.
- The parent and the LEA are to participate in a resolution meeting, within 15 days of the parent’s complaint, unless both parties agree to waive it or to use a mediation process.
- 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 or federal court. (Rules, Sec. IV.L.)
- A parent has many rights at the hearing, such as:
- 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, and the parent may request the hearing be open to the public.
- The hearing must be fair
- the hearing officer must be impartial
- the parent may bring an attorney or advocate
- Parents may present witnesses and evidence
- Parents may cross-examine witnesses and evidence presented by the LEA. (Rules, Sec. IV.N.)
- Once a complaint has been filed, the student is entitled to “stay put” at his or her current placement unless:
- the complaint has been resolved
- the parent and district agree to change the placement
- a child who is pending expulsion for certain discipline violations
- Can a special education student be disciplined?
- School personnel may remove a student with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten consecutive school days (to the extent those alternatives are applied to student without disabilities)
- Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement.”
- 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 that:
1) enable him to continue to participate in the general curriculum
2) to continue to progress toward meeting his IEP goals
3) to receive needed behavioral assessments and services. (Rules, Sec. V.; 20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)(i)(ii))
- Schools cannot change special education students’ placements without:
- parental consent, or
- a manifestation determination meeting except for certain behaviors (such as where the student is involved with drugs or weapons or presents a danger to himself or others)
- In such circumstances, the district may place the student in an interim alternative setting for up to 45 days. (Rules, Sec. V.)
- A manifestation determination meeting is a meeting of the relevant members of the IEP team, held within 10 days, to determine whether a student with a disability may be expelled or have his placement changed for more than 10 consecutive school days for misconduct.
- 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?
2) was the behavior the direct result of the school’s failure to implement the IEP? (Rules, Sec. V)
- 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. (Rules, Sec. V; 20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f)).