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• Special education programs in Vermont are governed by both federal and state law, but in no circumstances may state provisions limit the protections offered under federal law.
• School districts must provide each student with a disability with a free appropriate public education (FAPE). 
• “Special education” in Vermont means:
  • “to the extent required by federal law, specially designed instruction, at no cost to parents or guardian, to meet the unique educational needs of a child with a disability, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” 16 V.S.A. § 2942

• All children 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.
• “Child with a disability” means any child in Vermont eligible under state regulations to receive special education 16 V.S.A. § 2942
  • Children below the age of three who are at a high risk of developmental delay or have a medical condition which may result in significant delays may be eligible
  • Children from age three years to six are eligible if they were evaluated under the previous standards before the age of three.
• Children who have not been evaluated are eligible if they have a medication diagnosed by a licensed physician which may result in significant delays, or if the child has a developmental delay. Examples of eligible medical conditions may include:
  • autism,
  • cerebral palsy,
  • Down Syndrome, and
  • ADD with hyperactivity.
• Developmental delays are severe assessments below the norm in:
  • communication,
  • adaptive development,
  • social development,
  • physical development, or
  • cognitive skills. Vermont Special Education Rule 2361.
• Children from six years up are eligible if:

1) they have a one of the above disabilities,
2) the disability results in an adverse effect on the child’s educational performance in one or more of a set of basic skills, and
3) the child needs special education services to benefit from his or her educational program, and this support cannot be provided through the educational support system, standard instructional conditions or supplementary aids and services provided in the school.
Vermont Special Education Rule 2362(a)

• 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 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) and to the extent appropriate, 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).

• School districts are required to provide “related services”, which allow a student to benefit from this special education program at no cost to the parents. These include:
  • developmental,
  • corrective, and
  • other supportive services.
• Related services may include, but are not limited, the following:
  • transportation,
  • speech-language pathology,
  • audiology services,
  • interpreting services,
  • psychological services,
  • physical therapy,
  • occupational therapy,
  • 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.
  • health services
  • school nurse services,
  • social work services in schools, and
  • parent counseling and training

34 C.F.R. § 300.34; Vermont Special Education Rule 2360.3.2.

• 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 that device.
• This does not limit: 
  • the right of a child with a surgically implanted device to receive related services that are determined by the IEP Team to be necessary for the child to receive FAPE
  • the responsibility of a school administrative unit to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including:
    • breathing,
    • nutrition,
    • operation of other bodily functions, while the child is transported to and from school or is at school, or
    • prevent the routine checking of an external component of a surgically implanted device to make sure it is functioning properly. 34 CFR § 300.34(b)(2)(i-iii)

• The Vermont State Commissioner of Education has ultimate responsibility for special education. 16 V.S.A. § 2943.
  • An advisory council on special education periodically reviews rules and laws, and makes suggestions for policy change. 16 V.S.A. § 2945.
• The local education agencies (LEA) have primary responsibility to provide special education services.
  • In the event the LEA does not fulfill its duties, the responsibility for providing special education goes to the State Commissioner of Education.

• 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, 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; 16 V.S.A. § 2959b.
• Specialized education can be offered in:
  • the mainstream classroom,
  • in a resource room,
  • at home, or
  • in hospitals or residential programs.
• The Vermont Department of Education Review Team is responsible for ensuring that residential placements are in the least restrictive environment, and must make every effort to assist school districts and parents in understanding the range of educational options available as early as possible in the planning process for the child.
• The review team also provides: 
  • technical assistance,
  • plans of correction, and
  • withholding of funds if the child is placed in a residential facility more expensive than an available and appropriate alternative residential facility. 16 V.S.A. § 2958.

• School districts must engage in child-find activities to identify children, birth to three years, who may require early intervention services.
• Information and outreach services such as: 
  • screening,
  • information and referral, and
  • family support and education shall be available for any family with concerns about their infant or toddler’s development. Vermont Special Education Rule 2360.5.
• With parent consent, a school district or other agencies can refer children for evaluation.
• This evaluation should be a multidisciplinary process that includes:
  • medical reports,
  • assessment instruments,
  • a review of medical records,
  • documentation of a diagnosis, and
  • evaluation of a child’s cognitive, physical, communicative, social, and adaptive development. Vermont Special Education Rule 2360.5.2.
• If a parent disagrees with an evaluation, they may request an independent education evaluation at public expense. Vermont Special Education Rule 2362.2.7; 34 CFR 300.502.

• An Individualized Education Program (frequently referred to as an “IEP”) is developed for that child within 30 days of an initial determination that a child is eligible for special education and related services. This IEP will include:

(a) A description of all special education services, related services, and supplementary aids and services that the child will need to be able to derive benefit from his or her educational program;
(b) A description of the special education program; and
(c) Accommodations and/or modifications necessary for the child to progress in the general education curriculum.

• An IEP is developed by an IEP team including:
  • local school district or charter school representative,
  • not less than one special education teacher,
  • a general education teacher,
  • other individuals who the parent believes has knowledge or special expertise,
  • an interpreter, if necessary,
  • the parents or guardians, and,
  • if appropriate, the child. Vermont Special Education Rule 2363.4; 34 CFR 300.321.
• Parents must be notified of and allowed to participate actively in the meeting. Vermont Special Education Rule 2363.5; 34 CFR 300.322.
• In the development, review, and revision of the IEP, the IEP team shall consider:

(1) The strengths of the child and the concerns of the parent for enhancing the education
of their child;
(2) The results of the initial or most recent evaluation of the child;
(3) As appropriate, the results of the child’s performance on any general State or
district-wide assessment programs; and
(4) The academic, developmental, and functional needs of the child
(5) Any language or communication needs of the child
(6) Whether the child requires assistive technology
(7) Social barriers to learning
(8) Supplementary aids and services for the child to help obtain IEP goals
Vermont Special Education Rule 2363.7; 34 CFR 300.324.

• The parent must consent to the IEP program in order for the child to receive special education services. Vermont Special Education Rule 2363.9; 34 CFR 300.300(b).

•  A parent may file a complaint with the Vermont Commissioner of Education alleging a violation of federal or state special education laws or regulations (including a failure to implement an IEP). Vermont Special Education Rule 2365.1.5.
• The complaint must be in writing and include at least the following:

1) A statement that a public agency has violated a requirement of federal special education law;
2) The facts on which the statement is based;
3) A description of the nature of the problem of the child, including facts relating to the problem;
4) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
5) The signature and contact information for the complainant, and the name, age, address of residence, and school of attendance for the child;

• In most circumstances, the complaint may only allege violations that occurred no more than one year before the date that the complaint is received. Vermont Special Education Rule 2365.1.5.
• After receiving the complaint, the Department of Education will investigate the evidence underlying the complaint. This investigation can include:
  • document review,
  • meetings,
  • hearings, and
  • on-site investigations.

Vermont Special Education Rule 2365.1.5 (f).

• Within 60 days of receiving the complaint, the Department will issue a written report to determine whether the school district is out of compliance with special education laws and regulations.
• If so, the Department may: 
  • order the school to provide services,
  • reformulate IEPs,
  • award monetary reimbursement, or
  • take any other appropriate corrective action. Vermont Special Education Rule 2365.1.5 (g).

• A parent may submit a written request for a due process hearing to the Vermont Commissioner of Education.
  • The parent may use the model Due Process Complaint Notice form provided by the Commissioner, or create their own.
• A due process hearing deals with any matters regarding:
  • identification,
  • evaluation,
  • placement of the child or
  • provision of free appropriate public education (FAPE). Vermont Special Education Rule 2365.1.6.2 (a)-(b).
• The complaint should be filed within two years of the date that the parent knew or should have known about the violation and must include the following:

1) The name, age, address, and school of attendance for the child;
2) of the nature of the problem relating to the proposed, or refused initiation or change of the child’s identification, evaluation, and/or educational placement, and the facts relating to the problem; and
3) A proposed resolution of the problem to the extent known and available to the complainant at the time. Vermont Special Education Rule 2365.1.6.2 (c).

• A complaint is deemed sufficient unless the other party objects in writing within 15 days of receiving the complaint. Vermont Special Education Rule 2365.1.6.5.
• The school district should respond to the complaint within 10 days and should include:

(i) An explanation of why the agency proposed or refused to take the action raised in the due process complaint;
(ii) A description of other options that the IEP team considered and the reasons why those options were rejected;
(iii) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; an
(iv) A description of other factors that are relevant to the agency’s proposed or refused action.

• The hearing officer will determine if the parties wish to resolve the problem through mediation.
  • Mediation is a voluntary process, conducted by a neutral third party, in which parties mutually resolve problems and come to a legally binding.
• If not, the officer will set a date for a resolution session within 15 days, unless the parties agree to waive one.
  • At a resolution session, the parties discuss the complaint, the facts that form the basis of it, and attempt to resolve the dispute.
• The session consists of:
  • the parents,
  • relevant members of the IEP team, and
  • a school district representative with decision-making authority.
  • both parties may have lawyers, but the school district may not bring an attorney unless the parent brings one.
• If the parties cannot come to a resolution within 30 days, the parties proceed to a formal due process hearing conducted by a neutral administrative hearing officer.
  • Parties will be able to:
    • compel the attendance of witnesses,
    • submit evidence,
    • cross-examine witnesses,
    • provide exhibits, and
    • make statements to the hearing officer. Both parties may have legal counsel.
• The hearing will last one day, and, in most circumstances, the hearing officer will issue a final decision on the hearing within 45 days of expiration of the resolution period.Vermont Special Education Rule 2365.1.6.9 – 2365.1.6.16.
  • A parent can appeal a due process hearing final decision to the relevant civil court within 90 days. 34 CFR 300.516(b); 20 U.S.C. 1415(f)(3), (i)(2).

• Federal law allows for up to 10 consecutive days of suspension.
  • Suspensions in excess of 10 days require a manifestation-determination meeting and are considered “changes of placement” 
• Schools cannot change special education students’ placements without parental consent, or 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.
  • 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 expel the student and 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? Vermont Special Education Rule 4313.

• 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 meantime, the child remains in the same educational setting. Vermont Special Education Rule 4313; 20 U.S.C. Sec. 1415(k)(1)(F)

• Parents have the right to inspect and review any education records relating to their children that are collected, maintained, or used by the school district.
  • The parent must be able to review the records within 45 days of making their request, and before any IEP meetings, mediation or resolution session, or due process hearings. The right to inspect and review education records includes:

1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;
2) The right to request that the participating agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and;
3) The right to have a representative of the parent inspect and review the records.

• A parent or eligible child who believes that information in the education records is inaccurate or misleading or violates the privacy or other rights of the child may request an amendment of that information.
• If the school district refuses to amend the information, a parent may request a hearing.
  • The hearing, held by a neutral person, appointed by the school district, will then decide whether to amend the information, and make a written report of this decision. Vermont Special Education Rule 2365.2.7- 2365.2.10.