Indiana State Laws Governing Special Education Law

Indiana laws governing special education law -- Title 511, Article 7
To download a copy of the Article 7 that went into affect Aug. 13, 2008.
The new Notice of Procedural Safeguards is located at
http://ideanet.doe.state.in.us/exceptional/speced/laws.html

There were several significant changes made to Indiana's Article 7, most of which were not seen by most parent/child rights organizations as positive changes for Hoosier children.

Some of the most significant changes are as follows:

Change of Placement Despite Parental Disagreement

Under the old Article 7, a school could not change the placement of a student without either getting parental consent OR filing for a due process hearing against the family. Under the new Article 7, specifically Section 7-42-8, the school can propose and actually implement a change in placement for a student EVEN IF THE PARENT DISAGREES unless the parent takes one of the following actions within ten instructional days:
(1) requests a due process hearing,
(2) initiates mediation, or
(3) requests and participates in a meeting facilitated by an authorized official of the school corporation.

If a parent acts within the ten days, the school must continue to implement the previously agreed upon IEP as the child’s "stay put" placement.

The school must provide written notice of its proposal or refusal to change the disability label, placement or services of a student, describe the school's proposed or refused action, explain the school's rationale and a description of all evaluations, reports, procedures considered as a basis for the school's action or refusal to act.  The student's IEP may be part of the written notice.  The school may provide the written notice at the case conference meeting or may mail the notice to the parent.  The notice must be received by the parent no later than ten business days after the date of the case conference meeting.  Upon receipt of this notice, the parent has ten instructional days to request a hearing, mediation, or a meeting with the relevant school official.

***IMPORTANT***** Because the ten days runs from the date of written notice,
it will be important for parents to keep postmarked envelopes and record dates of receipt of written notice if not provided at the case conference.  Since the student's IEP may be part of the written notice, parents should verify that the school's documentation is intended to be the complete written notice.  Parents need to be aware that the timelines include a mix of "business days" and "instructional days" (a day or part of a day students are expected to be in attendance).  Parents should confirm which school administrator(s) are considered the appropriate one(s) to facilitate a meeting regarding disputed changes to a student's IEP.  Presumably, the challenged IEP’s implementation remains stayed if a meeting or mediation is unsuccessful and the parent must ultimately request a hearing. There is no case law on this point yet because the revised Article 7 is so new.

BSEA and Stay Put

Under the old Article 7, the student’s stay put placement was what the hearing officer said it was, meaning if a hearing officer ordered a private placement for a student, that placement remained the student’s stay put placement through any appeals to the BSEA and federal court.

So, even if the BSEA reversed the decision of the hearing officer who was trained, chosen and assigned by the Indiana Department of Education, the student would still enjoy the benefit of the change.

Under the new Article 7, the student’s stay put placement is what the BSEA says it is.

Specifically, 7-45-9(r) says: “If, as a result of the board's review, the board's decision concurs with the parent's contention that a change of placement is appropriate, the placement ordered by the board shall be treated as a placement agreed upon by the parent and the public agency under section 7(u) of this rule.”

This change may not seem significant unless you know a little about the history of the BSEA’s decisions.

Since 1997, the BSEA has reversed a decision of a hearing officer to make the decision favor of a parent only ONE time, and in that case, the school failed to file a response to the parent’s appeal, making it a default decision. That case is a decade old and is S.M. v. Brown County School Corp., Article 7 hearing No. 1077.98. It was not a private placement case.

However, by contrast, in cases where the parent has won a private placement from the hearing officer and the school has appealed that aspect of the decision, most of those decisions have been reversed to take away the ordered private placement and put the child back in the public school, thereby making the entire hearing process a total waste of time and money for the family.

Now, however, the student could win at hearing and have the BSEA take away the award of the private placement, as the BSEA has done numerous times since 1997, and that reversal would end up being the child’s stay-put placement.

The BSEA has reversed hearing officer private placement or private services awards in the following cases:
--  (L.N. v. Greater Clark County Schools and Greater Clark County Special Education Cooperative, Article 7 hearing No. 1039.98) (Note: The U.S. District Court, Southern District of Indiana, found the BSEA’s actions inappropriate in reversing this case and restored the IHO’s decision in favor of the parents in this matter). Payment for private school services ordered by hearing officer and reversed by BSEA.
-- (R.T. vs. Duneland School Corp. and Porter County Education Interlocal, Article 7 hearing No. 1119.99). Payment for private school services ordered by hearing officer and reversed by BSEA.
-- (J.K. vs. MSD Southwest Allen County Schools and Smith-Green-West Allen Special Education Cooperative, Article 7 hearing No. 1388.04). Payment for private school services ordered by hearing officer and reversed by BSEA. Federal court affirmed BSEA because deference is given to the BSEA decision, even when wrong.
-- (A.D. vs. Clay Community Schools, Article 7 hearing No. 1373.04). Payment for private school services ordered by hearing officer and reversed by BSEA. Federal court affirmed BSEA because deference is given to the BSEA decision, even when wrong.
-- (L.B. vs. Greater Clark County Schools and Clark County Special Education Cooperative, Article 7 hearing No. 1502.05). Payment for private school services ordered by hearing officer and reversed by BSEA.
NOTABLY, there is not one single case where the BSEA ordered a private placement when the hearing officer did not. One hundred percent of the BSEA’s reversals in private school placement cases have gone against the student.

As a result, if the BSEA continues its current track record of almost always reversing private placement parent wins, when that issue is appealed, this change in Article 7 will be a huge detriment to students.

Of course, the individuals who devised this seemingly innocent-looking change to Article 7 knew this when they wrote it and hoped that families of students with disabilities wouldn’t notice it or understand what a deeply disturbing change it was.

Transitional IEP now required
Although the law has always required transition planning, and thus this is not a new requirement under the law, the need for a transitional IEP is specified with more particularity in the revised Article 7.

IEPs must include both academic and functional goals. 511 IAC 7-42-6(f).  A "transitional IEP," that specifically addresses transition to adult life, must now be written when the student becomes fourteen years of age or enters the ninth grade, whichever occurs first.  511 IAC 7-43-4(h).  The definition of "transition services" is expanded to require community experiences, development of employment, independent living skills, and other adult living objectives in addition to instruction and related services.  511 IAC 7-32-100. Before a student receives a diploma or certificate of completion or ages out of special education at age 22, the school must provide the parent or student a summary of performance that describes the student's academic achievement and functional performance and includes recommendations to assist the student in meeting post secondary goals. 511 IAC 7-43-7.

Required Participants Can be Waived

A parent and school may agree in writing to excuse a member's attendance at the case conference for all or part of the meeting.   See 20 U.S. C. 414(d); 511 IAC  7-42-3(h). Any member may write and submit a written opinion as an addendum to the IEP that will be included as part of the student's record.  Changes to an IEP may be made without a case conference if the parent and school so agree.  The IEP must include services based on peer-reviewed research to the extent practicable. See 20 U.S.C. 1414(d); 511 IAC 7-42-3(h).

Note:  Sometimes parents can be strong-armed into waving the participation of someone who they think is vital by the school springing the information on them just before or during the meeting, by saying that the parents can elect to either waive the person’s participation or reschedule the meeting to another day.

Given that most parents would have to take a day off work for the IEP meeting, taking yet another day off so that the individual could attend is sometimes an unattractive or impossible choice.

Parents have always had a right to write their own version of the discussion notes or add a document of their own to the case conference minutes.

This is important in situations where parents find that the minutes in their case conferences do not accurately reflect the discussion, leave out the parent’s opinions or have a self-serving tone.

Evaluation Timelines Changes:
Although this was already required under federal law, evaluations must examine what a student can do academically, functionally, and developmentally.   511 IAC 7-32-6, 7-32-30.

New timelines have been established under 511 IAC 7-40-8(e).  If a parent requests an evaluation, the school must agree or refuse to evaluate within ten instructional days.  An initial evaluation must be conducted within fifty instructional days from the date of written parental consent.  Under Revised Article 7, a school must consider re-evaluating the student every three years, but need not re-evaluate if both the school and parent believe it is unnecessary.  When proposing or refusing a re-evaluation, the school must provide the parent detailed written notice, including their right to request a due process hearing to challenge the school's decision.  511 IAC 7-40-8.  A parent is entitled to only one independent evaluation at public expense each time the school conducts an evaluation.

NOTE: Schools will sometimes pressure parents to waive evaluations because they are overbooked on work to be done and this will cut the strain on staff resources. Generally speaking reevaluations are important tools to objectively measure how your child is doing. Having this information is important to determining whether your child is making progress or regressing. Do not waive your right to a re-evaluation lightly.

Transfer of Rights at Age 18

When a student turns age 18, he or she makes educational decisions unless the parent or other person has become the student's court appointed guardian.  Under new Article 7, the adult student can appoint his or her parent as educational representative to make decisions.  511 IAC 7-43-6.