Special Education Primer

Affirmative duty to identify children with special needs

Under both the Individuals with Disabilities Education Improvement Act, which is the federal law that went into effect July 1, 2004, and Article 7, which is Indiana's law.

Currently, Indiana’s law is written to mirror the OLD Individuals with Disabilities Education Act (IDEA), so until it is rewritten children have protections under BOTH laws.

• Schools have an affirmative duty to perform evaluations of children who may possibly have special needs and may require special education and related services of children ages 3 through 22. This is something they are supposed to notice on their own, though much of the time, it’s the parents who realize that there’s something wrong and who ask for evaluations. (511 IAC 7-25-2). This includes students who are in public and private schools, agencies and institutions.
  
  
  

Possible areas of Eligibility for Special Education and Related Services

Autism spectrum, communication disorder, deaf-blind, developmental delay (early childhood), emotional disability, hearing impairment, learning disability, mental disability, multiple disabilities, orthopedic impairment, other health impairment (sometimes called a catch-all category), traumatic brain injury, visual impairment. (511 IAC 7-26-2 through 14).

Sometimes a student with have more than one area of eligibility. Although for the most part schools will accurately identify a student’s area of eligibility, sometimes parents want one label over another. Generally, that is not an issue that the parents have a legal mechanism to force upon the school. And caselaw indicates that the label matters less than whether the services provided were appropriate, which makes sense in most cases.

**Students who have not yet been identified as being eligible for special education and related services are STILL covered by the state and federal protections if they SHOULD have been identified but have not been identified.**

This seems to come up most often in discipline cases.

The IDEIA (federal law) states: §300.527 Protections for children not yet eligible for special education and related services. (a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in §§300.520 or 300.521, may assert any of the protections provided for in this part if the LEA had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

Independent Educational Evaluations

If the school evaluates the student and the school believes the student doesn’t qualify for special education and related services but the parent does believe the student should qualify, the parent can write a letter, stating that she disagrees with the school’s evaluation and ask for an independent educational evaluation (IEE) to be paid for by the school. In response, the school is required to give one of two answers: One is to agree to pay for an independent evaluation by a practitioner of the parent’s choice (as long as the person is qualified to actually DO a psychoeducational evaluation) OR the school is required to file for a due process hearing to have a hearing officer rule that the evaluation done by the school was appropriate and that an independent educational evaluation is not necessary. (511 IAC 7-25-5).

However, as a practical matter, because an IEE is much less expensive than a hearing, most schools will agree to pay for the independent educational evaluation.

Then after the child has been deemed eligible, a reevaluation must be conducted every three years, unless both the school and parents waive that right, in writing. (511 IAC 7-25-6)

After eligibility is determined, committee devises educational plan

Once everyone agrees that a child needs special education and related services in order to make meaningful educational progress, then a group of individuals, including school employees and the parents, sit down together and write an Individualized Education Program (IEP) for the student. (511 IAC 7-27 et seq.)

This IEP will govern the services that the student receives.

There is no formula, or at least there is not supposed to be, for what students in specific categories get. In other words, all students with autism are not given the same program, even though they have the same disability. Some need services that others don’t, and some need more intensive services than others.

The IEP is supposed to be written with the child’s individual needs in mind.

The IEP should contain the following (511 IAC 7-27-6)

1. A statement of the student’s present levels of performance in academic, physical, social, behavioral areas.
   
2. Specific measurable goals and objectives for the student in all areas of need, such as academic, speech, behavioral, social skills, life skills, for example.
3. A statement of the special education and related services and supplementary aides and services to be provided to the student.
4. A statement about whether the student will participate in standardized statewide testing or other measures.
5. The date of initiation of services, length, frequency and duration of services.
6. A statement about whether the student will participate in extracurriculars.
7. A statement of how the student’s progress (or lack thereof) will be measured.
8. Whether the student needs Extended School Year (ESY) services. (These are services during school breaks, like summers, holiday breaks)
9. A statement of transition services (life after school).
10. A statement of what the student’s least-restrictive environment is. An example of a very restrictive placement would be a residential setting. An example of a less restrictive placement would be a general education classroom. The LRE is supposed to be determined on a child-by-child basis. It’s not a room, but a placement that works for the student.
11. A statement of transfer of rights to the student once he turns 18. (If the student is not competent to make decision about his educational services, then the parents should seek a guardianship so that they can continue to advocate for their child’s rights after age 18 because the student could be eligible for services through age 22.)
12. A statement of accommodations and modifications necessary for the student. Examples could include more time on tests, use of a calculator, fewer questions on tests, typing answers instead of handwriting them, having tests read to them and answering aloud, rather than in writing. There are hundreds of examples; these are just a few.
    
    

Related services

If a student needs related services in order to make meaningful educational progress, then those services should be included in the student’s IEP. Example of related services are: audiological services, counseling, early identification and assessment, medical services for evaluation, occupational therapy, orientation and mobility services, parent training and counseling, physical therapy, psychological services, recreation, rehabilitation counseling, school health services, social work services in schools, transportation, other supportive services. (511 IAC 7-28-1)

Implementation of the student’s IEP

The school is required to implement the student’s IEP, as written. The student’s Teacher of Record (TOR) is the one who is responsible for seeing to it that the IEP is implemented. (511 IAC 7-27-7)

It is illegal for a teacher to say: “I do not agree with this IEP, and I’m not going to do what it says.” If a teacher disagrees with an IEP and believes it’s inappropriate, he can also request a case conference committee meeting for the purposes of revising the student’s IEP. In fact, if the school employee believes that it needs to be changed, the school would have a duty to reconvene.

The same is true for the parent. Although the IEP is required to be revised at LEAST annually, if at any time during the school year the parent believes that the IEP needs to be revised, she can request that the case conference committee reconvene and revise the student’s IEP. The school must convene the case conference committee upon parental request.

Parental Absence/Incompetence

Under the old federal law and the current state law, the school couldn’t test a student for eligibility for special education and related services unless written parental permission was given (511 IAC 7-25-4). (Sometimes this is a problem for a parent who doesn’t want her child to be labeled as having special needs, thinking it was more appropriate not to receive services than to possibly be stigmatized by his peers and teachers.)

Under the new federal law, a school can evaluate a student without the consent or cooperation of the parent. However, the school still cannot provide special education and related services to the student unless the parent has agreed to allow that – or unless the school has taken the parent to a due process hearing to have a hearing officer impose orders.

If the school cannot identify a parent, cannot find a parent or the student is a ward of the state, the school can get an “educational surrogate parent” assigned for the child to stand in the place of the parent in terms of making educational decisions for the student. This surrogate parent means a person trained and appointed to represent a student with a disability in matters relating to the provision of a free appropriate public education (FAPE), including identification, evaluation and placement. The individual is appointed in accordance with 511 IAC 7-24.

The school is required to maintain a system to assign educational surrogate parents who has no conflict of interest and who will be charged with working to ensure that the student receives a free appropriate public education.

Mechanisms to Resolve Disputes

Case conferences (511 IAC 7-27, 7-17 and 7-29). This is a committee consisting of several individuals from the school and the parent(s). If it’s the student’s first case conference or it’s a case conference held after the conducting of a psychoeducational evaluation by the school, then the school psychologist must attend.

Mediation (511 IAC 7-30, 511 IAC 7-17-51, 511 IAC 7-22)

Mediation is something the school is required to tell the parent about when the parent requests a hearing, though a school is not required to participate in a mediation just because a parent wants to, and vice versa.

With a mediation, the parent and school would sign an agreement to seek a mediation on a form devised by the Indiana Department of Education. The DOE would choose a mediator for the process, and it works much like mediation in other areas of law, though attorneys on both sides are strongly discouraged by the Indiana Department of Education from attending these special education mediations. The school picks up the cost of the mediator’s fee.

Complaints (511 IAC 7-17-15, 511 IAC 7-30)

With a complaint investigation, an individual employed by the Indiana Department of Education would interview the parents and the school about what happened (or not), gather documents and issue a decision and corrective action, if the law was violated. This process costs parents nothing. Results of complaint investigations are posted at http://ideanet.doe.state.in.us/exceptional/speced/complaint_investigations.

Due process (511 IAC 7-17-32 and 511 IAC 7-30-3)

With due process, an independent hearing officer is assigned from a rotating list kept by the Indiana DOE. This individual would conduct an administrative hearing and issue a decision on whether the child’s substantive or procedural due process rights in Article 7 and the IDEA have been violated.

Indiana’s special education law mirrors the IDEA, though there are a few minor differences. The cost of the hearing is borne by the school, including the transcript, hearing officer’s fees (although Indiana’s DOE states strongly on its website and if you should inquire, that the hearing officers, although they are paid by the schools, are NOT employees of the school), their own attorney, and if the parent prevails, the school picks up the attorney costs for the parent.
This attorney fee shifting occurs because these due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in both the IDEA and Article 7.

The federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the Indiana Department of Education. However, as a practical matter, more often than not, the process takes two to three months to get the decision in hand because it requires the coordination of the schedules of two attorneys and a hearing officer, with the average hearing lasting three days.

The IHOs in Indiana are well-versed in special education laws and various areas of disabilities. They include private practitioners with special interests in this area of law and psychology professors at various Indiana colleges and universities. Most have been serving as hearing officers for a number of years, though a new crop of four hearing officers is currently being trained by the Indiana DOE.
BSEA, federal or state court

After the IHO renders a decision, either party may appeal that decision to the Board of Special Education Appeals (BSEA) within 30 days, unless a request for an extension of time is granted. Then the opposing party has 10 days to respond, unless an extension is granted.

BSEA decisions are posted online at http://ideanet.doe.state.in.us/legal/appeals.html.

Suspensions/Expulsions

Removal of a special needs child from school for misbehavior is a different proposition than for a regular education child.

A student with a disability may be suspended for up to 10 consecutive school days for misconduct. The school doesn’t have to provide any educational services during the first 10 days of suspension in a school year. The school may suspend a student for up to 10 consecutive school days for each separate incident of misconduct. However, when the number of days of suspension in a school year reaches the 11th day, the school must provide educational services to the student and must convene a case conference committee meeting within 10 business days of the 11th day of suspension to develop a plan for an assessment of the students behavior and review and/or revise the student’s existing behavior plan.

A student with a disability may be expelled. However, before an expulsion can occur, the school must notify the parent of the decision on the day the decision is made, provide the parents with a copy of their notice of rights, convent a case conference committee within 10 school days of the decision to expel the student and conduct a manifestation determination.

This determination means the committee looks at whether the behavior was caused by the child’s disability or whether it was a willful choice not caused by the disability.

If the behavior was caused by the child’s disability, then that cannot serve as a basis for expulsion.

If the behavior was not caused by the child’s disability, then the child may be expelled, but educational services must be provided to the child so that he or she can continue to make educational progress.

However, parents who disagree with this decision can request an expedited due process hearing.

Finally, a child who has not yet been identified by the school as having a disability but who is being suspended for more than 10 days or expelled can invoke the protections of the IDEA and Article 7 if the school knew or should have known that the child had a disability but failed to evaluate the child and failed to provide appropriate educational services.

What communities can be doing

1. Parent training and education
   
2. Setting up and implementing strong advocates system
   
3. Courts should rely more on schools to provide the services that they’re already required to provide, rather than using the courts as the student’s “behavior intervention plan.”
   
4. Support public defender agency’s endeavors to set up a program to help parents of special needs kiddos to ensure federal and state rights are enforced.
   

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