Wyoming is Current Stop on Jim Gerl 2001 Special Education Law Tour

I am at a fantastic special education Symposium in Lander, Wyoming. This is the current stop on the 2011 Jim Gerl special education law tour.

There were two great panels yesterday. The first was on Section 504. The second was on Seclusion and Restraints.

I have also had the chance to catch up with some old friends and a chance to meet some more readers of the blog.

Excellent conference.
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Special Education Law 101 - Part IX

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This is the most recent post in the continuing series that is meant to be an introduction to special education law.  In today's post we will be discussing discipline of students with disabilities.  People often ask why disciplinary actions are regulated by the special education law.  The reason is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law.  

                                                   Discipline Issues

The IDEA imposes special rules that govern the discipline of students with a disability.  The basic rule is that a special education student may not have her placement changed (i.e., suspensions of more than 10 days or expulsion) for conduct that is a manifestation of her disability.  IDEA, § 615(k)(1)(F).  If the behavior is not a manifestation of the student’s disability, the student may be disciplined in the same manner and for the same duration as children without disabilities.  IDEA, § 615(k)(1)(C).

One exception is that, regardless of manifestation, the schools may remove a student to an interim alternative educational setting,  sometimes referred to as “IAES,” for up to 45 school days if (1) the student possesses a weapon at school; or (2) the student possesses or uses or sells illegal drugs at school; or (3) the student has inflicted “serious bodily injury” upon another person while at school.  IDEA, § 615(k)(1)(G).  The schools may also ask a hearing officer to change the placement of a student with a disability to an IAES if remaining in the current placement is substantially likely to result in injury to the student or others.  IDEA, § 615(k)(3)(A) and (B).

              Another cardinal rule in the discipline area is that regardless of whether the conduct of a student was a manifestation of the student’s disability, where a student with a disability is removed from his current placement, the schools must continue to provide educational services to ensure FAPE for the student and to enable the student to continue to participate in the general curriculum although in another setting.  IDEA, § 615(k)(1)(D).  See generally regarding discipline issues, 34 C.F.R. §§ 300.530 – 300.537.

In District of Columbia v. Doe ex rel Doe 611 F.3d 888, 54 IDELR 275 (DC Cir 7/6/10) DC Circuit ruled that HO did not exceed his authority where he reduced a disciplinary suspension. HO reduced a 45 day suspension to an 11 day suspension noting the trivial nature of the infraction and finding that the more lengthy suspension denied FAPE to the student.

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Seattle is Still Fantastic

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Last week was the Seattle Academy stop on the Jim Gerl 2011 Special Education Law Tour.  As usual, I had a good time.  It is always great to see other special ed ALJs and HOs, as well as due process coordinators.  I renewed many old acquaintances and I made a lot of new friends.

The best part was that two readers of the blog who are quite famous in Special Ed circles, let me know that they would be there, and I was able to have a nice dinner with them.  I'm always interested in meeting the many readers of this blog.  It was fun.

As usual, my fellow Pennsylvania hearing officers took good care of me.  The Academy had many good substantive sessions as well as some less attractive exercises where we tried to agree upon changes to IDEA.  What is the old saying never ask a room full of lawyers to say a few words...  Arguments ensued... feelings were hurt... A few agreements were reached....  Fur covered all walls.  But seriously, it was an interesting discussion.

The seafood was very good, and you cannot find better coffee than the Seattle variations. Many of the my fellow special ed law junkies were presenting.  Another successful stop on the tour!

The other stops are listed on the lefthand side of the blog.  If you are going to be nearby, please look me up.

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Special Education Law 101 - Part VIII

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This is the most recent post in the continuing series on  an introduction to special education law.  In today's post we will be discussing the transition services that must be given when a special education student nears graduation.


              The IDEA defines transition services as a coordinated set of activities designed to be a results oriented process that focuses upon the individual child’s needs, strengths and preferences.  IDEA, § 602 (34).  Not later than the first IEP to be in effect when the child is 16 years old and each year thereafter, the IDEA requires that the IEP contain measurable postsecondary goals; the transition services needed to achieve those goals; and beginning at one year before the child reaches the age of majority, a statement that the student has been informed regarding transfer of rights.  IDEA § 614 (d)(1)(A)(i)(VIII).  34 C.F.R. § 300.43, 300.320(b) Policy 2419, Ch. 5, § 2(F).
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Independence Day

Independence Day!Image by CR Artist via FlickrHappy Independence Day!

 The Fourth of July is a big holiday for our country, and these days we really need a big holiday. Independence Day is also a time to reflect on the concept of independence. 
For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with disabilities for independent living. IDEA, Section 601(d)(1)(A). 
Before passage of the EHA, the predecessor of the IDEA, in 1975, education of children with disabilities, who were then called "handicapped," was iffy at best. According to the legislative history of the EHA, which is quoted in the seminal Rowley decision by the Supreme Court, millions of children with disabilities were then either totally excluded from school or were warehoused until they were old enough to drop out. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). At the time, it was estimated that of the eight million children who required special education, only about 3.9 million were receiving an appropriate education. Bd. of Education v. Rowley, 458 U.S. 176, 191, 103 LRP 31848 (1982). 
These numbers are shocking. 1975 was not long ago. Yet we have made real progress since then. Special education may have its detractors, but it is now widely accepted. Very few children with disabilities are now excluded from school. Some still do not receive an appropriate education, but there are now remedies available when that happens. We have come a long way!
I realize that we are not finished. I do not advocate the display of a banner reading "mission accomplished." But as we look forward on this Independence Day to how we can do a better job of educating children with disabilities and preparing them to live independently, let us also look back for a moment and congratulate ourselves on the excellent progress we have made in what in public policy terms is truly a very short time. 
Happy Independence Day.

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Special Education Law 101 - Part VII

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This is another post in the ongoing series introducing readers to special education law's key concepts.  Today's post is about related services. This phrase is almost always preceded by "special education and..."

Let me know if you are enjoying this series. For some it is an introduction.  For others it is a chance to brush up on the key concepts...

Related Services

The IDEA defines related services as follows:

(A)  IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education…

(B)  EXCEPTION—The term does not include a medical device that is surgically implanted, or the replacement of such device.
IDEA, § 602(26).  See, 34 C.F.R. § 300.34.

              The issue of related services has resulted in two decisions by the United States Supreme Court.   The first decision was  Irving Independent Sch. Dist. v. Tatro  468 U.S. 883, 104 S.Ct. 3371, 555 IDELR 511 (1984).  The Court affirmed the Court of Appeals holding that a procedure known as clean intermittent catheterization was a related service because the student could not attend school without it and, therefore, without the procedure she could not benefit from special education.  Tatro, supra.  The Supreme Court also affirmed the holding of the Court of Appeals that clean intermittent catheterization is not exempted by the medical services provision because the procedure did not have to be performed by a doctor, it could be done by a layperson with an hour of training. Tatro, supra.

              The second decision was Cedar Rapids Community Sch. Dist. v. Garret F.  526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999).  In this case, the Supreme Court held that urinary bladder catheterization and suctioning of tracheotomy plus various monitoring was a related service.  Garret F., supra.  Applying the “bright line” test of the Tatro decision, the Court held that because the related services did not have to be performed by a physician, the medical services exclusion did not apply and the schools were required to provide the services for the student.  Garret F., supra.  The Court specifically and emphatically rejected the argument raised by the schools that the cost of providing the services was a defense.  Garret F., supra. 

              In Marshall Joint Sch Dist No.2 v CD by Brian & Traci D 616 F. 3d 632, 54 IDELR 307 (7th Cir 8/2/10), the Seventh Circuit  concluded that the student did not need specialized instruction.  Any need for PT or OT, therefore, was not relevant.
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