Special Education Law 101 - Part V

BR 101Image via Wikipedia
           Common Issues in Due Process Hearings

Under the IDEA, a due process hearing may be requested with respect to any matter relating to the identification, evaluation or placement of the child, or of the provision of FAPE.  IDEA, § 615(b)(6).  The following are among the issues that are common in due process hearings.


                   a.      Identification & Eligibility

Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6).  See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.  

In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services.


Some important circuit court decisions:

Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D    616 F.3d 632, 54 IDELR 307 (7th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE.  The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.

Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7)  The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for  special education.  The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations.  Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA

Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7)  The Ninth Circuit applied the Rowley standard to an eligibility issue.  Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEd.  NOTE:  One legal scholars has questioned whether the Rowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202

Related articles
Enhanced by Zemanta
Labels: , , , , , , ,

More Fun With Numbers: The Condition of Education 2011

National Center for Education Statistics logo....Image via Wikipedia
 
 
 
Time for some statistics, or as we used to say in the old neighborhood, "satistics."  The National Center for Educational Statistics, an arm of the United States Department of Education, has released its annual report, "The Condition of Education 2011."  It is huge.  If you like data, and educators collect all kinds of data, this report is for you

You can read the entire report or sections here. Please take a look.  Thanks to our friends at NICHCY, the national clearinghouse for special ed information for the heads up about the report.  The document has stats about education of all kinds not just special ed.  Here are some highlights: 
 
The number of kids receiving special education in 2008-2009 was 6.5 million, about 13.2% of all public school kids.  I know that the next sentence is going to cause my buddy, Dr Data, to send me an email, but the percentage has decreased ever so slightly each school year since 2004-2005 when it was 13.8% of all children in school.

The LRE numbers are also interesting.  In 2008-2009, the 5 of special ed kids in the general education environment at least 80% of the time is 58%.  Those in gen ed 40-79 % are 21.7%.  Those in gen ed 40% of the time or less are 15.1%.  3% are in separate schools.  See Table A-7-2 for more LRE data, or to compare across school years or by categories of disability.

Reproduced below is Table A-7-1 which shows the number and percentage of 3 to 21 year olds served under IDEA by type of disability:




Table A-7-1. Number and percentage distribution of 3- to 21-year-olds served under the Individuals with Disabilities Education Act (IDEA), Part B, and number served as a percentage of total public school enrollment, by type of disability: Selected school years, 1980–81 through 2008–09—Continued
Type of disability
1980–81
1990–91
1995–96
2000–01
2004–05
2005–06
2006–07
2007–08
2008–09
Number served as a percentage of total public school enrollment2
All disabilities
10.1
11.4
12.4
13.3
13.8
13.7
13.6
13.4
13.2
Specific learning disabilities
3.6
5.2
5.8
6.1
5.7
5.6
5.4
5.2
5.0
Speech or language impairments
2.9
2.4
2.3
3.0
3.0
3.0
3.0
3.0
2.9
Intellectual disability
2.0
1.3
1.3
1.3
1.2
1.1
1.1
1.0
1.0
Emotional disturbance
0.8
0.9
1.0
1.0
1.0
1.0
0.9
0.9
0.9
Hearing impairments
0.2
0.1
0.1
0.2
0.2
0.2
0.2
0.2
0.2
Orthopedic impairments
0.1
0.1
0.1
0.2
0.2
0.1
0.1
0.1
0.1
Other health impairments
0.2
0.1
0.3
0.6
1.1
1.2
1.2
1.3
1.3
Visual impairments
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
Multiple disabilities
0.2
0.2
0.2
0.3
0.3
0.3
0.3
0.3
0.3
Deaf-blindness
#
#
#
#
#
#
#
#
#
Autism
—
—
0.1
0.2
0.4
0.5
0.5
0.6
0.7
Traumatic brain injury
—
—
#
#
#
#
0.1
0.1
0.1
Developmental delay
—
—
—
0.4
0.7
0.7
0.7
0.7
0.7
Preschool disabled1
†
0.9
1.2
†
†
†
†
†
†




Related articles
Enhanced by Zemanta
Labels: , , , , , , , ,

Does FAPE trump LRE? Trick(y) Question

Special needs education transport services in ...Image via Wikipedia
 My most recent post in the Special Education Law 101 series now running on the blog concerned least restrictive environment.  LRE is one of the most misunderstood concepts in the field of special education law. Some people in audiences where I have given speeches are amazed that the words "inclusion" and "mainstreaming" are not in IDEA or the regulations. 

Mainstreaming is a movement or a goal, but not a legal requirement.  There is clearly a preference for mainstreaming under IDEA, but it is not required that every child be in a regular education classroom. The requirement is the least restrictive environment appropriate for an individual child.

Last summer I was on a panel at a conference addressing this issue, and the question was asked does the FAPE requirement trump the LRE requirement?  The panel agreed that FAPE does trump LRE.  I need to revise my answer in retrospect.  FAPE does not trump LRE.  FAPE trumps inclusion if they are in conflict.  But FAPE and LRE cannot technically be in conflict, because the LRE requirement only requires mainstreaming to the extent that it is appropriate for the child. If a child cannot be successfully educated in the regular classroom with the use of supplementary aids and services, LRE is someplace else.  So my revised answer is that FAPE does not trump LRE; they stand as the twin towers of special education law!

Any questions?
Related articles
Enhanced by Zemanta
Labels: , , , , , , , , ,

Special Education Law 101 - Part IV

Least TernImage by Alan Vernon. via Flickr
. The Requirement of LRE (least restrictive environment)

The IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”    IDEA, § 612(a)(5).  See, 34 C.F.R. §§ 300.114 to 300.119.

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance.  For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate.  Daniel RR v. State Board of Education 874 F.2d 1036,  441 IDELR 433 (5th Cir. 1989). 

     The Ninth Circuit has developed four factors which must be balanced to determine the LRE placement: (1) the educational benefits available to the student in a regular classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom; (2) the non-academic benefits of interaction with children who were not disabled; (3) the effect of the student's presence on the teacher and other children in the classroom; and (4) the cost of mainstreaming the student in a regular classroom. Sacramento City Sch Dist v. Rachel H by Holland 14 F.3d 1398, 20 IDELR 812 (9th Cir. 01/24/1994).

          The Fourth Circuit has stated the rule this way: “The Act's language obviously indicates a strong congressional preference for mainstreaming. Mainstreaming, however, is not appropriate for every handicapped child …The proper inquiry is whether a proposed placement is appropriate under the Act. In some cases, a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming… In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act. Framing the issue in this manner accords the proper respect for the strong preference in favor of mainstreaming while still realizing the possibility that some handicapped children simply must be educated in segregated facilities either because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, or because the handicapped child is a disruptive force in the non-segregated setting.”  DeVries v. Fairfax County Sch Bd 882 F.2d 876, 441 IDELR 555 (Fourth Cir. 1989)

LRE and FAPE are the twin towers of special education law.





Related articles
Enhanced by Zemanta
Labels: , , , , , , ,
Subscribe to: Posts (Atom)