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SD Advocacy Services
221 South Central Ave.
Pierre, SD  57501
(605) 224-8294
In-state only:
(800) 658-4782

Field offices located in:
Rapid City, Sioux Falls,
and Yankton
Bobby Approved (v 3.2)
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South Dakota Services Publications
Advocating the Rights of South Dakotans with Disabilities


INTRODUCTION TO PUBLICATIONS
I.D.E.A. Outline Table of Contents
I.D.E.A. Outline - pages 1-18
I.D.E.A. Outline - pages 19-35
I.D.E.A. Outline - pages 36-53
I.D.E.A. Outline - pages 54-70
MENTAL HEALTH ADVANCE DIRECTIVES*
A GUIDE TO RIGHTS for Individuals With Mental Illness
YOUR RIGHTS as a Client of A Mental Health Center*
Emergency Involuntary Commitment Procedure*
ECT--Informed Consent/Know Your Rights
WRITof HABEAS CORPUS--General Information
RIGHTS INFORMATION for a Person Under the Age of 18 Residing in an Inpaatient Facility*
TRUSTS: Family Considerations for the Member with a Disability
INVOLUNTARY COMMITMENT UNDER 18*
GUARDIAN & CONSERVATORSHIP: Family Considerations for the Member with a Disability
VOLUNTARY ADMISSION UNDER 18*
VOLUNTARY ADMISSION
CAP--Client Assistance Program *
KNOW THE FACTS--Stigma of Mental Illness*
PATBI--Protection & Advocacy Traumatic Brain Injury Program
PABSS--Protection & Advocacy for Beneficiaries of Social Security Program
PAIMI-Protection & Advocacy for Individuals With Mental Illness
PADD-Protection & Advocacy Developmental Disabilities
PAIR-Protection & Advocacy Individual Rights
Students in Crisis
Mental Illness Hearing Rights
INTRODUCTION TO PUBLICATIONS
by

The listing of publications found in this section of our web site is an on-going effort by SD Advocacy Services to keep the public apprised and current on topics and issues relating to individuals with disabilities. The publications are created by staff of SDAS. If you have any questions regarding any of the publications, please call SDAS at 1-800-658-4782.

Those publications with and * are also available in Spanish.

Back to Publications
I.D.E.A. Outline Table of Contents
by John A. Hamilton

EDUCATIONAL RIGHTS OF CHILDREN WITH DISABILITIES
UNDER THE
INDIVIDUALS WITH DISABILITIES EDUCATION
IMPROVEMENT ACT OF 2004
AND
SECTION 504 OF THE REHABILITATION ACT OF 1973

TABLE OF CONTENTS

I. Introduction 1
A. Sources of Law 1
B. Definitions and Acronyms 1
II. Statutory Framework 3
A. Individuals with Disabilities Education Improvement Act of 2004 or “IDEA” 3
B. Section 504 of the Rehabilitation Act of 1973 4
III. Eligibility, Identification and Program Responsibility 5
A. Eligibility 5
1. IDEA 5
2. §504 6
B. Age Ranges 7
C. Identification of Students with Disabilities (Child Find) 7
D. Local and State Program Responsibility 8
1. Local Education Agencies 8
2. State Education Agency 8
IV. Evaluations and Evaluation Safeguards 9
A. Referral 9
B. Evaluations Required 9
C. Notice and Consent for Evaluation 9
D. Nature of the Evaluation 10
E. Valid, Unbiased Testing and Evaluation Methods 11
F. Interpretation and Use of Evaluation Results 12
G. Reevaluation 13
H. Additional Requirements for Evaluation and Reevaluation 13
I. Independent Educational Evaluations (IEE) 14
V. Programming and Placement Decisions 15
A. “Free and Appropriate Public Education” 15
1. IDEA 15
a. Special Education 15
b. Related Services 16
2. §504 18
3. “Free” Means Free 18
B. Content of Individualized Education Program 18
C. Effectiveness of the Program in Meeting the Child’s Needs (What is “Appropriate?”) 23
1. IDEA 23
2. §504 24
D. Least Restrictive Environment/Integration/Mainstreaming/Inclusion 25
1. IDEA 25
2. §504 27
E. Full Educational Opportunity 28
1. IDEA 28
2. Section 504 28
F. IEP Development and Parental Participation 29
1. IEP Team Participants 29
2. Parent Participation 30
3. IEP Team Attendance/Amendments 30
4. IEP Development 31
5. Consideration of Special Factors 32
6. Review and Revision of IEPs 32
7. Placement 32
G. Transition Services Under IDEA – Requirements 33
1. What Does the IDEA Require? 33
2. What are Transition Services? 33
a. Definition 33
b. Child’s Role 34
c. Services Required 34
3. When Must Transition Services be Provided? 35
4. Who Provides Transition Services? 35
5. What If A Participating Agency Does Not Provide Agreed Upon Services? 35
6. How are Transition Needs Determined? 35
7. Who Should be Part of the IEP Team When Transition is Addressed? 36
H. Requirements for Regular Education Teachers/Service Providers 37
I. Extended School Year (ESY) Services 37
J. Special Rules for Children Who Transfer School Districts 38
K. Notice and Consent for Placement Changes 39
VI. Parent Placements in Private/Parochial Schools When the Public School has Offered FAPE (When FAPE is Not at Issue) 39
A. Child Find 39
B. Expenditures 39
C. Services 40
D. Appeal Rights (or lack thereof) 41
E. Restrictions on Funds, Personnel 41
VII. Procedural Safeguards 41
A. Records Access/Right to Participate in Meetings 41
B. Independent Educational Evaluations 41
C. Notice 42
D. Procedural Safeguards Notice 42
E. Complaint Process (Non-Due Process) 43
1. IDEA State Complaint Procedures 43
2. Section 504 Complaints 45
F. Due Process Complaint 45
1. Subject Matter/Timelines 45
2. Due Process Complaint Notice 46
a. Requirements 46
b. Challenging Sufficiency of Complaint Notice 46
c. Amending Due Process Complaint Notice 46
d. Answering Complaint/Late Prior Written Notice 47
G. Mediation 47
H. Due Process Hearing 48
1. Resolution Meeting Process 48
2. Due Process Hearing Specifics 49
I. Appeal/Impartial Review 51
J. Civil Action 51
1. Right to Bring/Timeline 51
2. Standard of Review 51
3. Exhaustion of Administrative Remedies 52
K. Child’s Placement Status During Administrative and Judicial Proceedings 52
L. Remedies 52
1. Reimbursement 53
a. Case Law 53
b. Unilateral Placements by Parents at Public Expense (Statutory Provisions) 53
2. Compensatory Education 54
3. Monetary Damages (Compensatory/Punitive) 55
M. Attorneys’ Fees 55
N. Surrogate Parents 56
O. Transfer of Rights at Age of Majority 57
P. Graduation Requirements 57
Q. Discipline Procedures 58
1. Change of Placement 59
2. Authority of School Personnel 59
3. Services 60
4. Manifestation Determination Review 60
5. Special Circumstances 61
6. Notification 62
7. Appeals 62
8. Interim Alternative Educational Setting 64
9. Placement During Appeals (Stay Put) 64
10. Expedited Due Process Hearing 65
11. Protections for Children Not Yet Eligible for Special Education and Related Services 65
a. General Rule 65
b. Basis of Knowledge 66
c. Exception 66
d. Conditions That Apply if no Basis of Knowledge 66
12. Referral and Action by Law Enforcement and Judicial Authorities 67
13. Definitions 67
R. Section 504 67

Back to Publications
I.D.E.A. Outline - pages 1-18
by John H. Hamilton

Partners In Policymaking

Education/IDEA & §504


Educational Rights of
Children with Disabilities
Under the
Individuals with Disabilities Education Improvement Act of 2004
And
Section 504 of the Rehabilitation Act of 1973

I. Introduction

A. Sources of Law

Individuals with Disabilities Education Improvement Act of 2004 (IDEA)
Federal Law (1975, 1983, 1986, 1990, 1997, 2004)
Federal Regulations (October 13, 2006)
State Law
State Administrative Rules
Court Decisions
Federal Policy Memos

Section 504
Federal Law
Federal Regulations
Court Cases
Federal Policy Memos

B. Definitions and Acronyms

The area of special education law has its own lingo, many definitions, and many acronyms. It is important to understand the terms to understand the law. For example:

The child with ED and OHI, not to mention an SLD, served by the LEA, filed a complaint with the SEA for failure to provide, as required in the IEP, PT, OT, ST, and AT in the LRE, as well for a failure to pay for an IEE, provide a FAPE, and conduct a manifestation determination before placing the child in an IAES, and conduct a FBA and create a BIP after doing so.

Did you catch all that? Here are just a few acronyms to get started with:

AT - Assistive Technology (services and devices)
BIP - Behavior Intervention Plan
ED - Emotional Disturbance (a disability category)
FAPE - Free Appropriate Public Education (public schools must provide under IDEA)
FBA – Functional Behavioral Assessment
IAES - Interim Alternative Educational Setting (where children suspended receive services)
IEE - Independent Educational Evaluation (a procedural safeguard)
IEP - Individualized Education Program (the written plan for services)
IFSP - Individualized Family Service Plan (provided to children 0-3 under Part C of IDEA)
LEA - Local Educational Agency (the local school district)
LRE - Least Restrictive Environment (where children should be receiving services)
OHI - Other Health Impairment (a disability category)
OT - Occupational Therapy (a related service)
PT - Physical Therapy (a related service)
SEA - State Educational Agency
SLD - Specific Learning Disability (a disability category)
ST - Speech Therapy (a related service – Speech-language pathology and audiology services)

Many of the above terms are defined or discussed throughout this outline. Some important terms (definitions) are not, yet are important to know.

Assistive Technology Device
“(A) In general -- The term ‘assistive technology device’ means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.
(B) Exception -- The term does not include a medical device that is surgically implanted, or the replacement of such device.” 20 U.S.C. §1402(1); 34 C.F.R. §300.5.

Assistive Technology Service
“Assistive technology service -- The term ‘assistive technology service’ means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes --
(A) the evaluation of the needs of such child, including a functional evaluation of the child in the child’s customary environment;
(B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child;
(C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(D) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
(E) training or technical assistance for such child, or, where appropriate, the family of such child; and
(F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child.” 20 U.S.C. §1402(2); 34 C.F.R. §300.6.

When a child with a disability is determined to require assistive technology, the child’s IEP must include not only the device, but any assistive technology services that are needed as well. Depending on how Assistive Technology Devices or Services are needed for a child with a disability, they could be included in an IEP as “special education,” “related services,” or as “supplementary aids and services” to facilitate education in the regular education classroom. 34 C.F.R. §300.105(a). The use of school-purchased assistive technology in a child’s home is permitted on a case-by-case basis if the IEP Team determines it is required in order for the child to receive a free appropriate public education. 34 C.F.R. §300.105(b)

Parent
“The term ‘parent’ means --
(A) a biological, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);
(B) a guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);
(C) an individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or
(D) a surrogate parent who has been assigned in accordance with 300.519 or section 1439(a)(5) of the Act.” 34 C.F.R. §300.30.

The biological or adoptive parent must be presumed to be the parent unless they do not have legal authority to make educational decisions. 34 C.F.R. §300.30(b)(1). If a judicial decree specifies a person to act as a parent, that person is the “parent” under this definition. 34 C.F.R. §300.30(b)(2).


II. Statutory Framework

A. Individuals with Disabilities Education Improvement Act of 2004 or “IDEA”

The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. §1400 et. seq. -- formerly known as the Education for All Handicapped Children Act or “EAHCA,” and the Education for the Handicapped Act or “EHA,” then the Individuals with Disabilities Education Act or “IDEA,” and often referred to as P.L. 94-142 -- provides for federal aid to reimburse state and local education agencies for a portion of the cost of providing special education and related services to students who need it. The federal regulations are contained at 34 C.F.R. §300.1 et. seq.

No state education agency (SEA) or local education agency (LEA) can receive such funding unless the SEA has submitted a plan covering all local education agencies within the state. Under this plan, education agencies are required to provide each child with a disability with a free appropriate public education (FAPE) specifically tailored to meet his or her individual needs. Also required are procedural due process safeguards in identification, evaluation, placement decisions, appropriate services, hearings, and appeals, as well as safeguards for student records related to this process.

IDEA is more than a funding statute. For state and local education agencies, it is both a source of funds and a source of obligations. Moreover, the Act guarantees parents and guardians of children with disabilities the right to secure the provision of a free appropriate public education through both administrative and judicial remedies. 20 U.S.C. §1415(f),(i)(2); 34 C.F.R. §§300.507 - 300.516.

[CAVEAT: This outline contains statutory changes from the recent amendments that went into effect July 1, 2005, and regulatory changes that went into effect October 13, 2006. The contents are subject to new federal policy interpretation and case law. All individuals must take caution to make sure they are using current law/regulations/interpretations.]

Stated goals of the IDEA 2004 included:

• Reduce paperwork;
• Reduce the number of children served;
• Reduce litigation;
• Increase school safety by improving a school’s ability to discipline children with disabilities; and
• Improve outcomes for children.

B. Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 is a civil rights statute designed to prohibit discrimination on the basis of disability in federally-funded activities. Schools receive no funding under §504. Section 504 as amended provides in relevant part that:

“No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefit of, or be subject to discrimination under any program or activity receiving federal financial assistance ...”

29 U.S.C. §794(a). [While this statute is actually §794(a), it is commonly referred to as “Section 504.”] Because virtually all local schools and school districts receive federal funds of some sort, §504 provides an additional tool for assuring that school-age children with disabilities receive the education to which they are entitled.

The U.S. Dept. of Education regulations implementing §504 in the preschool, elementary and secondary education context are contained at 34 C.F.R. §104.1 et. seq., and operate in two basic ways: (1) by generally prohibiting certain practices as discriminatory ones, see 34 C.F.R. §104.4(b); and (2) by compelling school districts and other recipients to take certain affirmative steps to ensure that students with disabilities receive an appropriate public education. See 34 C.F.R. §§104.31-39. As discussed further below, the latter include requirements for identification, provision of free appropriate public education, evaluation and placement, procedural safeguards, and non-academic services.


III. Eligibility, Identification, and Program Responsibility

A. Eligibility

1. IDEA

a. In General

For purposes of IDEA, the term “child with a disability” means:

“... a child ... with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, (referred to in this title as ‘emotional disturbance’), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities ... who by reason thereof, needs special education and related services.”

20 U.S.C. §1402(3) (emphasis added). The federal regulations also list the disabilities of “deaf-blindness” and “multiple disabilities” under the definition of “child with a disability.” 34 C.F.R. §300.8. Meeting the eligibility requirements of IDEA is a two-part test. The federal regulations further define each of these disabilities at 34 C.F.R. §300.8(c). South Dakota’s administrative rules further detail specific eligibility criteria. See ARSD §24:05:24.01.

The federal regulations emphasize that a child with attention deficit disorder or attention deficit hyperactivity disorder may fall under the category “other health impairment.” Specifically, “other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment.” 34 C.F.R. §300.8(c)(9) (emphasis added).

At a State’s discretion, “child with a disability” may also include 3 to 9 year olds who are “(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in ... physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) who, by reason thereof needs special education and related services.” 34 C.F.R. §300.8(b).

b. Specific Learning Disabilities

New statutory language was added in 2004 regarding eligibility under the specific learning disability category. It states that a local educational agency “shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures….” 20 U.S.C. §1414(b)(6). Implementation of this statute is contained at 34 C.F.R. §§300.307-.311. The “discrepancy model” had been exclusively used until this change. The regulations clarify that the State must adopt criteria for determining whether a child has a specific learning disability, and that the criteria must not require the use of a severe discrepancy between intellectual ability and achievement, but must permit the use of a process based on the child’s response to scientific, research-based intervention and may permit use of other alternative research-based procedures. 34 C.F.R. §300.307(a). A public agency must use the State criteria. 34 C.F.R. §300.307(b). There is quite a bit of detail provided in sections §300.309 (determining the existence of a specific learning disability), §300.310 (observation), and §300.311 (specific documentation for the eligibility determination).

South Dakota’s administrative rules regarding the evaluation and determination of the existence of a specific learning disability are contained at ARSD 24:05:24.01:18 and 24:05:24.01:19; and 24:05:25:07 through 24:05:25:13.01.

“Written Documentation of eligibility for specific learning disabilities - For a child suspected of having a specific learning disability, the documentation of eligibility shall contain a statement of … :

(8) If using the discrepancy model, the group finds that the child has a severe discrepancy of 1.5 standard deviations between achievement and intellectual ability in one or more of the eligibility areas, the group shall consider regression to the mean in determining the discrepancy; and

(9) If using the response to intervention model for eligibility determination, the group shall demonstrate that the child’s performance is below the mean relative to age or state approved grade level standards.” ARSD 24:05:25:12.

“Response to intervention model - School districts that elect to use a response to intervention model as part of the evaluation process for specific learning disabilities shall submit to the state for approval a formal proposal that at a minimum addresses the provisions in 24:05:25:12.” ARSD 24:05:25:13.01.

The State (Special Education Programs) has a technical assistance document on Eligibility, at: http://doe.sd.gov/oess/specialed/IEP/Original%20TA%20Guide2007MAIN.pdf.

Important issues are: 1) Given the 60-day (25 school days in South Dakota) timeline for initial evaluation, does this allow for enough time to determine if a child “responds to scientific, research-based intervention?” and how much time is needed? 2) What is “scientific, research-based intervention?” and 3) With State criteria in place that may allow either method to be used, does that mean the LEAs can decide which method to use on a child-by-child basis? Because “Response to Intervention” or “RTI” is still relatively new, it may take some time before there are clear answers.

c. IEP Override

South Dakota also has what is termed “IEP team override,” which allows the IEP team to find a child eligible for special education or special education and related services “because the student has a disability and needs special education even though the student does not meet specific requirements in this chapter.” This process is contained at ARSD 24:05:24.01:31.

2. §504

For purposes of §504, a protected “individual with a disability” is one:

“who i) has a physical or mental impairment which substantially limits one or more major life activities; ii) has a record of such impairment; or iii) is regarded as having such an impairment.”


29 U.S.C. §706(8)(b); 34 C.F.R. §104.3(j)(1). Virtually all children who meet IDEA eligibility criteria will fall within this definition and be protected by §504 as well. Like IDEA, the §504 regulations entitle children to a free appropriate public education, “regardless of the nature or severity of the person’s handicap.” 34 C.F.R. §104.33(a).

The §504 definition of an “individual with a disability,” however, is broader than the operative IDEA definition. A child who does not fall within the IDEA definition of “children with disabilities” may nevertheless be an “individual with a disability” protected by §504 and its implementing regulations.

Section 504 protects only “otherwise qualified” individuals from disability-based discrimination. For purposes of public preschool, elementary, and secondary school services, an “individual with handicaps” is “otherwise qualified,” and thus protected by §504, if he or she is: (1) of any age during which nonhandicapped persons are provided such services, (2) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (3) someone IDEA requires the state to provide with a free appropriate education. 34 C.F.R. §104.3(l)(1), (2), (3).

B. Age Ranges

States which accept federal monies under IDEA are required to serve all children with disabilities ages 3 through 21 years of age unless, with respect to the age group 3 through 5 and 18 through 21, this requirement is inconsistent with a state law or practice or a court order. This requirement includes children with disabilities who have been suspended or expelled from school. 20 U.S.C. §1412(a)(1); 34 C.F.R. §300.101. South Dakota interprets the age range to mean children are eligible for services through the end of the State fiscal year in which they turn age 21 (unless the child has graduated with a signed regular diploma). ARSD 24:05:22:04.01.

C. Identification of Students with Disabilities (Child Find)

Both IDEA and the regulations implementing §504 impose obligations upon state education agencies and local school districts to identify, locate, and evaluate children with disabilities. See 20 U.S.C. §§1412(a)(3); 34 C.F.R. §300.111; 34 C.F.R. §104.32. The 2004 amendments clarified that “Child Find” applies to children who are homeless or wards of the state. It also applies to children attending private schools, requiring each LEA to locate, identify, and evaluate all children with disabilities enrolled in private schools located in the LEA, including children from out-of-state. 34 C.F.R. §300.131. This means the district where the private school is located is responsible, not the district from which the child resides. [See this Outline at VI.]

D. Local and State Program Responsibility

1. Local Education Agencies

Under IDEA, local school districts are responsible for providing and maintaining appropriate special education programs and placements for children with disabilities in accordance with standards established by the state board of education. Each district must submit a plan to the state agency for approval. In general, a local school district may meet this responsibility in a variety of ways including by providing the necessary programs and related services itself; by arranging for the provision of programs and services by cooperative agreement or contract with one or more other local school districts, or with a county or joint vocational school district; or by arranging through cooperative agreement or contract with a non-profit agency for the provision of related services. See 20 U.S.C. §1413.

Early Intervening Services - The 2004 amendments added that local educational agencies may use up to 15% of federal funds for “early intervening services” for children grades K-12 who have not been identified as needing special education, but who need additional academic and behavioral support to succeed in a general education environment. 20 U.S.C. §1413(f). These services are intended to reduce the number of children who may later require special education services. Funds can be used for professional development for staff, evaluations, services and supports, and developing and implementing interagency financing structures. Children served under this provision can be referred for special education services at any time; however, no time-line is included for how long these services may be tried before a referral is made. The regulations provide further clarification, stating, “Nothing in this section shall be construed to either limit or create a right to FAPE under Part B of the Act or to delay appropriate evaluation of a child suspected of having a disability.” 34 C.F.R. §300.226. Students receiving these services have no due process rights under IDEA and are not entitled to FAPE. [Can a student receiving early intervening services be placed on a §504 plan?]

Section 504 imposes a number of requirements on local school districts, similar to IDEA.

2. State Education Agency

The state educational agency is ultimately responsible for a) insuring that all educational programs for children with disabilities, including those of local educational agencies and other state agencies, meet the requirements of federal law; b) monitoring and evaluating such programs and providing written complaint procedures; c) correcting deficiencies in program operations that are identified through monitoring and evaluation; d) insuring evaluations of the effectiveness of each program in meeting the needs of children with disabilities, including evaluation of IEPs at least once every three years; e) insuring proper disbursement of, and accounting for, federal funds paid to the state under the IDEA; and f) making annual reports on children served. 20 U.S.C. §1412. States are eligible for funds if they submit a plan providing numerous assurances in areas such as FAPE, child find, IEPs, least restrictive environment, procedural safeguards, etc.
“Prohibition on Mandatory Medication - The State educational agency shall prohibit State and local educational agency personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act (21 U.S.C. §801 et. seq.) as a condition of attending school, receiving an evaluation under subsection (a) or (c) of section 614, or receiving services under this title. Nothing in subparagraph (A) shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student’s academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under paragraph (3).” 20 U.S.C. §1412(a)(25); 34 C.F.R. §300.174. [For example, a district cannot require parents to place their child with ADHD on Ritalin as a condition to providing special education services.]


IV. Evaluations and Evaluation Safeguards

A. Referral

For the first time, the 2004 amendments addressed referrals for special education services. Either a parent, SEA, other state agency, or LEA [regulations state “parents or public agency”] may initiate a request for an initial evaluation to determine if a child is a child with a disability. 20 U.S.C. §1414(a)(1)(B); 34 C.F.R. §300.301(b). The regulations state the initial evaluation “must be conducted within 60 days of receiving parental consent” or “if the State establishes a timeframe within which the evaluation must be conducted, within that timeframe” and the evaluation must consist of procedures to determine eligibility, and educational needs. 34 C.F.R. §300.301(c).

South Dakota has had a referral process in place for years, located at ARSD 24:05:24:01 through 24:05:24:04. After the 2006 federal regulations were issued, South Dakota chose to retain its 25-school-day requirement for conducting evaluations: “Initial evaluations must be completed within 25 school days after receipt by the district of signed parent consent to evaluate unless other timelines are agreed to by the school administration and the parents. Written evaluation reports, determination of eligibility, and conducting an IEP team meeting must be completed within 30 days from the end of the 25 school day evaluation timeline. If another timeline for completing the evaluation process is agreed to by the parent and school administration, the written evaluation reports, determination of eligibility, and conducting an IEP team meeting must be completed within 30 days from the end of the agreed upon evaluation timeline.” ARSD 24:05:25:03.

B. Evaluations Required

Under both IDEA and the §504 regulations, all children with disabilities must receive “full and individualized” evaluations of their needs. 20 U.S.C. §1414(a)(1)(A); 34 C.F.R. §300.301(a); 34 C.F.R. §104.35. Such an evaluation must be conducted before initial provision of special education and related services or initial services under Section 504. 20 U.S.C. §1414(a)(1)(A); 34 C.F.R. §300.301(a); 34 C.F.R. §104.35(a).

C. Notice and Consent for Evaluation

Both IDEA and §504 require that notice be provided to the parents or guardian whenever the school proposes to initiate or change, or refuses to initiate or change, the identification or evaluation of the child. 20 U.S.C. §§1414(b)(1) and §1415(b)(3), (b)(4); 34 C.F.R. §300.300(a) and §300.503 and §300.504; 34 C.F.R. §104.36. IDEA includes requirements designed to insure that the notice contains a full explanation of the proposed actions and procedural safeguards available to the parent, is written in understandable language, and is provided in the parent’s native language or other primary mode of communication. See 20 U.S.C. §1415(b)(4), (c), (d); 34 C.F.R. §300.503.

Further, under IDEA parental consent must be obtained before conducting an initial evaluation. 20 U.S.C. §1414(a)(1)(D); 34 C.F.R. §300.300(a)(i). Consent for initial evaluation shall not be construed as consent for services. 20 U.S.C. §1414(a)(1)(D)(i)(I); 34 C.F.R. §300.300(a)(ii). For the definition of “consent,” see 34 C.F.R. §300.9, which attempts to ensure that it is truly informed and voluntary. If the parent refuses to consent or fails to respond to a request to provide consent, the district may pursue the initial evaluation through the due process procedures. See 20 U.S.C. §1414(a)(1)(D)(ii); 34 C.F.R. §300.300(a)(3)(i). However, the regulations further state that a district does not violate its “child find” and “evaluation” obligations if it declines to pursue the evaluation when a parent refuses consent or fails to respond to a request to provide consent. 34 C.F.R. §300.300(a)(3)(ii).

[A further comment on “Consent” in general: Throughout the Act and Regulations, “consent” is referred to as “informed consent,” “consent,” “written informed consent,” and “parental consent.” These terms all mean the same thing, consistent with the following definition.]

Consent means: “(a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; (b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and (c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime. (2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).” 34 C.F.R. §300.9 (emphasis added).

[There are also instances when “agree” or “agreement” is used, and in those instances it means an understanding between the parent and LEA that does not have to be in writing unless the language specifically requires it.]

D. Nature of the Evaluation

The “full and individualized” evaluation is carried out by a multidisciplinary team. “Multidisciplinary evaluation” has always meant there must be at least two evaluators and at least two evaluations. The evaluation must assess the child in all areas related to the suspected disability(ies) including, where appropriate, various physical, emotional, perceptual, mental, communicative, and other abilities. 20 U.S.C. §1414(b)(3)(B); 34 C.F.R. §300.304(c)(4); see also 34 C.F.R. §104.35(b) (regarding §504 requirements).

In conducting the evaluation, the school shall use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parents that may assist in determining whether the child is a child with a disability and the content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general education curriculum. 20 U.S.C. §1414(b)(2)(A); 34 C.F.R. §300.304(b)(1). Schools must ensure that no single measure or assessment is used as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child. Decisions cannot be based solely on an IQ score. 20 U.S.C. §1414(b)(2)(B); 34 C.F.R. §300.304(b)(2), (c)(4); see also 34 C.F.R. §104.35(b) (regarding §504).

Furthermore, in evaluating each child, the evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. 34 C.F.R §300.304(c)(6). The school must use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. §1414(b)(2)(C); 34 C.F.R. §300.304(b)(3). The school must use assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child. 20 U.S.C. §1414(b)(3)(C); 34 C.F.R. §300.304(c)(7). Additional procedures for evaluating children believed to have specific learning disabilities appear at 34 C.F.R. §300.307 through §300.311.

Assessments for children who transfer school districts during a year must be coordinated between districts to assure they are completed as expeditiously as possible to ensure prompt completion, but the 60-day timeframe does not apply. 20 U.S.C. §1414(b)(3)(D); 34 C.F.R. §300.301(d)(2), (e), 300.304(c)(5).

E. Valid, Unbiased Testing and Evaluation Methods

The evaluation procedures must have been validated for the specific purpose for which they are used and must be administered properly by trained persons. 20 U.S.C. §1414(b)(3)(A); 34 C.F.R. §300.304(c)(1)(iii), (iv); 34 C.F.R. §104.35(b)(1). They must also be “selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors the test purports to measure).” 34 C.F.R. §300.304(c)(3); 34 C.F.R. §104.35(b)(3).

IDEA requires that all tests and other evaluation materials be provided in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to do so. 20 U.S.C. §1414(b)(3)(A)(ii); 34 C.F.R. §300.304(c)(1)(ii). In addition, the materials and procedures must be selected and administered so as not to be racially or culturally discriminatory. 20 U.S.C. §1414(b)(3)(A)(i); 34 C.F.R. §300.304(c)(1)(i); see also Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal. 1979), aff'd in part and rev'd in part, 793 F.2d 969 (9th Cir. 1984); for a discussion of racially biased testing in the context of §504 and Title VI of the Civil Rights Act 1964, see Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403 (11th Cir. 1985).

F. Interpretation and Use of Evaluation Results

Evaluation results will be used first to determine whether the child has a disability and meets IDEA and/or §504 eligibility criteria. If so, they will then be used to determine the educational needs of the child and develop educational goals, design special education instruction, determine what kind of related services, supplementary aides and services, and/or modifications are needed, and decide upon the least restrictive educational setting in which the child will be placed. A copy of evaluation report and documentation of the determination of eligibility must be given to the parents. 20 U.S.C. §1414(b)(4); 34 C.F.R. §300.306(a)(2). A child may not be determined eligible if the determinant factor for eligibility is lack of appropriate instruction in reading or math, or limited English proficiency, and the child does not otherwise meet eligibility criteria. 20 U.S.C. §1414(b)(5); 34 C.F.R. §300.306(b).

If, following the initial evaluation, the parent refuses consent for services, the district shall not attempt to provide special education services through utilizing due process procedures. The school shall not be considered in violation of the requirement to provide a free appropriate public education and shall not be required to develop an IEP. 20 U.S.C. §1414(a)(1)(D)(ii)(II) and (III); 34 C.F.R. §300.300(b)(3) and (4). [This provision is new and undoubtedly designed to prevent future lawsuits.]

For children previously determined eligible for special education services, a school must evaluate a child with a disability before determining that the child is no longer a child with a disability. However, this evaluation is not required before termination of services due to graduation with a regular high school diploma or exceeding the age eligibility for FAPE under state law. In these situations, the school must provide the child with a summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child’s postsecondary goals. 20 U.S.C. §1414(c)(5); 34 C.F.R. §300.305(e).

In interpreting evaluation data for the purpose of determining eligibility and the educational needs of a child, each public school must:

• draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, as well as information about the child’s physical condition, social or cultural background and adaptive behavior;

• ensure that information obtained from all of these sources is carefully documented and considered; and

• if a determination is made that the child has a disability and needs special education and related services, an IEP must be developed.

34 C.F.R. §300.306(c); 34 C.F.R. §104.35(c).

G. Reevaluation

Regular review and evaluation is important to ensure that students receiving special education services in fact benefit from them and are not unnecessarily and permanently locked into them. See 20 U.S.C. §§1412(a)(7) and 1414(a), (b), (c).

IDEA requires that a public agency must ensure that a reevaluation of each child with a disability is conducted if the district determines that the educational or related service needs, including improved academic or achievement and functional performance, of the child warrant a reevaluation or if requested by the child’s parents or teacher. A reevaluation shall not occur more frequently than once a year unless the parent and district agree otherwise, and at least every three years, unless the parent and district agree that reevaluation is not necessary. 20 U.S.C. §1414(a)(2); 34 C.F.R. §300.303. Informed parental consent is required prior to conducting any reevaluation, unless the district can show it had taken reasonable means to obtain consent and the parent failed to respond. 20 U.S.C. §1414(c)(3); 34 C.F.R. §300.300(c). If a parent refuses to consent to a reevaluation, a district may pursue the reevaluation through use of the due process procedures, but is not required to do so. 34 C.F.R. §300.300(c)(1)(ii) and (iii). The §504 regulations require “periodic reevaluation of students who have been provided special education and related services,” 34 C.F.R. §104.35(d), as well as evaluations prior to any “significant change in placement.” 34 C.F.R. §104.35(a).

In South Dakota: “Reevaluations must be completed within 25 school days after receipt by the district of signed consent to reevaluate unless other time limits are agreed to by the school administration and the parents, consistent with ARSD 24:05:25:03 (written evaluation reports, determination of continuing eligibility, and conducting IEP Team meeting must be completed within 30 days of the end of the 25 school day reevaluation timeline). ARSD 24:05:25:06.

H. Additional Requirements for Evaluation and Reevaluation

As part of an initial evaluation (if appropriate) and as part of any reevaluation, the IEP team and other qualified professionals, as appropriate, shall review existing evaluation data, including evaluations and information provided by the parents, current classroom-based, local, or state assessments and classroom-based observations, and observations by teachers and related service providers. On the basis of that review, and input from the child’s parents, the team shall determine what additional evaluations, if any, are needed to determine 1) whether the child is a child with a disability and the educational needs of the child, or in case of a reevaluation, whether the child continues to have such a disability and such educational needs; 2) present levels of academic achievement and related developmental needs of the child; 3) whether the child needs special education and related services, or in the case of a reevaluation, whether the child continues to need special education and related services; and 4) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the child’s IEP and to participate, as appropriate, in the general education curriculum. 20 U.S.C. §1414(c)(1); 34 C.F.R. §300.305(a). The group may conduct its review without a meeting. 34 C.F.R. §300.305(b).

If the IEP team and other qualified professionals, as appropriate, determine no additional data are needed to determine whether the child continues to have a disability and to determine the child’s educational needs, the school must notify the parents of the determination and the reasons for it, and that the parents have the right to request further assessment. 20 U.S.C. §1414(c)(4); 34 C.F.R. §300.305(d). In other words, if the team determines that sufficient information exists or it is otherwise not necessary to conduct all or part of a multidisciplinary evaluation, the decision can be made not to do so (for either initial evaluations or reevaluations). Parents, however, can insist that the evaluations take place.

I. Independent Educational Evaluations (IEE)

One of the procedural safeguards afforded to parents and children is the right to an independent educational evaluation at public expense. A parent has the right under IDEA to obtain an independent educational evaluation of the child, when s/he disagrees with an evaluation conducted or obtained by the school. 20 U.S.C. §1415(d)(2)(A); 34 C.F.R. §300.502(b)(1). A new regulation states that “a parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 34 C.F.R. §300.502(b)(5). The independent evaluation will be at public expense unless the public agency initiates a hearing and demonstrates that its own evaluation is appropriate, or if the school demonstrates at a hearing that the evaluation obtained by the parent did not meet agency criteria. 34 C.F.R. §300.502(b)(2). See Douglas School District, 20 IDELR 458 (SEA SD 1993) (School failed to demonstrate its evaluation was appropriate). Section 300.502(c) contains new language stating if the parent obtains an independent educational evaluation at public expense “or shares with the pubic agency an evaluation obtained at private expense, the results of the evaluation – (1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) May be presented by any party as evidence at a hearing on a due process complaint….”

Schools must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained and the agency criteria applicable. 34 C.F.R. §300.502(a)(2). Districts may set criteria for an independent educational evaluation, including location of the evaluation and qualifications of the examiner, in that the criteria must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent that those criteria are consistent with a parent’s right to an independent educational evaluation (criteria may not be so unduly limiting so as to effectively deny this right). 34 C.F.R. §300.502(e)(1). Besides such criteria, districts may not impose conditions or timelines related to obtaining an independent evaluation at public expense. 34 C.F.R. §300.502(e)(2). If a parent requests an independent educational evaluation, the public agency may ask for the reason why the parent objects to the school’s evaluation. However, parents need not provide schools with this information and schools may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a hearing. 34 C.F.R. §300.502(b)(4). IDEA does not require that parents inform the district of their intent to get an independent educational evaluation at public expense prior to doing so.


V. Programming and Placement Decisions

A. “Free Appropriate Public Education”

IDEA requires each state to adopt and implement a policy which insures a “free appropriate public education” (FAPE) for all children with disabilities within the state. 20 U.S.C. §1412(a)(1); 34 C.F.R. §300.101. The §504 regulations impose a similar requirement:

“A recipient that operates a public elementary or secondary education program shall provide a free appropriate education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. §104.33(a).

1. IDEA

a. Special Education

Under IDEA, a “free appropriate public education” or “FAPE” means “special education and related services,” including appropriate preschool, elementary, or secondary school education, provided in conformity with the required individualized education program and provided at public expense. 20 U.S.C. §1402(9); 34 C.F.R. §300.17. “Special education,” in turn, is defined as:

“... specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.”

20 U.S.C. §1402(29) (emphasis added); see also 34 C.F.R. §300.39. “Specially designed instruction” was defined for the first time in the 1999 regulations as: “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. §300.39(b)(3).

Special education also includes “travel training.” Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live and learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community). 34 C.F.R. §300.39(b)(4).

Note that under this definition, “special education” is an instructional technique, not a place: once instruction for an individual child has been tailored as required to address his or her needs it may, again depending upon the child’s needs, be provided in a variety of settings including a regular education classroom. Thus, a school district cannot fulfill its obligation to provide “special education” by, for example, automatically placing a child with a particular disability in a particular classroom or program designated to serve that group. See, e.g., Board of Education of the County of Cabell v. Dienelt, 1986-87 EHLR DEC. [Education for the Handicapped Law Reports Decisions] 558:305, 308 (S.D.W.Va. 1987) (school board failed to provide free appropriate public education when it attempted to place student with learning disabilities in its “generalized special education program without reference to the child's individualized needs”) aff’d. per curium, 843 F.2d 813 (4th Cir. 1988). In addition to circumventing IDEA requirements, such conduct constitutes illegal discrimination under §504. See 34 C.F.R. §104.4(b)(1)(iv) (prohibiting recipients of federal funds from providing different or separate services to people with disabilities or any category of people with disabilities unless such treatment is necessary to provide them services as effective as those provided to non-disabled people).

b. Related Services

For purposes of IDEA, “related services” are defined as:

“ ...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 appropriate public education as described in the IEP 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 disabilities to benefit from special education, and includes the early identification and assessment of disabling conditions in children.”

20 U.S.C. §1402(26); see also 34 C.F.R. §300.34. The regulations had previously also contained “school health services.” The 2006 regulations have combined “School Health Services” and “School Nurse Services” and state: “School health services and school nurse services means health services that are designed to enable a child with a disability to receive FAPE as described in the child’s IEP. School nurse services are services provided by a qualified school nurse. School health services are services that may be provided by either a qualified school nurse or other qualified person.” 34 C.F.R. §300.34(b)(13). The regulations also include parent counseling and training. 34 C.F.R. §300.34(b)(8).

There was a long-running debate as to what constitutes an included “school health service” and what includes an excluded “medical service” under the Act. The Supreme Court addressed whether clean intermittent catheterization is a related service in Irving Independent School District v. Tatro, 1983-84 EHLR 555:511 (U.S. 1984). There, the Court set out a “bright line” test, essentially ruling that if a service had to be provided by a physician, it was not a related service. Many federal circuits interpreted Tatro to be limited to simple non-medical procedures, not more complex services, such as for medically-fragile children that would require a full-time nurse, and excluded such services from school responsibility because they were “medical” until 1999. The Court granted certiorari on a case out of the Eighth Circuit that had followed Tatro, due to the split in the federal circuits. The Supreme Court upheld its prior decision in Tatro, essentially stating that it had set out a “bright line” test then, and that there was no legal reason to deviate from it. The Court ruled that full-time nursing services constitutes a school health service and is thus a related service under the IDEA. Cedar Rapids Community School District v. Garret F., 29 IDELR 966 (U.S. 1999). This ruling was codified in the 2004 amendments by adding “school nurse services” to the list of related services.

The statutory/regulatory list of related services is not exhaustive; if a child needs a particular service in order to benefit from special education and the service is a developmental, supportive or corrective one, it meets the definition of a related service. For some children, for example, a part-time or full-time aide might constitute a required related service, see, e.g., Thornock v. Boise Independent School District #1, 115 Idaho 466, 767 P.2d 1241 (1988), cert. denied, 109 S.Ct. 2069 (1989), as might certain equipment or assistive technology, such as a computer or tape recorder. The South Dakota Supreme Court ruled that “teacher training” is not within the realm of related services and a school is not therefore required to include it in a child’s IEP. Koupal v. Sioux Falls School District, 526 N.W.2d 248, 22 IDELR 26 (S.D. 1994), cert. denied, 515 U.S. 1143 (1995). This ruling appears to be no longer valid based on the 1997 Amendments to the IDEA, which require “supports for school personnel” to be included in an IEP when appropriate. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 C.F.R. §300.320(a)(4). Related services do not include “a medical device that is surgically implanted, or the replacement of such


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I.D.E.A. Outline - pages 19-35
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device.” 20 U.S.C. §1402(26)(B); 34 C.F.R. §300.34(b). Under IDEA, a child must first be found to require special education before a child can receive a related service.

The related service of transportation may be required if a child with a disability cannot ride the regular school bus due to disability-related needs, or, if there is not a regular school bus, if the child requires the service in order to benefit from special education. Districts may ask the parents to provide the service, but parents cannot be required to do so. South Dakota’s administrative rules state, in part: “A district may not require that a parent provide transportation; however, if both parties agree that the parent will provide the transportation, it shall be noted on the IEP and the parent shall be reimbursed by the district in accordance with SDCL 13-30-3 and 13-37-8.9.” ARSD 24:05:27:07. If parents agree, the rate of reimbursement is negotiable and parents must, at a minimum, be reimbursed at the State rate (currently 37 cents per mile). There is no yearly maximum. Parents seeking for a district to provide the related service of transportation has resulted in some odd results. See Fick v. Sioux Falls School District, 337 F.3d 968 (8th Cir. 2003) (applying a §504 decision that upheld an open enrollment policy where all parents who open enroll their child must transport their child, to an IDEA case where parents sought to have their child dropped off after school at a location outside an internal district boundary, because both laws require a free appropriate public education); and Malehorn v. Hill City School District, 987 F. Supp. 772 (D.S.D. 1997) (ruling that a child who lived 13.5 miles from school, 8.5 miles from a bus stop, on a dirt road in the middle of the Black Hills, did not live far enough for distance to be a controlling factor as to whether she required the related service of transportation, and since her parent had been providing the transportation).

2. §504

The free appropriate public education required by §504 may consist of “regular or special education and related aids and services.” 34 C.F.R. §104.33(b) (emphasis added). The §504 regulations do not define these terms, but do provide that special education and related services developed and delivered in accordance with IDEA dictates will ordinarily satisfy the §504 requirement as well. See 34 C.F.R. §104.33(b)(2). Under §504, a child need not require special education in order to receive a related service.

3. “Free” Means Free

Whether pursuant to IDEA or §504, all special education and related services must be provided at public expense, without cost to child, parent or guardian. 20 U.S.C. 1402(9)(A); 34 C.F.R. §§300.17(a); 34 C.F.R. §104.33(c). Parents cannot be required to use their child’s Social Security or SSI benefits to fund services owed them under these statutes. McLain v. Smith, 16 EHLR 6 (E.D. Tenn. 1989). School districts may not require a parent to use private health insurance to pay for or defray the cost of special education and/or related services if use of the insurance poses a risk of financial loss to parent or child. Shook v. Gaston County Board of Education, 882 F.2d 119 (4th Cir. 1989), cert. denied, 58 U.S.L.W. 3528 (2/20/90); Seals v. Loftis, 614 F. Supp. 302 (E.D. Tenn. 1985). See also, 34 C.F.R. §300.154 – Regarding children with disabilities covered by public benefits or insurance, the regulations allow the public agency to access Medicaid or other public benefits or insurance, or private insurance, as long as specific conditions are met such as there is no cost to the parents and no decrease in lifetime benefits, etc. The 2006 regulations added that parental consent must be obtained “each time that access to public benefits or insurance is sought.” 34 C.F.R. §300.154(d)(iv). Previously, the consent requirement applied only to private insurance.

B. Content of Individualized Education Program

Once it is determined that a child has a disability and needs special education and related services, a written individualized education program (IEP) must be developed. 20 U.S.C. §1402(14), 1414(d); 34 C.F.R. §300.320. The parent is specifically entitled to a free copy of the IEP under 34 C.F.R. §300.322(f). Under IDEA, a school system is not providing a free appropriate public education if it is not following a properly developed IEP. 20 U.S.C. §1402(9)(D); 34 C.F.R. §300.17(d); Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206 n.27, 102 S.Ct. 3034, 3051 n.27 (1982).

The 2004 amendments made several changes to the content of the IEP. Per 20 U.S.C. §1414(d)(1)(A)(i), an IEP must include:

(I) a statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum; or for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities; and for children with disabilities who take alternative assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives.

(II) a statement of measurable annual goals, including academic and functional goals, designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that result from the child’s disability; [Note: Short-term objectives and benchmarks have been removed for most children, except as stated above under (I). This does not mean that short-term objectives/benchmarks can never be included in an IEP, but only that the law does not require them.]

(III) a description of how the child’s progress toward meeting the annual goals … will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as though the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided.

(IV) a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child - to advance appropriately toward attaining the annual goals; to be involved in and make progress in the general education curriculum ... and to participate in extracurricular and other nonacademic activities; and to be educated and participate with other children with disabilities and nondisabled children in the activities described in this subparagraph;

(V) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in subclause IV;

(VI) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments, and if the IEP team determines that the child shall take an alternate assessment on a particular State or districtwide assessment of student achievement, a statement of why the child cannot participate in the regular assessment and (why) the particular alternate assessment selected is appropriate for the child;

(VII) the projected date for the beginning of services and modifications described in subclause (IV), and the anticipated frequency, location, and duration of those services and modifications.

(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter – appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; the transition services (including courses of study) needed to assist the child in reaching those goals; and beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child’s rights under this title, if any, that will transfer to the child on reaching the age of majority under Section 1415(m).

20 U.S.C. §1414(d)(1)(A)(i); 34 C.F.R. §300.320(a)-(c). The 2006 regulations add “or younger if determined appropriate” to the transition services requirement after reference to age 16.

The 2004 amendments further provide that “nothing in this section shall be construed to require that additional information be included in a child’s IEP beyond what is explicitly required in this section; or the IEP Team to include information under 1 component of a child’s IEP that is already contained under another component of such IEP.” 20 U.S.C. §1414(d)(1)(A)(ii); 34 C.F.R. §300.320(d).
The IEP must contain a statement of all services needed by the child, not just those which are available within the school system. See Todd D. v. Andrews, 933 F.2d 1576, 1580-81 (11th Cir. 1991) (district court erred by ordering alteration of IEP goals so that IEP could be implemented at existing placement, rather than ordering school system to provide placement that could implement IEP as written). In other words, the IEP must be tailored to the specific needs of the child, not decided by what services the school district currently has readily available. When needed, schools must contract with outside agencies to provide children with disabilities with appropriate services.

Under certain circumstances, local school districts may provide 3 to 5 year olds with an “Individualized Family Service Plan” (“IFSP”) instead of an IEP. 20 U.S.C. §1414 (d)(2)(B); 34 C.F.R. §300.323(b). A local school system’s substitution of an IFSP for IEP must be consistent with state policy, and must be agreed to by the parents. IFSPs for 3 to 5 year olds must meet the requirements governing IEPs. For information about Part C, birth to 3, see below.
C. Effectiveness of the Program in Meeting the Child’s Needs
(What is “Appropriate?”)

1. IDEA

Congress has never defined “appropriate” in the Act, and the Department of Education has similarly never defined the term in the federal regulations. The Supreme Court has held that a package of special education and related services is “appropriate” within the meaning of IDEA if (1) the IEP was developed in accordance with the procedures set forth in the statute (including those governing resolution of disputes between parents and school systems), and (2) it is “reasonably calculated to enable the child to receive educational benefits.” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-207, 102 S.Ct. 3034, 3035 (1982). The Court went on to state that it was not setting a specific standard that would apply to all children with disabilities, because the amount of benefit a child could receive would vary based on the severity of the child’s disability. It also described the goal of the Act to be that of providing access to education, referring to a “basic floor of opportunity” to allow children with disabilities to receive “some benefit.” Clearly, maximization of services or outcomes for children with disabilities is not the applicable standard of what is “appropriate.” Subsequent federal court decisions have made it clear that trivial or de minimis benefit does not meet this standard; rather the IEP must be one “under which educational progress is likely.” Board of Education of East Windsor Regional School District v. Diamond, 808 F.2d 987, 991 (3rd Cir. 1986) (emphasis in original). Nonetheless, the bar was set very low, as the amount of services sufficient to be “appropriate” has been consistently interpreted to mean “enough to provide some benefit.” A recent case described IDEA, based on Rowley, as follows: “[T]he assistance that IDEA mandates is limited in scope. The Act does not require that States do whatever is necessary to ensure that all students achieve a particular standardized level of ability and knowledge. Rather, it much more modestly calls for the creation of individualized programs reasonably calculated to enable the student to make some progress towards the goals within that program.” Thompson R2-J School District v Luke P., 540 F.3d 1143, 1155 (10th Cir. 2008) (emphasis added). [Some progress toward annual goals = appropriate?]

Rowley does not prohibit states from setting higher quality and benefit standards, and a few states do or previously have done so by statute, regulation, judicial decision, or state constitutional provision. Because special education and related services must meet the standards of the state educational agency, where a higher state quality standard exists, it is automatically “incorporated” into IDEA. Town of Burlington, 736 F.2d 773, 789 (1st. Cir. 1984), aff’d on other grounds, 471 U.S. 359 (1985). In these states, an education meeting the higher state quality standard is an IDEA right, and IDEA compliance may thus require IEPs designed to maximize potential or otherwise exceed the Rowley “some benefit” standard. South Dakota has not set a higher standard.

Rowley was the first United States Supreme Court case that interpreted IDEA, and that was nearly 27 years ago in 1982. The law has been amended four times since then. Portions of the 1990, 1997 and 2004 amendments to IDEA raise the question of whether the Rowley “some benefit” standard would still apply if challenged. The 1990 amendments added the requirement of transition services. The 1997 amendments added in the “purpose” section of the law that special education services must be designed to meet a child’s unique needs and prepare them for “employment and independent living.” The 2004 amendments added “further education.” [Clearly, a child would need to receive more than just “some benefit” from special education services in order to be prepared to pursue further education, employment, or independent living, right?]

One recent case in particular has recognized that IDEA has shifted from the goal of “access to education” to “outcomes.” In J.L. and M.L. v. Mercer Island School District, 2006 WL 3628033 (W.D. Wash. 2006), the court rejected Rowley and all pre-1997 case law, finding that the standard for an “appropriate” education had changed. The court stated: “ [W]e agree that the IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue …. At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit toward the goal of self-sufficiency.” Id. at *3

The Mercer Island Court also stated: “To the extent that the Supreme Court at that time was interpreting a statute which had no requirement (1) that programming for disabled students be designed to transition them to post-secondary education, independent living or economic self-sufficiency or (2) that schools review IEPs to determine whether annual goals were being attained, the Court must consider that opinion superseded by later legislation, and the District’s and ALJ’s reliance on it misplaced.” Id. at *4. The court also stated: “This is such a significant departure from the previous legislative scheme that any citation to pre-1997 case law on special education is suspect.” Id.

2. §504

Because §504 is an antidiscrimination statute, the regulations address educational quality by reference to the quality of services provided to non-disabled students. For purposes of §504,

“ ... an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based on adherence to procedures that satisfy the requirements of [the §504 regulations regarding evaluations, least restrictive environment and procedural safeguards].”

34 C.F.R. §104.33(b)(1).

The Section 504 regulations also provide that it is illegal for recipients to afford a disabled student an opportunity to participate in or benefit from an aid, benefit or service that is not equal to that afforded others, or to provide a disabled student with an aid, benefit or service that is not as effective as that provided to others. 34 C.F.R. §104.4(b)(ii)-(iii). In addition, any facility that is identifiable as being for students with disabilities must be comparable -- physically as well as in regard to the quality of services and activities conducted there -- to facilities for nondisabled students. 34 C.F.R. §104.34(c).

D. Least Restrictive Environment/Integration/Mainstreaming/Inclusion

1. IDEA

While terms like “integration,” “mainstreaming,” and “inclusion” are often used by both parents, professionals, and courts, none of those terms are, or have ever been, contained in IDEA. Both IDEA and §504 guarantee children with disabilities the right to participate in regular classroom and extra curricular activities with nondisabled students to maximum extent appropriate in view of their individual needs, with the use of supplementary aids and services and/or modification of the regular education curriculum if necessary. IDEA addresses this right in 20 U.S.C. §§1412(a)(5) and 1414(d)(1)(A)(i)(V). Specifically, IDEA states:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational 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.

See also, 34 C.F.R. §300.114(a)(2). Thus, there is a very strong presumption in the law in favor of placement in the least restrictive environment, whatever that may be for a particular child. “Supplementary Aids and Services” is defined to mean “aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate….” 20 U.S.C. §1402(33); 34 C.F.R. §300.42. The 1997 Amendments changed the language from requiring IEP Teams to determine and document how much the child would participate in the regular education environment, to the extent that the child will not participate with nondisabled children in the regular classroom and activities; see also 34 C.F.R. §300.320(a)(5) and §§300.114 - 300.117. This was a subtle, yet significant difference, as the initial presumption shifted from no inclusion to full inclusion. The right applies to the full range of academic program options, nonacademic services, extracurricular activities, and physical education. 34 C.F.R. §§300.306; 300.117. For example, the least restrictive environment requirement applies to the area of transportation. See Clark School District, 20 IDELR 468 (SEA S.D. 1993) (ruling it was less restrictive to put an aide on the regular school bus than to transport the child in a separate vehicle).

These provisions also require that, unless the IEP requires some other arrangement, the child is educated in the school that he or she would attend if not disabled. 34 C.F.R. §300.116(c). In selecting the LRE, consideration is to be given to any potential harmful effect on the child or on the quality of services he or she needs. 34 C.F.R. §300.116(d). A child with a disability is not to be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. 34 C.F.R. §300.116(e).

Previously, many courts had ruled a school district proposing to remove a child from the regular classroom bears the burden of proving that such an exclusion from the regular education setting -- whether total or partial -- is justifiable in view of the LRE requirements. Oberti v. Bd. of Ed. of Borough of Clementon Schl. Dist., 995 F.2d 1204 (3d Cir. 1993); Tokarcik v. Forest Hills School District, 665 F.2d 443, 458, (3d Cir. 1981), cert. denied, 458 U.S. 1121; Davis v. District of Columbia Board of Education, 530 F. Supp. 1209, 1211-1212 (D.D.C. 1982); Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866, 880-881 (D.D.C. 1972); 34 C.F.R. §104.34(a). However, based on a recent U.S. Supreme Court decision, Schaffer v. Weast, 126 S.Ct. 528 (U.S. 2005), the party who bears the burden of proof in an LRE case is in doubt, as the Court held that the party challenging the IEP (the party who files for due process) bears the burden of proof/persuasion at a due process hearing, unless State law indicates otherwise. A Third Circuit case has already overruled Oberti on that aspect of the decision. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384 (3rd Cir. 2006).

IDEA “does not permit states to make mere token gestures to accommodate handicapped students [in regular education classrooms]; its requirement for modifying and supplementing regular education is broad.” Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989); see also Oberti. “[T]he decision as to whether any particular child should be educated in a regular classroom setting ... is necessarily an inquiry into the needs and abilities of one child, and does not extend to a group or category of handicapped children....” Board of Education of Sacramento City Unified School District v. Holland, 786 F. Supp. 874, 878, aff'd., 14 F.3d 1398 (9th Cir. 1994). “[B]efore the school district may conclude that a handicapped child should be educated outside the regular classroom, it must consider ... the whole range of supplemental aids and services ... for which it is obligated under [IDEA] and the regulations promulgated thereunder to make provision.” Greer v. Rome City School District, 950 F.2d 688, 696 (11th Cir. 1992). Only when the child’s education cannot be achieved satisfactorily in the regular education classroom with one or more of such supplementary aids and services may s/he be placed in another setting. Consideration of these issues must occur “prior to and during the development of the IEP.” Id.

2. §504

Similar rights are established under §504 by 34 C.F.R. §§104.34, 104.37. For instance, §104.34(a) states that handicapped persons shall be educated with non-handicapped persons “to the maximum extent appropriate” and shall be placed in the regular program “unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.”

In addition to these specific provisions concerning elementary and secondary education, the §504 regulations state more generally that:

“(1) A recipient ... may not ... on the basis of handicap:

* * *

(iv) Provide different or separate aid, benefits, or service to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;

* * *

(3) Despite the existence of separate or different programs or activities provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in such programs or activities that are not separate or different.”

34 C.F.R. §104.4(b).

Courts have recognized mainstreaming rights under the Constitution, see, e.g., Mills, supra, the federal laws, and/or state law. In Hairston v. Drosick, 425 F. Supp. 180 (S.D.W.Va. 1976), for example, the court found:

“It is an educational fact that the maximum benefits to a child are received by placement in as normal an environment as possible. ... A child has to interact in a social way with its peers and denial of this opportunity during his minor years imposes added lifetime burdens upon a handicapped individual.”

Id. at 183-84. The court went on to hold that exclusion of a child with disabilities from a regular classroom situation, except as a last resort in situation in which educational needs cannot be met within that classroom, violates both §504 and the IDEA.

The least restrictive environment requirement also protects children whose needs cannot be met in regular education classes from overly restrictive and isolated placements. Thus, for example, IDEA and §504 integration requirements would be violated if a child who could be educated appropriately in a special education classroom within a “regular” education elementary school were nonetheless placed in a segregated school for children with disabilities. See, e.g., Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983), cert. denied, 464 U.S. 864, 104 S.Ct. 196.

E. Full Educational Opportunity

1. IDEA

In addition to specific requirements regarding the provision of a free appropriate public education, IDEA and its regulations require state and local implementation of plans to provide a goal of full educational opportunity to all children with disabilities aged birth through twenty-one. See 20 U.S.C. §1412(a)(2); §1413(a)(1); 34 C.F.R. §300.109.

2. Section 504

Section 504, by the terms of the statute, forbids discrimination against students with disabilities; the regulations, at 34 C.F.R. §104.4(b), include the following among the types of discrimination which are prohibited:

“(1) A recipient, in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

* * *

(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

* * *

(4) A recipient may not ... utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons, or (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.

(5) In determining the site or location of a facility, an applicant for assistance or a recipient may not make selections (i) that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives or benefits from Federal financial assistance or (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons.”

In addition, both the IDEA and §504 regulations set forth specific requirements regarding equal opportunity for participation in a variety of school programs (such as art, music, industrial arts, consumer and homemaking education, and vocational education), nonacademic services, and physical education. See 34 C.F.R. §300.107, §300.108, §300.110 (implementing IDEA); 34 C.F.R. §§104.34(b) and 104.37 (implementing §504).

F. IEP Development and Parental Participation

1. IEP Team Participants

The 2004 amendments list as mandatory IEP Team members:

(i) the parents of a child with a disability;
(ii) not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
(iii) not less than one special education teacher, or where appropriate, not less than one special education provider of such child;
(iv) a representative of the local educational agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of resources of the local educational agency [Person must have authority to commit school resources];
(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (iv);
(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
(vii) whenever appropriate, the child with a disability.

20 U.S.C. §1414(d)(1)(B); See also, 34 C.F.R. §300.321(a). In addition, if a purpose of an IEP meeting “will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals,” the public agency must invite the student to the meeting. If the student does not attend, the school must take other steps to ensure that the student’s preferences and interests are considered. 34 C.F.R. §300.321(b)(1), (2). “To the extent appropriate, with the consent of the parents or a child who has reached the age of majority, in implementing the requirements of paragraph (b)(1) of this section, the public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.” 34 C.F.R. §300.321(b)(3).

When a child was previously served under Part C (Birth to 3), at the request of the parent, an invitation to the initial IEP meeting must be sent to the Part C coordinator or other representatives from the Part C system to assist with smooth transition of services (to Part B). 20 U.S.C. §1414(d)(1)(D); 34 C.F.R. §300.321(f).

2. Parent Participation

The school system must take several steps to ensure parent presence, including proper notification, agreement on scheduling, alternative means of participation, and actions to ensure that the parent understands the proceedings, including provision of a translator or sign language interpreter when necessary. 34 C.F.R. §300.325; see also Rothschild v. Grottenthaler, 907 F. 2d 286 (2d Cir. 1990) (school district must provide parents with sign-language interpreter for school-initiated meetings concerning academic or disciplinary progress of their children). Some courts have held that parents have the right under IDEA to tape record IEP meetings. E.H. v. Tirozzi, 735 F. Supp. 53 (D. Conn. 1990); V.W. v. Favolise, 131 F.R.D. 654 (D. Conn. 1990). However, the Act is silent on this matter. If a school records an IEP meeting, that tape becomes a student record.

When conducting IEP Team meetings and placement meetings pursuant to section 1414(f), section 1415(e), and section 1415(f)(1)(B), and carrying out administrative matters under section 1415 (such as scheduling, exchange of witness lists, and status conferences), the parent of a child with a disability and a local educational agency may agree to use alternative means of meeting participation, such as video conferences and conference calls. 20 U.S.C. §1414(f); 34 C.F.R. §300.328.

IEP meetings can be conducted without a parent in attendance, but only if the public agency was unable to convince the parent to attend. Public agencies must keep detailed records of attempts to contact parents, such as phone calls attempted or made and the results of those conversations, correspondence sent and any responses received, and visits to the parent’s home or place of employment and the results of those visits. 34 C.F.R. §300.322(d).

3. IEP Team Attendance/Amendments

In spite of the language discussed above regarding mandatory IEP team members, the 2004 amendments added provisions wherein IEP team members can be excused from attending. The new language states:

“(i) A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.

(ii) A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if (I) the parent and the local educational agency consent to the excusal; and (II) the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.

(iii) A parent’s agreement under clause (i) and consent under clause (ii) shall be in writing.”

20 U.S.C. §1414(d)(1)(C); 34 C.F.R. §300.321(e). [What is the difference between agreeing in writing and consenting in writing?]

In addition, the 2004 amendments allow for situations where only the parent and one school person can make IEP revisions without reconvening the IEP Team. The new law states:

“In making changes to a child’s IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child’s current IEP.”

20 U.S.C. §1414(d)(3)(D); 34 C.F.R. §300.324(a)(4). Changes to the IEP may be made either by the entire IEP Team, or by the parent and apparently one school official, by amending the IEP rather than by redrafting the entire IEP. [Creating IEP Addendums is nothing new.] Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated. 20 U.S.C. §1414(d)(3)(F); 34 C.F.R. §300.324(a)(6). [This means the parent can request and then must be provided a completely rewritten IEP containing the changes from an addendum/amendment following the annual IEP.] The 2006 Regulations add a section stating that if changes are made to the IEP by the parent and public agency without convening the entire IEP Team, the public agency must ensure the IEP Team is informed of those changes. 34 C.F.R. §300.324(a)(4)(ii). [Do these changes raise any concerns? Do they create any possibilities?]

4. IEP Development

The IEP team must consider the strengths of the child; the concerns of the parents for enhancing the education of their child; the results of the initial evaluation or most recent evaluation of the child; and the academic, developmental, and functional needs of the child. 20 U.S.C. §1414(d)(3)(A); 34 C.F.R. §300.324(a)(1).

5. Consideration of Special Factors

The 1997 amendments added several “special factors” IEP Teams must consider at each meeting:

(i) in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies to address that behavior;
(ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child’s IEP;
(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’s future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode; and
(v) consider whether the child needs assistive technology devices and services.

20 U.S.C. §1414(d)(3); 34 C.F.R. §300.324(a)(2) (emphasis added).

6. Review and Revision of IEPs

IEPs must be reviewed periodically, but not less frequently than annually, to determine whether the child’s annual goals are being achieved. IEPs must be revised as appropriate to address any lack of expected progress toward annual goals and in the general education curriculum, where appropriate; the results of any reevaluation conducted; information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. 20 U.S.C. §1414(d)(4); 34 C.F.R. §300.324(b)(1). The 2006 Regulations add that when “conducting a review of the child’s IEP, the IEP Team must consider the special factors described in paragraph (a)(2) of this section.” 34 C.F.R. §300.324(b)(2).

7. Placement

Once a child’s needs have been identified and appropriate academic and functional goals and services are identified through the IEP process, the least restrictive placement capable of providing those services and achieving those goals can be selected. Placement decisions must be made by a group of persons, including parents and other persons knowledgeable about the child, the meaning of evaluation data, and placement options, and must be made in conformity with the LRE provisions. 34 C.F.R. §300.116(a). The placement must be determined at least annually, be based on the child’s IEP, and be as close as possible to the child’s home. 34 C.F.R. §300.116(b). This means that the IEP must be developed before a placement is chosen. Spielberg v. Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir. 1988). A school system violates IDEA if it writes an IEP to fit a placement it has already selected. Speilberg, 853 F.2d at 259; c.f. Todd D., 933 F.2d at 1580-81 (district court erred by ordering alteration of IEP goals so that IEP could be implemented at existing placement, rather than ordering school system to provide placement capable of implementing IEP as written). Schools must assure that parents of each child with a disability are members of the team deciding educational placement of their child. 20 U.S.C. §1414(e); 34 C.F.R. §300.327.

G. Transition Services Under IDEA - Requirements

1. What Does the IDEA Require?

20 U.S.C. §1414(d)(1)(A)(i) requires an IEP to contain:

“(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter –
(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills;
(bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and
(cc) beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child’s rights under this title, if any, that will transfer to the child on reaching the age of majority under Section 1415(m).”

The 2006 Regulations add “or younger if determined appropriate by the IEP Team” after “16,” but otherwise contain similar language. 34 C.F.R. §300.320(b).

2. What are Transition Services?
a. Definition
“The term ‘transition services’ means a coordinated set of activities for a child with a disability that is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.”

20 U.S.C. §1402(34)(A); 34 C.F.R. §300.43(a)(1). Components of this definition need to be further examined.

“Coordinated set of activities” - connotes that the transition services provided by the school and/or other participating agencies be done in a coordinated, nonduplicative manner; in other words, the individual/agencies will be working together.

“Results-oriented process” - indicates that specific outcomes or results from activities are anticipated, requiring goals to meet those results.

“Academic and functional achievement of the child” – activities must address not only academics, but also how the child functions in participating in and completing activities.

“To facilitate the child’s movement from school to post-school activities” - indicates that the services should be designed so that the student reaches the anticipated outcomes deemed appropriate for the student in the areas described (postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation).

b. Child’s Role

The “coordinated set of activities” must initially be “based on the individual child’s needs, taking into account the child’s strengths, preferences and interests.” 20 U.S.C. §1402(34)(B); 34 C.F.R. §300.43(a)(2).

This requirement cannot be overstated, as it is for the student’s future that the services are designed. When addressing transition services at an IEP meeting, the student’s strengths, preferences and interests should probably be the first matter discussed. In theory, it will thus be the student (with family assistance as appropriate) orchestrating the services required, rather than the school dictating what services it believes to be needed. In addition to ensuring that transition services are based on a student’s strengths, preferences and interests, in order for a student to experience success in transition planning and participate in the process, the student should be able to:

• Understand his or her disability and its effect on learning and work;
• Understand the IEP process and his or her role in the determination of transition services;
• Develop skills and abilities that promote a positive self-image, appropriate social skills and realistic personal goals;
• Know the rights and responsibilities that apply to postsecondary service delivery systems, agencies and schools;
• Identify and access agencies and resources that may provide necessary services and support systems; and
• Know when it is appropriate to access supports, services and assistance.

c. Services Required

Per 20 U.S.C. §1402(34)(C), the “coordinated set of activities” must include:

(i) Instruction [in postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation];
(ii) Related Services;
(iii) Community experiences [in postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation];
(iv) Development of employment and other post-school adult living objectives [in postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation]; and
(v) When appropriate, acquisition of daily living skills and [provision of a] functional vocational evaluation.

The 2006 Regulations contain similar language. 34 C.F.R. §300.43(a)(2)(i)-(v).

3. When Must Transition Services be Provided?

Transition services must be in place not later than the first IEP to be in effect when the child is 16 years old (20 U.S.C. §1414(d)(1)(A)(i)), or younger if determined appropriate by the IEP Team. 34 C.F.R. §300.320(b).

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I.D.E.A. Outline - pages 36-53
by John A. Hamilton


4. Who Provides Transition Services?

• The public agency responsible for educating the student has primary responsibility.
• Other agencies may have responsibilities for a student’s transition services, and with consent of the parents or child who has reached the age of majority, the public agency, to the extent appropriate, must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. 34 C.F.R. §300.321(b)(3).
• Note that the IDEA does not state that parents are responsible for providing transition services.

5. What if a Participating Agency does not Provide Agreed upon Services?

“If a participating agency, other than the LEA, fails to provide the transition services described in the IEP of a student with a disability, the LEA shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.”

20 U.S.C. §1414(d)(6); 34 C.F.R. §300.324(c)(1). In other words, the ultimate responsibility for transition services falls on the school district. However, this section does not relieve any participating agency, including a state vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency. 34 C.F.R. §300.324(c)(2).

6. How are Transition Needs Determined?

Transition needs should be determined through an evaluation process similar to that provided otherwise to students under the IDEA. 20 U.S.C. §1414(d)(1)(A)(i)(VIII)(aa); 34 C.F.R. §300.320(b)(1). Assessment should be an ongoing process measuring a student’s educational performance, vocational skills, social skills, independent living skills, and other skills on both a formal and informal basis. Formal evaluations may include accessing outside resources for vocational, social or independent living evaluations. Some assessment resources/options may include:
• In-school evaluations;
• Vocational/technical education evaluations;
• Guidance Counselor;
• Job Service;
• Rehabilitation Services;
• Interest inventories;
• Community-based evaluations;
• Employer evaluations;
• Curriculum-based assessments.

Informal assessments may include information from parents, related service personnel, vocational educators, and others working with the student.

7. Who Should be Part of the IEP Team When Transition is Addressed?

34 C.F.R. §300.321(b)(1) requires that the public agency specifically invite the child with a disability to attend an IEP Team meeting “if a purpose of the meeting will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals….” The notice of the IEP Team meeting must indicate that a purpose of the meeting will be consideration of postsecondary goals and transition services and that the student will be invited to the meeting, and must also identify any other agency that will be invited to send a representative. 34 C.F.R. §300.322(a)(2). If the child does not attend, the public agency “must take other steps to ensure that the child’s preferences and interests are considered.” 34 C.F.R. §300.321(b)(2). Also, “[t]o the extent appropriate, with the consent of the parents or a child who has reached the age of majority, in implementing the requirements of paragraph (b)(1) of this section, the public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.” 34 C.F.R. §300.321(b)(3). Other participants may include:
• Vocational Education teacher;
• Guidance Counselor;
• Employer;
• Job Coach;
• Adult Services providers;
• Rehabilitation Services personnel;
• Adjustment Training Center personnel;
• Postsecondary educator;
• Rehabilitation counselor;
• Interagency representative;
• Social Security/Medicaid representative;
• Tech Act representative;
• Job Service representative; or
• STEP Coordinator.

H. Requirements for Regular Education Teachers/Service Providers

A regular education teacher of a child with a disability, as a member of the IEP Team, must participate to the extent appropriate in the development of the IEP, including the determination of “(i) Appropriate positive behavioral interventions and supports and other strategies for the child; and (ii) Supplementary aids and services, program modifications, and support for school personnel consistent with §300.320(a)(4).” 34 C.F.R. §300.324(a)(3).

The public agency must ensure that the child’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and other service provider who is responsible for its implementation. 34 C.F.R. §300.323(d)(1). The public agency must ensure that each teacher and provider of services is informed of his or her specific responsibilities related to implementing the child’s IEP and the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP. 34 C.F.R. §300.323(d)(2).

I. Extended School Year (ESY) Services

While never contained in the statutory language, and only included in the regulations for the first time in 1999, court decisions and federal policy letters had dictated that districts provide special education and/or related services during time periods when school is not in session in certain instances. This became known as “Extended School Year” or “ESY” services. In most instances, IEP Teams used a “regression/recoupment” analysis to determine whether a child was eligible for such services. This meant asking the question whether the child would experience significant regression and whether the child would take a long time to recoup the skills lost during the break. Typically, ESY services would be provided during summer months, but ESY services could be provided during other breaks in school services if determined appropriate. Over the years, parents challenged districts’ use of solely the regression/recoupment analysis and there are several court decisions that require IEP Teams to consider other factors besides just regression/recoupment. In addition, the same authorities made it clear that when ESY services were needed, the services provided, the amount of time per day, and the duration of the services needed to be based on the unique needs of the child. The determination of the need for ESY services must occur each year. The fact that a child with a disability did or did not receive ESY services in previous years may not be the determinant factor.

In 1999, ESY services was added to the federal regulations and South Dakota’s administrative rule now mirrors this language at ARSD 24:05:25:26. The regulation does not list eligibility criteria, other than stating that ESY services must be provided when necessary to provide FAPE. The language of the regulation is as follows:

“(a) General. (1) Each public agency must ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a child’s IEP Team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.
(3) In implementing the requirements of this section, a public agency may not -- (i) Limit extended school year services to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or duration of those services.
(b) Definition.. As used in this section, the term extended school year services means special education and related services that –
(1) Are provided to a child with a disability - (i) Beyond the normal school year of the public agency; (ii) In accordance with the child’s IEP; and (iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.

34 C.F.R. §300.106. The State of South Dakota, Department of Education, Office of Educational Services and Support, has technical assistance documents available on its website, at http://doe.sd.gov/oess/specialed/forms/index.asp, including a 38-page document on Extended School Year Services.

J. Special Rules for Children Who Transfer School Districts

Where a child with a disability transfers to a different school district, within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in the same state [e.g., moving from one district to another in South Dakota], the new district shall provide a free appropriate public education, including services comparable to those in the previous IEP, in consultation with the parents until the new school adopts the previously held IEP or develops, adopts, and implements a new IEP. When the transfer is from another state, the new school must provide FAPE (comparable services) until the new district conducts an evaluation, if determined necessary by the district, and develops an IEP, if appropriate. 20 U.S.C. §1414(d)(2)(C)(i); 34 C.F.R. §300.323(e) and (f).

To facilitate transition to a new district, it is the responsibility of the new school to take reasonable steps to promptly obtain the child’s records, including the IEP and supporting documents, and any other records relating to the provision of special education or related services to the child from the previous school in which the child was enrolled. The previous school must take reasonable steps to promptly respond to the request for such information from the new school. 20 U.S.C. §1414(d)(2)(C)(ii); 34 C.F.R. §300.323(g).

K. Notice and Consent for Placement Changes

Under IDEA, parents must receive written notice before a school system proposes to change, or refuses to change, a child’s educational placement. 20 U.S.C. §1415(b)(3), (c); 34 C.F.R. §300.503(a). The §504 regulations also require notice to parents of “... actions regarding ... educational placement...” 34 C.F.R. §104.36. IDEA additionally requires school systems to obtain parental consent before initial placement in a program providing special education and related services. 34 C.F.R. §300.300(b). Consent is defined at 34 C.F.R. §300.9.


VI. Parent Placements in Private/Parochial Schools When the Public School has Offered FAPE (When FAPE is Not at Issue)

[Note – specific language changes contained in the 2004 amendments and 2006 regulations are, unless specifically mentioned, NOT included herein. While the language was changed throughout, basically creating additional responsibilities on the part of the public school, the essential rights (or lack thereof) of children with disabilities and their parents in these situations have not changed. The changes in the 2004 amendments are located at 20 U.S.C. §1412(a)(10). The changes contained in the 2006 regulations are located at 300.129 through §300.144 and applicable citations are listed below.]

A. Child Find

Per the 2006 regulations, each LEA must locate, identify, and evaluate all children with disabilities enrolled by parents in private, including religious, schools located in the school district served by the LEA. 34 C.F.R. §300.131(a). This includes children from out-of-state. 34 C.F.R. §300.131(f). [Prior to IDEA 2004, the resident LEA was responsible for child find of all children residing in the district attending private schools, wherever located. Now it is based on the location of the private school, not the child’s residence. For example, if parents from Buffalo (S.D. or N.Y.) placed their child in a private school in Sioux Falls, it becomes the Sioux Falls School District’s responsibility to “locate, identify, and evaluate” the child.] Child find activities for such private school children must be comparable to activities undertaken for children with disabilities in public schools. 34 C.F.R. §300.131(c). Each public school must consult with appropriate representatives of private school children with disabilities on how to carry out these activities. 34 C.F.R. §300.134(a).

Once evaluated, if the private school is located in an LEA other than the resident district, the results may not be shared with the resident district without parents’ written consent. 34 C.F.R. §300.622(b)(3). If the evaluation results are shared, and if the child is determined eligible for services, the district of residence must offer FAPE. If the parents decide to keep their child in the private school, the LEA of location must provide equitable services. 34 C.F.R. §300.132.

B. Expenditures

Each public school must spend on providing special education and related services to private school children with disabilities a proportionate amount of federal funds received, based on the number of children in private schools compared to the total number of children with disabilities in the jurisdiction of the school district. 34 C.F.R. §300.133(a). Expenditures for child find activities (locating, identifying and evaluating) may not be included in the amount schools must spend. 34 C.F.R. §300.131(d). State and local educational agencies are not prohibited from providing services to private school children with disabilities in excess of those required by federal law and regulation. 34 C.F.R. §300.133(d).

C. Services

No private school child with a disability has an individual right to receive some or all of the special education and related services the child would receive if enrolled in the public school. 34 C.F.R. §300.137(a). To determine which children will receive services, what services will be provided, how and where the services will be provided, and how the services will be evaluated, each public school must consult with representatives of private school children in light of funding and the number of private school children with disabilities, their needs, and location. 34 C.F.R. §300.134(d)(1). This consultation must occur before the public school makes any decisions affecting the opportunities of private school children to participate in services. 34 C.F.R. §300.134. The public school shall make the final decisions. 34 C.F.R. §300.137(b)(2).

If a child with a disability is enrolled in a private school and will receive special education and related services from a public school, the public school must initiate and conduct meetings to develop, review and revise a services plan (not an IEP) for the child and ensure that a representative from the private school attends each meeting or otherwise participates. 34 C.F.R. §300.137(c), §300.300.138(b).

The services provided must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that the 2006 regulations further state: “except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements of §300.18.” 34 C.F.R. §300.138(a)(1). Private school children with disabilities may receive a different amount of services than children with disabilities in public schools. 34 C.F.R. §300.138(a)(2). No private school child with a disability is entitled to any service or to any amount of a service the child would receive if enrolled in the public school. 34 C.F.R. §300.137(a).

The services plan must describe the specific special education and related services that the public school will provide to the child in light of the services the public school determined it will make available to private school children with disabilities. 34 C.F.R. §300.138(b)(1). The services plan must, to the extent appropriate, meet the requirements of IEP content with respect to the services to be provided and be developed, reviewed, and revised consistent with IEP requirements. 34 C.F.R. §300.138(b)(2).

Services may be provided on-site at the private school, including a religious school, to the extent consistent with law. 34 C.F.R. §300.139(a). If necessary for the child to benefit from or participate in the services, the child must be provided transportation from the child’s school or the child’s home to a site other than the private school and from the service site to the private school or the child’s home, depending on the timing of the services. Public schools are not, however, required to provide transportation from the child’s home to the private school. The cost of transportation may be included in the total cost the public school is required to spend on private school children. 34 C.F.R. §300.139(b).

D. Appeal Rights (or lack thereof)

Due process procedures do not apply to complaints that a public school has failed to meet the requirements of §§300.132 - 300.139, including the provision of services indicated on the child’s services plan. 34 C.F.R. §300.140(a). Due process procedures do apply to complaints that a public school has failed to meet its child find responsibilities. 34 C.F.R. §300.140(b). State complaint procedures are available to address an LEA’s violation of 300.132 through 300.135 and 300.137 through 300.144. 34 C.F.R. §300.140(c).

E. Restrictions on Funds, Personnel

Public schools may not use funds to benefit the private school. In using funds under part B to meet the special education and related services needs of students enrolled in private schools, the funds may not be used for the needs of a private school or the general needs of students enrolled in private schools. 34 C.F.R. §300.141. Funds may be used to make public school personnel available in other than public settings to the extent necessary to provide services for private school children with disabilities, so long that those services are not normally provided by the private school. 34 C.F.R. §300.142(a). Part B funds may be used to pay for services from a private school employee if the employee performs the services outside of his or her regular hours of duty and under public supervision and control. 34 C.F.R. §300.142(b).


VII. Procedural Safeguards

The SEA must ensure that each public agency establishes, maintains, and implements procedural safeguards meeting the requirements of §§300.500 though 300.536. 34 C.F.R. §300.500.

A. Records Access/Right to Participate in Meetings

Parents of a child with a disability, in accordance with procedures contained at §§300.613 through 300.621 (on confidentiality of information), have the right to examine all records relating to their child and to participate in meetings with respect to identification, evaluation, placement, and the provision of a free appropriate public education. 20 U.S.C. §1415(b)(1); 34 C.F.R. §104.36. [Note: The 2006 regulations seem to limit the statutory right to access records. They state that parents must have the “opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the child; and the provision of FAPE to the child.” 34 C.F.R. §300.501(a)(1), (2).]

B. Independent Educational Evaluations

See section IV. I. of this outline.

C. Notice

Parents must be provided prior written notice a reasonable time [5 days in South Dakota] before a public agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to the child. 20 U.S.C. §1415(b)(3); 34 C.F.R. §300.503(a); see also 34 C.F.R. §104.36 (regarding §504 notice requirements). The written notice must contain:

(A) a description of the proposed or refused action;
(B) an explanation why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(C) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
(D) sources for parents to contact to obtain assistance in understanding their procedural safeguards;
(E) a description of other factors considered by the IEP Team and why those options were rejected; and
(F) a description of the factors that are relevant to the agency’s proposal or refusal.

20 U.S.C. §1415(c); 34 C.F.R. §300.503(b). The notice must be written in language understandable to the general public and provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication is not a written language, the public agency must take steps to have the notice translated orally or by other means in the native language or other mode of communication and ensure the parent understands the contents; and there must be written evidence that these requirements were met. 34 C.F.R. §300.503(c).

D. Procedural Safeguards Notice

A copy of procedural safeguards must be given to parents only one time a school year, except that a copy must also be given to parents 1) upon initial referral or parent request for evaluation, 2) upon receipt of the first State Complaint and the first Due Process Complaint in a school year, 3) in accordance with the discipline procedures, and 4) upon parental request. 34 C.F.R. §300.504(a). See also 20 U.S.C. §1415(d)(1)(A). The procedural safeguards notice must include a full explanation of all the procedural safeguards, and must be in understandable language as described in section 300.503(c). 34 C.F.R. §300.504(c), (d).

The procedural safeguards notice must include the following:

(1) Independent educational evaluation;
(2) Prior written notice;
(3) Parental consent;
(4) Access to educational records;
(5) Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including –
(i) The time period in which to file a complaint;
(ii) The opportunity for the agency to resolve the complaint; and
(iii) The difference between the due process complaint and the State complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures.
(6) The availability of mediation;
(7) The child’s placement during the pendency of any due process complaint;
(8) Procedures for students who are subject to placement in an interim alternative educational setting;
(9) Requirements for unilateral placement by parents of children in private schools at public expense;
(10) Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;
(11) State-level appeals (if applicable in the State);
(12) Civil actions, including the time period in which to file those actions; and
(13) Attorneys’ fees.

34 C.F.R. §300.504(c); See also 20 U.S.C. §1415(d)(2).

E. Complaint Process (Non-Due Process)

Parents who believe their rights or their child’s rights have been violated under IDEA or §504 of the Rehabilitation Act may take advantage of two administrative complaint mechanisms, neither of which involve the hearing process or afford hearing rights. These involve filing complaints with the SEA or with the regional Office for Civil Rights.

1. IDEA State Complaint Procedures

The State Complaint Procedures are contained at 34 C.F.R. §§300.151- 300.153. The 2006 regulations contained some significant changes. When the SEA has found a failure to provide appropriate services, the SEA must address: “(1) The failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and (2) Appropriate future provision of services for all children with disabilities.” 34 C.F.R. §300.151(b). The SEA must include a time limit of 60 days after a complaint is filed to:

(1) Carry out an independent on-site investigation, if the SEA determines that an investigation is necessary;
(2) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations of the complaint;
(3) Provide the public agency with the opportunity to respond to the complaint, including, at a minimum - (i) At the discretion of the public agency, a proposal to resolve the complaint; and (ii) An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation….
(4) Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part; and
(5) Issue a written decision to the complainant that addresses each allegation in the complaint and contains – (i) Findings of fact and conclusions; and (ii) The reasons for the SEA’s final decision.”

34 C.F.R. §300.152(a). The 60-day time limit for the SEA to issue its written decision may be extended for exceptional circumstances or if the parents and public agency agree to extend the time limit to engage in mediation. 34 C.F.R. §300.152(b).

The 2006 regulations added greatly to the requirements for filing a State Complaint. An organization or an individual may file a signed written complaint. 34 C.F.R. §300.153(a). The State Complaint must include: (1) a statement that the public agency has violated a requirement of Part B of IDEA; (2) the facts upon which the statement is made; (3) the signature and contact information for the complainant; and (4) if alleging violations regarding a specific child, a) the name and address of the residence of the child, b) the name of the school the child attends, c) information if the child is homeless, d) specific facts related to the child and the problem, and e) a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed. 34 C.F.R. §300.153(b). The 2006 regulations still require that a complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received (§300.153(c)), but they no longer provide for a longer timeframe for ongoing violations or where compensatory services are requested. Section 300.153(d) provides that the complaint must be sent to both the SEA and the LEA/public agency. Each State must develop model forms. 34 C.F.R. §300.509(a). South Dakota has a model form on its website at http://doe.sd.gov/oess/specialed/index.asp, then click “complaint investigations.” One does not have to use the model form, so long as the document created contains the required contents. 34 C.F.R. §300.509(b).

[The changes in the form of the complaint – the information required – are similar to the information required when filing a due process complaint. The removal of longer time periods for ongoing violations or where compensatory services are requested will mean that complaints must be filed within a year of the alleged violation or will be dismissed. Significantly, this change states that a complaint must be filed within one year of the alleged violation, not when parents became aware of the violation. What this means is that in some situations, the State Complaint process will not be available because the one-year time period will have lapsed by the time parents become aware of the alleged violation. In that case, the parents’ only options will be to seek mediation or file for a due process hearing (in §300.507, parents have two years to file for a due process hearing from the date they knew or should have known of the violation).]

State Complaints generally will be a viable method for addressing “procedural” or “compliance” type of issues. In other words, one can use a State Complaint, for example, to address a violation of a procedural safeguard or the failure of a school to conduct proper evaluations or properly implement an IEP. A State Complaint probably would not be a proper method, on the other hand, for a disagreement on “how much” therapy a student requires or “what” services are required. The facts of a particular situation would dictate how to proceed.

In investigating a complaint, the SEA will conduct an investigation, which will be on-site if necessary to collect sufficient information. The investigation will generally consist of separate meetings with the person filing the complaint and with pertinent school personnel. It will also generally involve review of documentation applicable to the complaint, such as a child’s file, school policies, etc.

If a public agency is found out of compliance, the State will order a corrective action plan. The 1997 amendments to IDEA provided the SEA with additional authority in ordering relief if a school is found out of compliance (if the complaint is found valid). The corrective action plan may include implementation of technical assistance activities, negotiations, and specific corrective actions. 34 C.F.R. §300.152(b)(2). If a public agency refuses to comply with the corrective action plan, the SEA may withhold the federal funding until compliance is achieved.

If a complaint and a due process hearing are filed at the same time on the same issue, the complaint will be set aside on that same issue and the due process hearing will take precedence. If an issue raised in a complaint had previously been decided in a due process hearing, the hearing decision will be binding. 34 C.F.R. §300.152(c)(1), (2). However, a complaint alleging a public agency’s failure to implement a due process hearing decision must be resolved by the SEA. 34 C.F.R. §300.152(c)(3).

2. Section 504 Complaints

Parents may also file a complaint with the Office for Civil Rights to allege violations of Section 504 of the Rehabilitation Act. These complaints would allege that a school has discriminated against a student with a disability as compared to the general population in providing FAPE under Section 504. For example, a 504 complaint could address such matters as unequal or inappropriate services, program accessibility, and procedural violations. Complaints must be filed within 180 days of the last date of alleged discrimination.

F. Due Process Complaint

1. Subject Matter/Timelines

Under IDEA, a parent or a public agency is entitled to initiate a due process hearing complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. §1415(b)(6)(A); 34 C.F.R. §300.507(a)(1). Generally, a parent or district must request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or if the State has an explicit time limitation for requesting such a hearing, in such time as the State law allows. 20 U.S.C. §1415(f)(3)(C), 1415(b)(6)(B); 34 C.F.R. §300.507(a)(2), §300.511(e). Exceptions to the 2-year timeline apply if the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the LEA’s withholding of information from the parent that was required under Part B to be provided to the parent. 20 U.S.C. §1415(f)(3)(D); 34 C.F.R. §300.511(f). The §504 regulations also provide for a hearing procedure for parent complaints. See 34 C.F.R. §104.36.

The public agency must inform the parent of any free or low-cost legal and other relevant services available if (1) the parent requests the information, or (2) the parent or the public agency files a due process complaint. 34 C.F.R. §300.507(b).

2. Due Process Complaint Notice

a. Requirements

Either party, or their attorney, must provide due process complaint notice to the other party and forward a copy to the SEA. The notice must include: (I) the name of the child, the address or the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending; (II) in the case of a homeless child or youth, available contact information for the child and the name of the school the child is attending; (III) a description of the nature of the problem of the child relating to such proposed or refused initiation or change, including facts relating to such problem; and (IV) a proposed resolution of the problem to the extent known and available to the party at the time. 20 U.S.C. §1415(b)(7)(A); 34 C.F.R. §300.508(b). The 2004 amendments added that a party may not have a due process hearing until the party (or their attorney) files a notice that meets the above requirements. 20 U.S.C. §1415(b)(7)(B); 34 C.F.R. §300.508(c). Each State must develop model forms. 34 C.F.R. §300.509(a). South Dakota has a model form on its website at http://doe.sd.gov/oess/specialed/index.asp, then click “complaint investigations.” One does not have to use the model form, so long as the document created contains the required contents. 34 C.F.R. §300.509(b).

b. Challenging Sufficiency of Complaint Notice

The due process complaint notice shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party in writing that the receiving party believes the notice has not met the requirements of subsection (b)(7)(A). Such notification shall be provided within 15 days of receiving the complaint. Within 5 days of receipt of the notification, the hearing officer shall make a determination on the face of the notice of whether the notification meets the requirements of subsection (b)(7)(A), and shall immediately notify the parties in writing of such determination. 20 U.S.C. §1415(c)(2)(A), (C), and (D); 34 C.F.R. §300.508(d)(1), (2).

c. Amending Due Process Complaint Notice

A party may amend its due process complaint notice only if -- (I) the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting [Resolution Meeting] held pursuant to subsection (f)(1)(B); or (II) the hearing officer grants permission, except that the hearing officer may only grant such permission at any time not later than 5 days before a due process hearing occurs. The applicable timeline for a due process hearing under this part shall recommence at the time the party files an amended notice, including the timeline under subsection (f)(1)(B) [Resolution Meeting]. 20 U.S.C. §1415(c)(2)(E); 34 C.F.R. §300.508(d)(3), (4). [This means if a party amends its Due Process Complaint, all timelines start over.]

d. Answering Complaint/Late Prior Written Notice

Except as provided below, the non-complaining party shall, within 10 days of receiving the complaint, send to the other party a response that specifically addresses the issues raised in the complaint. 20 U.S.C. §1415(c)(2)(B)(ii); 34 C.F.R. §300.508(f).

However, if the local educational agency has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint, such local educational agency, within 10 days of receiving the due process complaint, must send to the parent a response that includes —

(a) an explanation of why the agency proposed or refused to take the action raised in the complaint;
(b) a description of other options that the IEP Team considered and the reasons why those options were rejected;
(c) a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and
(d) a description of the factors that are relevant to the agency’s proposal or refusal.

A response filed by a local educational agency that also includes written notice shall not be construed to preclude such local educational agency from asserting that the parent’s due process complaint notice was insufficient where appropriate. 20 U.S.C. §1415(c)(2)(B)(i)(I) and (II); 34 C.F.R. §300.508(e).

G. Mediation

The SEA and LEA must ensure that mediation is available to resolve disputes involving any matter, including matters arising prior to the filing of a due process complaint. The mediation process is voluntary on the part of the parties; must not be used to deny or delay a parent’s right to a due process hearing [but see Resolution Meeting]; or to deny any other rights afforded under this part; and is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. The State shall bear the cost of the mediation process. Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute. When a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that -- (i) states that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and (ii) is signed by both the parent and a representative of the agency who has the authority to bind such agency. A written, signed mediation agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. 20 U.S.C. §1415(e)(1), (2)(A), (D), (E), (F), and (G); 34 C.F.R. §300.506.

H. Due Process Hearing

IDEA entitles a parent to an impartial due process hearing concerning any complaint or, alternatively, concerning any proposal to initiate or change, or refusal to initiate or change, the identification, evaluation, or placement of the child or the provision of a free appropriate public education under IDEA, as well as under the discipline procedures regarding placement in an alternative educational setting. 20 U.S.C. §1415(f)(1), (k); 34 C.F.R. §300.507(a), §300.511(a), §300.532. The §504 regulations also require a hearing system. See 34 C.F.R. §104.36. Hearings under Section 504 are conducted by the LEA. [If parents ask their respective districts (especially smaller districts) for their procedure for conducting due process hearings under §504, or for a copy of procedural safeguards under §504, they may well receive a blank look.]

1. Resolution Meeting Process

Prior to the opportunity for an impartial due process hearing, the 2004 amendments have added an additional hoop for parents to jump through. The LEA “shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint -- (I) within 15 days of receiving notice of the parents’ [due process] complaint; (II) which shall include a representative of the agency who has decisionmaking authority on behalf of such agency; (III) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and (IV) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e).” 20 U.S.C. §1415(f)(1)(B)(i); 34 C.F.R. §300.310(a)(1)-(3).

“If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence.” 20 U.S.C. §1415(f)(1)(B)(ii); 34 C.F.R. §300.310(b)(1). [The Resolution Meeting process delays the timelines for a due process hearing for 30 days.]

The 2006 regulations make it clear that the 45-day time period for a due process hearing begins at the end of the 30-day period for the Resolution Meeting process. §300.510(b)(2). Except where the parties have jointly agreed to waive the Resolution process or to use mediation, if the parent fails to participate in the Resolution Meeting, the timelines for the Resolution process and due process will be delayed until the Resolution Meeting is held. §300.510(b)(3). If the LEA is unable to get the parent to participate after making reasonable efforts (per §300.322(d)), following the 30-day period, the LEA may request that the hearing officer dismiss the parents’ due process complaint. §300.510(b)(4). [Districts clearly must not only inform parents of the Resolution Meeting, but must document attempts to get parents to attend. The above clarifies that parents cannot simply choose not to participate in a Resolution Meeting if the district has not waived it.]

If the LEA fails to hold the Resolution Meeting within 15 days of receiving the parent’s due process complaint or fails to participate in the Resolution Meeting, the parent may contact the hearing officer to begin the due process hearing timeline. §300.510(b)(5). The 2006 regulations also address adjustments to the 30-day Resolution period. The 45-day timeline for the due process hearing begins the day after: 1) Both parties agree in writing to waive the Resolution Meeting; 2) Mediation or Resolution Meeting starts, but before the end of the 30-day period, both parties agree in writing that no agreement is possible; or 3) Both parties agree in writing to continue mediation at the end of the 30-day Resolution period, but later a party withdraws from the mediation process. §300.510(c).

[Lumping mediation into the 30-day Resolution period has no legal basis, as the statute contains nothing indicating if the parties to a due process hearing agree to mediation that the 30-day Resolution period applies such that the due process hearing timeline would not begin immediately. It also specifically contradicts §300.506(b)(1)(ii), which requires that the mediation process “is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint.” Lumping mediation into the 30-day Resolution period clearly does this. Where time is of the essence, and if both parties have agreed to waive the Resolution Meeting, depending on the particular case, there may be little benefit for parents to agree to attempt mediation, because if the matter was not resolved, all that would be accomplished would be a 30-day delay before the timeline for the due process hearing begins.]

“In the case that a resolution is reached to resolve the complaint at a meeting described in clause (i), the parties shall execute a legally binding agreement that is -- (I) signed by both the parent and a representative of the agency who has the authority to bind such agency; and (II) enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 U.S.C. §1415(f)(1)(B)(iii); 34 C.F.R. §300.510(d) [the regulation also adds “or, by the SEA, if the State has other mechanism or procedures that permit parties to seek enforcement of resolution agreements, pursuant to §300.537” (allowing States to create such mechanisms)].

“If the parties execute an agreement pursuant to clause (iii), a party may void such agreement within 3 business days of the agreement’s execution.” 20 U.S.C. §1415(f)(1)(B)(iv); 34 C.F.R. §300.510(e). [Unlike mediation, there are no provisions stating that discussions at Resolution Meetings are confidential and cannot be used as evidence at a due process hearing.]

2. Due Process Hearing Specifics

Depending upon state law, IDEA hearings may be conducted by either the state education agency or by the agency directly responsible for the child's education. 20 U.S.C. §1415(f)(1)(A); 34 C.F.R. §300.511(b). [South Dakota uses and has always used a one-tier system, meaning we have state-level hearing officers.] A due process hearing is, in virtually all situations, the “trial level” in special education cases. It is an adversary proceeding (in most hearings, both sides are represented by attorneys) and run generally like a trial one would see on TV. The hearing officer may not be an employee of the State educational agency or the local educational agency involved in the education or care of the child or have a personal or professional interest that conflicts with the person’s objectivity in the hearing. The hearing officer must also understand IDEA and have the knowledge and ability to conduct hearings and render decisions. 20 U.S.C. §1415(f)(3)(A); 34 C.F.R. §300.511(c).

Parties to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded –

(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;
(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and
(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions.

20 U.S.C. §1415(h). The hearing decision must be made available to the public and the state advisory panel, with personally identifiable information removed. 20 U.S.C. §1415(h)(4)(A), (B); 34 C.F.R. §300.513(d). The regulations further state that parents have the right to have the child present and to make the hearing open to the public (34 C.F.R. §300.512(c)(1), (2)) and that the record of the hearing and the findings of fact and decisions must be provided at no cost to parents. 34 C.F.R. §300.509(c)(3).

The 2004 amendments added the provision that the party requesting the due process hearing may not raise issues at the hearing that were not raised in the due process complaint notice, unless the other party agrees. 20 U.S.C. §1415(f)(3)(B); 34 C.F.R. §300.511(d). “Nothing in this section shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.” 20 U.S.C. §1415(o); 34 C.F.R. §300.512(c). There are also requirements for disclosing evidence and evaluations/recommendations to the other party not less than 5 business days prior to a hearing. 20 U.S.C. §1415(f)(2); 34 C.F.R. §300.512(a)(3), (b).

The regulations also provide, at 34 C.F.R. §300.613(a), “Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency must comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to §300.507 or §§300.530 through 300.532, or resolution session pursuant to Sec. 300.510, and in no case more than 45 days after the request has been made.” The hearing must be conducted at a time and place reasonably convenient to parents and child. 34 C.F.R. §300.515(d). A copy of the final decision must be mailed to the parties within 45 days after expiration of the 30 day period under §300.510(b), or the adjusted time periods described in §300.510(c), unless the hearing officer grants a specific extension at the request of either party. 34 C.F.R. §300.515(a), (c).

The 2004 amendments added new provisions regarding the hearing officer’s decision. They require that the hearing officer’s decision shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. Where procedural violations are alleged, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies -- (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits. These requirements do not preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section. They also do not affect the right of a parent to file a complaint with the State educational agency on procedural issues. 20 U.S.C. §1415(f)(3)(E), (F); 34 C.F.R. §300.513(a)(1)-(3).

The Act is silent as to which party bears the burden of proof and/or burden of persuasion at a due process hearing. This has been governed by individual State statutes, rules, or policies. However, the U.S. Supreme Court recently addressed the issue in Schaffer v. Weast, 126 S.Ct. 528 (U.S. 2005). The Court held that the party challenging the IEP (the party who files for due process) bears the burden of proof/persuasion at a due process hearing, unless State law indicates otherwise. [South Dakota has always placed the burden on the public agency, but now apparently follows the Schaffer decision.]

I. Appeal/Impartial Review

If the initial IDEA hearing was not conducted by the state education agency, any aggrieved party can appeal the decision to that state agency. [Note: this is not applicable in South Dakota] 20 U.S.C. §1415(g); 34 C.F.R. §300.514(b). The hearing rights set out above apply.

A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal under the provisions of subsection (g), if applicable, and may file a civil action as discussed below. Similarly, if a state-level appeal is made under subsection (g), that decision shall be final, except that any party may bring a civil action as set out below. 20 U.S.C. §1415(i)(1); 34 C.F.R. §300.514(a).


J. Civil Action

1. Right to Bring/Timeline

IDEA provides that a party aggrieved by a hearing decision (when the hearing was conducted at the state level and there is thus no right of impartial review) or aggrieved by an impartial review decision may sue by bringing a civil action in any state court of competent jurisdiction or in a federal district court without regard to the amount in controversy. 20 U.S.C. §1412(i)(2); 34 C.F.R. §300.516(a), (d). The 2004 amendments add that the party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this part, in such time as the State law allows. 20 U.S.C. §1415(i)(2)(A) and (B); 34 C.F.R. §300.516(b).

2. Standard of Review

In any action brought under this paragraph, the court-- (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. 20 U.S.C. §1415(i)(2)(C); 34 C.F.R. §300.516(c).

3. Exhaustion of Administrative Remedies

“Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.” 20 U.S.C. §1415(l); 34 C.F.R. §300.516(e). [Parents cannot go straight into court in most instances, but must first go through the due process hearing procedure. Even if parents bring an action under a different law, the case will be dismissed if the relief requested could be obtained under IDEA.]

K. Child’s Placement Status During Administrative and Judicial Proceedings

Except for situations involving discipline proceedings, wherein special rules apply, “during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.” 34 C.F.R. §300.518(a); 20 U.S.C. §1415(j). If the complaint involves initial admission to school, the child, with parental consent, must be placed in the public school program until all administrative and judicial proceedings are completed. 20 U.S.C. §1415(j); 34 C.F.R. §300.518(b).

A new section was added regarding children transitioning from Part C, stating: “[T]he public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under 300.300(b), then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.” 34 C.F.R. §300.518(c).

The regulations further state that where a hearing officer, or State review official, agrees with the parents that a change in placement is appropriate, the favorable placement decision should be deemed an agreement between the parents and the State within the meaning of 20 U.S.C. §1415(j); 34 C.F.R. §300.518(d). The placement thus can and should be implemented at public expense even if the school system appeals the decision to a court. See Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990); Grace B. v. Lexington School Committee, 762 F. Supp. 416 (D. Mass. 1991); Kantak v. Liverpool Central School District, 16 EHLR 643 (N.D.N.Y. 1990).

L. Remedies

IDEA permits courts (and hearing officers) to order such relief as is “appropriate” in special education cases. 20 U.S.C. §1415(i)(2)(C); 34 C.F.R. §300.516(b)(3). Similarly, §504 entitles students who successfully pursue their rights under this statute to a variety of remedies as relief for having suffered discrimination. Due process hearing officers and courts can order a school system to take any number of actions in order to correct violations of IDEA and §504, including modifying an IEP, implementing an existing IEP it has failed to carry out, providing a particular placement, providing a particular related service(s), etc. In addition, compensatory education and reimbursement for special education and related services paid for by parents are available remedies under proper circumstances. The door for monetary damages is all but closed.

1. Reimbursement

a. Case Law

The Supreme Court approved retroactive reimbursement as an IDEA remedy in School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996 (1985). In that case, the court ruled that “appropriate” relief under IDEA can include an order requiring a local school district to reimburse parents for the cost of obtaining an appropriate education when the school system has failed to provide a free appropriate public education meeting IDEA standards. 471 U.S. at 407, 105 S. Ct. at 2003. School systems should ordinarily be ordered to reimburse parents for such costs unless “equitable considerations” would make such an order unfair under the circumstances of the case. Id. See also Florence County School District Four v. Carter, 114 S.Ct. 361 (1994).

The remedy of reimbursement also applies where a school does not provide appropriate related services and parents enroll their child in private services. Rapid City School District 51-4 v. Vahle, 922 F.2d 476, 17 EHLR 276 (8th Cir. 1990).

Back to Publications
I.D.E.A. Outline - pages 54-70
by John A. Hamilton


Parents need not precisely replicate the placement a school district should have provided; parents may receive reimbursement for the costs incurred in providing special education or related services so long as these educational services meet the standard of “appropriateness” established by IDEA. Carter specifically held that the parents’ private placement need not meet State standards. Carter, supra; see also Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1161 (5th Cir. 1986) (program in which parent enrolled child, “although it might not have been adequate under the EAHCA, was better than no summer program at all.... Burlington rule is not so narrow as to permit reimbursement only when the interim placement chosen by the parent is found to be the exact proper placement required under the Act”); see also Garland Independent School District v. Wilks, 657 F. Supp. 1163, 1166-67 (N.D. Tex. 1987) (low income parent was entitled to reimbursement for furnishing those services intended, to the extent she could afford, to create a “facsimile” of the residential placement ultimately ordered by the court); Kusler v. Pierre School District, unpublished (D.S.D. 2002) (awarding over $44,000 in reimbursement for out-of-state placement).

b. Unilateral Placements by Parents at Public Expense (Statutory Provisions)

The IDEA Amendments of 1997, with further revisions in 2004, have codified the Supreme Court’s decisions in Burlington and Carter. As stated previously, one of the procedural safeguards in the IDEA is “Requirements for unilateral placement by parents of children in private schools at public expense.” Schools are not required to reimburse parents for a private placement if the school has made a free appropriate public education available to the child. 20 U.S.C. §1412(a)(10)(C)(i); 34 C.F.R. §300.148(a). If parents of a child with a disability who previously received services from the district enroll their child in a private school without consent of or referral by the public school, a court or hearing officer may require the public school to reimburse the parents if the public school has not made a free appropriate public education available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. 20 U.S.C. §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(c).

To be eligible for this reimbursement so that it is not denied or reduced, parents must either: 1) inform the IEP Team at the most recent IEP meeting prior to removal of the child from the public school that they are rejecting the proposed placement, their concerns, and their intent to enroll their child in a private school at public expense; or 2) at least ten business days prior to removal, give written notice to the school of the same information. If, after giving notice but prior to removal, the school seeks to evaluate the child, the parents must make the child available or reimbursement may be reduced or denied. Reimbursement may also be reduced or denied upon a judicial finding of unreasonableness on the part of the parent. 20 U.S.C. §1412(a)(10)(C)(iii); 34 CFR §300.148(d)(1)-(3). However, reimbursement shall not be reduced or denied for the failure of a parent to give notice, per 20 U.S.C. §1412(a)(10)(C)(iv), if:

1) The school prevented the parent from providing such notice;
2) The parents had not received notice of the notice requirement; or
3) Compliance would likely result in physical harm to the child.

Furthermore, reimbursement may, at the discretion of a court or hearing officer, not be reduced or denied for the failure of a parent to provide notice if:

1) The parent is illiterate or cannot write in English; or
2) Compliance would likely result in serious emotional harm to the child.

See also, 34 C.F.R. §300.148(e).

2. Compensatory Education

Since the Supreme Court’s decision in Burlington, courts have consistently held that compensatory education -- meaning additional special education and/or related services to make up for the time during which a school system failed to provide a free appropriate public education -- is also an appropriate remedy under IDEA. Comparing compensatory education to the reimbursement approved in Burlington, these courts have recognized that without compensatory education, students whose parents lack the resources to place them in private programs and seek reimbursement have no way to vindicate their IDEA rights. Compensatory education should therefore be available whenever necessary to secure the right to a free appropriate education. See Brookings School District, 22 IDELR 1099 (SEA S.D. 1995) (granting compensatory services for the school’s failure to provide physical therapy and aide services contained in the child’s IEP). Although most reported judicial decisions awarding compensatory education have done so under IDEA, the remedy should be available under §504 as well. See Mrs. C. v. Wheaton, 916 F. 2d 69, 75 (2d Cir. 1990).

3. Monetary Damages (Compensatory/Punitive)

The general answer to the question of whether compensatory or punitive damages are available under IDEA is “no,” they are not. Courts have not interpreted “appropriate relief” in that manner. However, in very egregious circumstances, it may be that a court would award monetary damages. This could occur either directly under IDEA, or more realistically by bringing a 42 U.S.C. §1983 action based on a violation of IDEA. Many have tried this, and few have ever succeeded. Most of the federal circuits have ruled that damages based on IDEA are not an allowable remedy, including the Eighth Circuit (which includes South Dakota).

It used to be possible to bring a damage claim for violation of §504. In fact, the 8th Circuit Court of Appeals had ruled punitive damages were available under §504 in Gorman v. Easley, 257 F.3d 738 (8th Cir. 2001). That was short-lived, however, as the United States Supreme Court accepted the case on review due to a split in the federal circuits on the issue. In its decision in Barnes v. Gorman (2002), the Supreme Court ruled that punitive damages are not available under §504.

M. Attorneys’ Fees

Parents who prevail in IDEA disputes may recover reasonable attorneys’ fees (at prevailing market rates) and costs, subject to certain conditions. 20 U.S.C. §1415(i)(3)(B)-(G); 34 C.F.R. §300.517(a)(1)(i). Attorneys’ fees are available for parents who prevail in administrative due process hearings (with no subsequent appeal to court) as well as for those who prevail in court. See, e.g., Moore v. D.C. Board of Education, 907 F.2d 165 (D.C. Cir.), vacating 886 F.2d 335, cert. denied, 111 S. Ct. 556 (1990); McSomebodies v. Burlington Elementary and Secondary School District, 886 F.2d 1558 (9th Cir. 1988), supplemented March 2, 1990, 897 F.2d 974; Mitten v. Muscogee County School District, 877 F.2d 932 (11th Cir. 1989), cert. denied, 110 S. Ct. 1117 (1990); Duane M. v. Orleans Parish School Board, 861 F.2d 115 (5th Cir. 1988); Eggers v. Bullitt County School District, 854 F.2d 892 (6th Cir. 1988). Fees may be recoverable for work done in settling IDEA disputes prior to a due process hearing. The Supreme Court held, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), in evaluating a plaintiff’s entitlement to attorneys’ fees under the Americans with Disabilities Act and the Fair Housing Amendments Act, that parties were granted “prevailing party” status only when they receive favorable judgments on the merits or enter into settlement agreements enforced by a consent decree. Many courts have subsequently applied the ruling in Buckhannon to the IDEA, denying fees where a settlement was reached after filing for a due process hearing or after bringing a civil action in court. Other courts have ruled Buckhannon does not apply to IDEA and awarded parents fees in cases that settle. [Of course, payment of attorneys’ fees can always be made part of a settlement agreement, whether it be a result of mediation, Resolution Meeting, or otherwise. In Buckhannon and the cases interpreting it, attorneys’ fees were not part of the settlement agreement.]

Parents are also entitled to an award of attorneys’ fees regardless of whether they are represented by private or publicly funded attorneys. Eggers v. Bullit County School District, 854 F.2d 892 (6th Cir. 1988); Rapid City School District v. Vahle, 922 F.2d 476, 17 EHLR 276 (8th Cir. 1990); Yankton School District v. Schramm, 93 F.3d 1369, 24 IDELR 704 (8th Cir. 1996); Russell v. Brookings School District; 24 IDELR 663 and 24 IDELR 684 (D.S.D. 1996).

The 2004 amendments made some changes to the attorneys’ fees provisions. In addition to the provisions for attorneys’ fees for prevailing parents, the new language states that fees may be awarded to a prevailing party who is an SEA or LEA “against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation” or “to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” 20 U.S.C. §1415(i)(3)(B); 34 C.F.R. §300.517(a)(1)(ii), (iii).

“Attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e).” 20 U.S.C. §1415(i)(3)(D)(ii); 34 C.F.R. §300.517(c)(2)(ii). Attorneys’ fees are not allowed for Resolution Meetings. 20 U.S.C. §1415(i)(3)(D)(iii); 34 C.F.R. §300.517(c)(2)(iii).

On June 26, 2006, the United States Supreme Court issued a 6-3 decision in Arlington Central School District Board of Education v. Murphy, 126 S.Ct. 2455 (U.S. 2006), reversing the decision by the Second Circuit Court of Appeals and ruling that IDEA does not authorize prevailing parents to recover fees for services rendered by experts in IDEA actions.

Parties who prevail in court on §504 claims may also be awarded attorneys’ fees. 29 U.S.C. §794a(b).

N. Surrogate Parents

The SEA and LEAs must have procedures to protect the rights of the child whenever the parents of the child are not known, they cannot be located after reasonable efforts, or when the child is a ward of the state. These procedures include assignment of an individual to act as a surrogate for the parents. The surrogate cannot be an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child. If the child is a ward of the state, a judge may appoint the surrogate parent. 34 C.F.R. §300.519(c). An “unaccompanied homeless youth” may be appointed a temporary surrogate who may be an employee of the SEA, LEA, or other agency involved in the child’s education until one meeting all the criteria for a surrogate parent can be appointed. 34 C.F.R. §300.519(f). The SEA must make reasonable efforts to ensure appointment of a surrogate within 30 days of the determination that one is needed. 20 U.S.C. §1415(b)(2); 34 C.F.R. §300.518(h).

O. Transfer of Rights at Age of Majority

“When a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law), the district must notify the child and the parents that all rights previously accorded to parents transfer to the child. This provision also applies to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution.” 20 U.S.C. §1415(m)(1); 34 C.F.R. §300.520(a). “Beginning not later than one year before the child reaches the age of majority under State law, the IEP must include a statement that the child has been informed of the child’s rights under Part B of the Act, if any, that will transfer to the child on reaching he age of majority under Sec. 300.520.” 34 C.F.R. §300.320(c). “A State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child’s eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.” 34 C.F.R. §300.520(b).

The age of majority is 18 in South Dakota. It is doubtful §300.520(b) is consistent with SD law. [Parents need to understand that regardless of the severity of the child’s disability, all parental rights under IDEA (and otherwise) will transfer to the child upon reaching age of majority. If guardianship is contemplated, parents need to plan ahead.]

P. Graduation Requirements

In South Dakota, “Completion of an approved secondary special education program with a regular high school diploma signifies that the student no longer requires special education services. Graduation from high school with a regular high school diploma constitutes a change in placement requiring written prior notice ….

The instructional program shall be specified on the [IEP]. The [IEP] shall state specifically how the student in need of special education or special education and related services will satisfy the district’s graduation requirements. Parents must be informed through the [IEP] process at least one year in advance of the intent to graduate their child upon completion of the [IEP] and to terminate services by graduation.” ARSD 24:05:27:12.

If a district fails to provide notice of the intent to graduate a child on an IEP at least one year prior to such graduation, the district may not graduate the child should the parents wish for special education services to continue. Parents have been successful in preventing or reversing a graduation where the required notice was not given, through the State Complaint process.

The regulations similarly provide that FAPE is not required for children with disabilities who have graduated from high school with a regular high school diploma. However, this exception to providing FAPE does not apply to children who have graduated from high school but have not been awarded a regular high school diploma. Graduation from high school constitutes a change in placement that requires prior written notice per §300.503. “Regular high school diploma” does not include an alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED). 34 C.F.R. §300.102(a)(3)(i)-(iv).

Q. Discipline Procedures

As an introductory comment, the discipline laws and regulations can be very complicated. They were statutorily created in 1997, with their genesis coming from case law. The 1999 regulations added further clarification and definitions. Congress then rewrote most of the discipline law with the 2004 amendments. Further clarification was provided with the 2006 regulations. Ultimately, however, some significant questions remain, as will be discussed herein.

Many parents are of the belief that children with disabilities cannot be disciplined. That is not true. In fact, the intent of the 2004 amendments was to make it easier for schools to discipline children with disabilities. The following are some introductory questions:

• Can a child on an IEP be suspended from school? Yes, with no questions asked for up to 10 school days at a time.
• Can a child on an IEP be suspended for more than 10 consecutive days at a time? Yes, so long as certain procedures are followed.
• Can a child on an IEP be expelled from school? Yes, so long as certain procedures are followed.
• Can a child on an IEP be removed to a more restrictive setting when the child’s disability caused the behavior in question? Usually not, with specific exceptions, or unless ordered by a hearing officer or court.
• If a child on an IEP is suspended or expelled for over 10 consecutive school days, is the child entitled to any services during that time out of school? Yes. A school can suspend or expel from the child’s current placement, but then must continue to provide services in an alternative setting.

1. Change of Placement

The regulations provide that a "change of placement" occurs if a child with a disability is:

• removed from the child’s current educational placement for more than 10 consecutive school days; or
• the child has been subjected to a series of removals that constitute a pattern 1) because the series of removals total more than 10 school days in a school year, 2) because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals, and 3) because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.

34 C.F.R. §300.536(a). The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change in placement, but that determination is subject to review through due process and judicial proceedings. 34 C.F.R. §536(b).

2. Authority of School Personnel

One favorable aspect of the 2004 amendments is the provision allowing schools flexibility or latitude in how they address situations. “School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement, consistent with the requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.” 34 C.F.R. §536(b); 20 U.S.C. §1415(k)(1)(A).

“School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 [consecutive] school days (to the extent such alternatives are applied to children without disabilities).” 20 U.S.C. §1415(k)(1)(B); 34 C.F.R. §300.530(b)(1).

The regulations provide that additional removals of not more than 10 consecutive school days in the same school year for separate incidents of misconduct are allowed, as long as those removals do not constitute a change in placement under 300.536. 34 C.F.R. §300.530(b)(1). Note, however, that after a child with a disability has been removed for more than 10 school days in a given school year, during any subsequent days of removal the school must provide services as set out in 300.530(d). 34 C.F.R. §300.530(b)(2).

If school personnel seek to order a change in placement that would exceed 10 consecutive school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability (see below), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in 300.530(d). 34 C.F.R. §300.530(c); See also 20 U.S.C. §1415(k)(1)(C).

3. Services

The 2006 regulations set out different levels of services for children with disabilities subject to the discipline depending on the situation. Going in order of how the regulation is set out:

“A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c) [removal for more than 10 consecutive school days], or (g) [special circumstances – discussed below] of this section must--
(i) Continue to receive educational services, as provided in §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and
(ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.” 34 C.F.R. §300.530(d)(1).

For children with disabilities who have been removed for less than 10 school days in a school year, the regulation states: “A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.” 34 C.F.R. §300.530(d)(3).

A new provision is in place for those children who have been removed for over 10 school days in a school year, but where the removal does not constitute a change in placement: “After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under §300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” 34 C.F.R. §300.530(d)(4).

Finally, “If the removal is a change of placement under §300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.” 34 C.F.R. §300.530(d)(5).

“The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.” 34 C.F.R. §300.530(d)(2). Further, “The child’s IEP Team determines the interim alternative educational setting for services under §300.530(c), (d)(5), and (g).” 34 C.F.R. §300.531. [In other words, only in situations where there is a “change in placement” does the IEP Team determine the interim alternative educational setting.]

4. Manifestation Determination Review

It is the intent of the IDEA that children with disabilities not be unreasonably disciplined if their behavior is caused by the child's disability. The 2004 amendments changed the manifestation determination language, allegedly to make it more difficult to show behavior was a manifestation of the child’s disability.

“Except as provided in subparagraph (B) [removal for up to 10 school days], within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine -
(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
(II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.
If the group determines that either subclause (I) or (II) is applicable for the child, the conduct shall be determined to be a manifestation of the child’s disability.”

20 U.S.C. §1415(k)(1)(E); 34 C.F.R. §300.530(e)(1), (2). If the determination is that the conduct was a manifestation of the child’s disability, the IEP Team shall —

(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in subparagraph (C) or (G);
(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
(iii) except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan. 20 U.S.C. §1415(k)(1)(F); 34 C.F.R. §300.530(f)(1), (2).

If the result of the manifestation review is a determination that the child’s behavior was not a manifestation of the child’s disability, again, relevant disciplinary procedures that apply to nondisabled children apply, except that the school must continue to provide services to the extent necessary to enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. This determination is made by the IEP team. 34 CFR §300.530(d)(1)(i).

5. South Dakota Provisions

South Dakota’s administrative rules addressing disciplinary situtations differs somewhat from what is contained in the federal regulations, as they also include hearings before the school board. The following addresses suspensions of over ten consecutive school days:

“Right to request hearing -- Notice of hearing - If the superintendent finds grounds for a long-term suspension from a class or classes, the superintendent may exclude the pupil from a class or classes by using the short-term suspension procedure in § 24:07:02:01. The superintendent shall give a written notice to the pupil's parent or to a pupil who is 18 years of age or older or an emancipated minor and may schedule a hearing. The notice shall contain the following minimum information:

(1) The policy allegedly violated;
(2) The reason for the disciplinary proceedings;
(3) Notice of the right to request a hearing or waive the right to a hearing.
(4) A description of the hearing procedure;
(5) A statement that the pupil's records are available at the school for examination by the pupil's parent or authorized representative; and
(6) A statement that the pupil may present witnesses.

If a hearing is requested, the superintendent shall give notice to each school board member of an appeal to the board for a hearing. The superintendent shall set the date, time, and place for the hearing and send notice by first class mail to each school board member and by certified mail, return receipt requested, to the pupil's parent or to a pupil who is 18 years of age or older or an emancipated minor.

If no hearing is requested or the hearing is waived, the action of the superintendent is final.”

ARSD 24:07:03:02. Therefore, before any suspension of over 10 consecutive school days or expulsion can take place, the child with a disability and the child’s parents are entitled to a hearing before the school board, which can be waived. Of course, if the child’s behavior is determined to be a manifestation of the child’s disability and no special circumstances are involved, any school board-ordered removal would be essentially overruled by IDEA, as the child must then be immediately returned to the child’s current placement.


South Dakota also has administrative rules within its special education rules on Suspension (ARSD Chapter 24:05:26) and Expulsion (ARSD Chapter 24:05:26.01) that both mirror the federal regulations and contain sections referencing and “borrowing” from Article 24:07 on Student Due Process.

6. Special Circumstances

Following the 2004 amendments, certain students with disabilities are treated differently, or have fewer rights, than others when it comes to the area of discipline. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, in cases where a child —

(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or
(iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency. 20 U.S.C. §1415(k)(1)(G); 34 C.F.R. §300.530(g).

7. Notification

“Not later than the date on which the decision to take disciplinary action is made [to make a removal that constitutes a change in placement], the local educational agency shall notify the parents of that decision, and of all procedural safeguards accorded under this section.” 20 U.S.C. §1415(k)(1)(H); 34 C.F.R. §300.530(h).

8. Appeals

Both parents and school districts can file for a due process hearing regarding discipline matters. Those provisions relate to parent appeals of school decisions and LEAs desiring to remove a child from the child’s current placement because of perceived “dangerousness.” Those provisions state:

“The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under this subsection, or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing.”

20 U.S.C. §1415(k)(3)(A); 34 C.F.R. §300.532(a). [The regulation refers to parents who disagree “with any decision regarding placement under §§300.530 and 300.531, or the manifestation determination under §300.530(e).”]

“A hearing officer shall hear, and make a determination regarding, an appeal requested under subparagraph (A). … [T]he hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may –

(I) return a child with a disability to the placement from which the child was removed; or
(II) order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.”

20 U.S.C. §1415(k)(3)(B); 34 C.F.R. §300.532(b)(2).

[Compare - This criteria differs vastly from what was created in IDEA `97, which required that a hearing officer:

• Determines that the public agency has demonstrated by substantial evidence (more than a preponderance, which is the standard used at regular due process hearings) that maintaining the current placement is substantially likely to result in injury to the child or to others;
• Considers the appropriateness of the child’s current placement;
• Considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services; and
• Determines that the interim alternative educational setting that is proposed by the school personnel who have consulted with the child’s special education teacher, meets the requirements of the Act.

34 CFR §300.521 (1999). Each of these requirements had to have been met under IDEA `97 for the hearing officer to make a ruling of “dangerousness.”]

IDEA 2004, in both the statute and regulations, includes what a hearing officer may do with a situation, but has removed all criteria the hearing officer should consider in making a ruling. However, all is not lost. In the comments accompanying the 2006 regulations, the Department of Education stated:

“Comment: A few commenters recommended requiring that the hearing officer must consider the appropriateness of the child’s current placement; consider whether the public agency has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services; and determine that the interim alternative educational setting meets specified requirements.

Discussion: We are not making changes to the regulations, regarding a hearing officer’s decision-making, to require a hearing officer to consider such factors as those suggested by the commenters because a hearing officer must have the ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice and exercise his or her judgment in the context of all the factors involved in an individual case.”

Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46,539, 46,724 (Aug. 14, 2006) (to be codified at 34 C.F.R. §300.532) (emphasis added). Thus, the intent in removing the IDEA 1997 language was to make sure a hearing officer was not limited in the factors considered.

Prior to IDEA ‘97, schools had to go directly into federal court to seek a “Honig” injunction to have a child removed due to alleged “dangerousness.” Again, Honig was the Supreme Court case that ruled that a suspension for more than 10 school days constituted a change in placement, that stay put applied to disciplinary proceedings, and that an exception could be made to stay put where a school could establish that keeping a child in the current placement was substantially likely to result in injury to the child or others. It is not clear in the law whether this avenue is still available, given the administrative procedure set out in IDEA.

9. Interim Alternative Educational Setting

The “Interim Alternative Educational Setting” must meet certain requirements:

• The interim alternative educational setting described in subparagraphs (C) and (G) must be determined by the IEP team; 20 U.S.C. §1415(k)(2); 34 C.F.R. §300.531.
• A setting must be selected where the child will continue to receive educational services so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; 20 U.S.C. §1415(k)(1)(D)(i); 34 C.F.R. §300.530(d)(i).
• Receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur. 20 U.S.C. §1415(k)(1)(D)(ii); 34 C.F.R. §300.531(d)(ii).

10. Placement During Appeals (Stay Put)

The general rule, of course, is that during the pendency of any due process hearing or judicial review, the child remains in the current placement unless the parents and school agree otherwise, except that if a hearing officer rules in a parent’s favor that a change in placement is appropriate, that placement is considered an agreement between the parties. 34 CFR §300.518. Special rules apply in discipline matters:

“When an appeal under §300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in §300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.”

34 C.F.R. §300.533; See also 20 U.S.C. §1415(k)(4)(A).

[Keeping in mind that the appeal under section 300.532 may be made by parents or the LEA, the above regulation ignores the fact that all children will not have been placed in an interim alternative educational setting when a hearing is requested. In other words, when it has been determined that the child’s behavior is a manifestation of his or her disability, such that the child must remain in the current placement, and then the public agency appeals under section 300.532 to attempt to have the child removed by proving that maintaining the current placement is substantially likely to result in injury to the child or to others, that child will not be in an interim alternative educational setting, but rather the child’s current setting, such as a regular classroom. Thus, there would be no interim alternative educational setting for a child to remain in, since the child was not there in the first place. This stay-put rule applying to discipline does not seem to cover that situation. Presumably, those children would then remain in their current placement pending the hearing officer’s decision.]

As noted above, the hearing officer can order a child whose placement is “substantially likely to result in injury to the child or to others” to an appropriate interim alternative educational setting for not more than 45 school days. The regulations allow a district to repeat the appeal process under §300.532 “if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.” 34 C.F.R. §300.532(b)(3).

11. Expedited Due Process Hearing

Whenever a hearing is requested under §300.532(a), the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§300.507 and 300.508(a) through (c) and §§300.510 through 300.514, except that certain rights or requirements are limited. 34 C.F.R. §300.532(c)(1). See also 20 U.S.C. §1415(k)(4)(B). The “sufficiency of due process complaint” provisions of §300.508(d) do not apply in expedited due process hearings.

The SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing. 34 C.F.R. §300.532(c)(2). Unless the parents and LEA agree in writing to waive the resolution meeting described in paragraph (c)(3)(i) of this section, or agree to use the mediation process described in §300.506 -- (i) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and (ii) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint. 34 C.F.R. §300.532(c)(3). [The difference between this Resolution Meeting and the one under §300.510 for other due process hearings is that the issues must be resolved to both parties’ satisfaction, not just the parents, and it occurs regardless of which party filed for hearing. The Resolution Meeting must occur within seven days of the date the due process complaint is received and must be resolved within 15 days (calendar days, not school days) of receipt of the due process complaint. Also, there is no statement that if resolution is not reached in the 15 days, at that point the 20 school days timeline commences. In other words, the Resolution process is to occur within the 20 school days and does not delay the hearing because of the mandatory language that the hearing must occur within 20 school days.]

A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (c)(3) of this section, the State must ensure that the requirements in §§300.510 through 300.514 are met. 34 C.F.R. §300.532(c)(4). The decisions on expedited due process hearings are appealable consistent with §300.514.

12. Protections for Children Not Yet Eligible for Special Education and Related Services

a. General Rule

“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 violates a code of student conduct, may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.”

20 U.S.C. §1415(k)(5)(A); 34 C.F.R. §300.534(a).

b. Basis of Knowledge

“A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred –

(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;
(ii) the parent of the child has requested an evaluation of the child pursuant to section 614(a)(1)(B); or
(iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.”

20 U.S.C. §1415(k)(5)(B); 34 C.F.R. §300.534(b)(1)-(3).

c. Exception

“A local educational agency shall not be deemed to have knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant to section 614 or has refused services under this part or the child has been evaluated and it was determined that the child was not a child with a disability under this part.”

20 U.S.C. §1415(k)(5)(C); 34 C.F.R. §300.534(c)(1), (2).

d. Conditions That Apply if no Basis of Knowledge

“(i) If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B) or (C)) prior to taking disciplinary measures against the child, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).

(ii) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under this subsection, the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.”

20 U.S.C. §1415(k)(5)(D)(i) and (ii); 34 C.F.R. §300.534(d)(1), (2). The “educational placement determined by school authorities” referred to in the statute could include suspension or expulsion without educational services. 34 C.F.R. §300.534(d)(2)(ii).

13. Referral to and Action by Law Enforcement and Judicial Authorities

“Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.”

20 U.S.C. §1415(k)(6)(A); 34 C.F.R. §300.535(a).

“An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.”

20 U.S.C. §1415(k)(6)(B); 34 C.F.R. §300.535(b)(1).

14. Definitions

“CONTROLLED SUBSTANCE - The term ‘controlled substance’ means a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. §812(c)).

ILLEGAL DRUG - The term ‘illegal drug’ means a controlled substance but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.

WEAPON - The term ‘weapon’ has the meaning given the term ‘dangerous weapon’ under section 930(g)(2) of title 18, United States Code.

SERIOUS BODILY INJURY - The term ‘serious bodily injury’ has the meaning given the term ‘serious bodily injury’ under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.”

20 U.S.C. §1415(k)(7); 34 C.F.R. §300.530(i)(1)-(4).

R. Section 504

Section 504 requires schools to establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity to examine records, an impartial hearing, and a review procedure. 34 C.F.R. §104.36. The Section 504 regulations do not address discipline. Under Section 504, schools do not have to continue to serve children suspended or expelled from school.

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MENTAL HEALTH ADVANCE DIRECTIVES*
by PAIMI Program

Please Note: This article restates South Dakota law on the advance directive for mental health treatment (SDCL Ch. 27A-16). If there is anything in this pamphlet that you do not understand, ask a lawyer to explain it to you.

NOTICE TO PERSON MAKING A DECLARATION AND POWER OF ATTORNEY FOR MENTAL HEALTH TREATMENT

This is an important legal document. It creates a declaration for mental illness treatment and names an attorney-in-fact and an alternative attorney-in-fact to make mental health treatment decisions for you if you become incapable. Before signing the document you should know these important facts:

• This document allows you to make decisions in advance about three types of mental illness treatment: psychotropic medication, convulsive therapy, and short-term (up to 30 days) admission to a treatment facility. It is very important that you declare your instructions carefully and review this document regularly. The instructions that you include in this declaration will be followed only if a court or two physicians believe that you are incapable of making treatment decisions. Otherwise, you will be considered capable to give consent for the treatments.

• You may also appoint a person as your attorney-in-fact to make these treatment decisions for you if you become incapable. Preference shall be given to immediate family members in the following order: spouse, parent, adult child, and sibling. It is important that your attorney-in-fact be knowledgeable about mental illness issues and the decisions you have made. The person you appoint has a duty to act in a manner that is consistent with your desires as stated in this document. If your desires are not stated or otherwise made known to the attorney-in-fact the attorney-in-fact has a duty to act in a manner consistent with what the person in good faith believes to be your best interest. For the appointment to be effective, the person you appoint must accept the appointment in writing. The person also has the right to withdraw from acting as your attorney-in-fact at any time.

This document will continue in effect for three years unless you become incapable of participating in mental illness treatment decisions. If this occurs, the directive will continue in effect until you are no longer incapable.

You have the right to revoke this document in whole or in part at any time you have not been determined to be incapable. YOU MAY NOT REVOKE THIS DECLARATION AND POWER OF ATTORNEY WHEN YOU ARE CONSIDERED INCAPABLE BY A COURT OR TWO PHYSICIANS. A revocation is effective when it is communicated to your attending physician or other mental health care provider.

If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you. This declaration will not be valid unless it is signed by two qualified witnesses who are present when you sign or acknowledge your signature.

**The attending physician or mental health provider may treat or contrary to your wishes in this declaration if: (a) you are committed to the Mickelson Center (MCN; (b) treatment is authorized by the circuit court; or (c) in cases of emergency endangering life or health. The declaration does not limit authority either to take you into custody or to admit, retain, or treat you in a health care facility.

DECLARATION AND POWER OF ATTORNEY FOR MENTAL HEALTH TREATMENT

I, ______________________, being an adult of sound mind, willfully and voluntarily make this declaration for mental illness treatment to be followed if it is determined by a court or by two physicians that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to consent to mental illness treatment. “Mental illness treatment” means convulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a health care facility for up to 30 days. I understand that I may become incapable of giving informed consent for mental illness treatment due to the symptoms of a diagnosed mental disorder. These symptoms may include: ___________________________________________________________.

PSYCHOTROPICE MEDICATIONS

If I become incapable of giving informed consent for mental illness, my wishes regarding psychotropic medications are as follows: _____________________________________________________________. I
Consent to the administration of psychotropic medications. Comments: ___________________________.

CONVULSIVE TREATMENT

If I become incapable of giving informed consent for mental illness treatment, my wishes regarding convulsive treatment are as follows: ______________________________________________________. I consent to the administration of convulsive treatment. Comments: _______________________________.

ADMISSION TO AND RETENTION IN FACILITY

If I become incapable of giving informed consent for mental illness treatment, my wishes regarding admission to and retention in a health care facility for mental illness treatment are as follows: ___________________________________________________________________________________. I consent to being admitted to a health care facility for mental illness treatment. This directive does not provide consent to retain me in a facility for more than 30 days. Comments: _______________________.

ADDITIONAL REFERENCES OR INSTRUCTIONS

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

POWER OF ATTORNEY FOR MENTAL HEALTH TREATMENT

I hereby appoint the following person to act as my attorney-in-fact to make decisions regarding my mental health treatment if I become incapable of giving informed consent for that treatment:

NAME:

ADDRESS:

PHONE #:

If the person named refuses or is unable to act on my behalf or if I revoke that person’s authority to act as my attorney-in-fact, I authorize the following person to act as my attorney-in-fact:

NAME:

ADDRESS:

PHONE #:

My attorney-in-fact is authorized to make decisions that are consistent with the wishes I have expressed in my declaration for mental illness treatment, or if not expressed, as are otherwise known to my attorney-in-fact. If my wishes are not expressed and are not otherwise known by my attorney-in-fact, my attorney-in-fact is to act in what he/she believes to by my best interests.

______________________________________
(Signature of principal/date)

AFFIRMATION OF WITNESSES

We affirm that the principal is personally known to us, that the principal has read the accompanying Notice to Person Making a Declaration and Power of Attorney for Mental Illness Treatment or has had the notice read and explained, that the principal signed or acknowledged the principal’s signature on this declaration and power of attorney for mental illness treatment in our presence, that the principal appears to be of sound mind and not under duress, fraud, or undue influence, that neither of us is:

• A person appointed as an attorney-in-fact by this document;
• The principal’s attending physician or mental health service provider or a relative of the physician provider;
• the owner or operator or a relative of an owner or operator of a facility in which the principal is a patient or resident; or
• A person related to the principal by blood, marriage or adoption.

Witnessed by:
_______________________________________________
(signature of witness/date-print name of witness)

_______________________________________________
(signature of witness/date-print name)

ACCEPTANCE OF APPOINTMENT AS ATTORNEY-IN-FACT

I accept this appointment and agree to serve as attorney-in-fact to make decisions about mental illness treatment for the principal. I understand that I have a duty to act in a manner that is consistent with the desires of the principal as expressed in this appointment. I understand that this document gives me authority to make decisions about mental illness treatment only while the principal is incapable, as determined by a court or two physicians. I understand that the principal may revoke this declaration in whole or in part at any time and in any manner if the principal is capable.

_______________________________________________
(signature of attorney-in-fact/date-print name)

_______________________________________________
(signature of alternative/date-print name)

Complete the information below, cut it out, fold it in half and keep it in your wallet to advise physicians and others of your advance directive.

PHYSICIANS AND OTHERS PLEASE NOTE

I have an advance directive for mental health treatment, a legal document stating my preferences as to psychiatric treatment and hospitalization. A copy of this document can be found at ______________________________________________.

If I am incapable of making mental health treatment decisions, please obtain this document and respect the choices I have stated in it.

My name is:

My SS # is:

I have appointed as my attorney-in-fact:

My attorney-in-fact can be reached at ___________________ day or ________________ (evening). This person is authorized to make all decisions about my psychiatric treatment in the event that I am incapable of making such decisions.

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A GUIDE TO RIGHTS for Individuals With Mental Illness
by PAIMI Program

There are certain rights which are provided to you as a client of a Mental Health Center in the state of South Dakota. Your rights include, but are not limited to the following:

• The right to confidentiality and privacy of all medical records and information given during treatment.

• The right to be treated with respect and dignity.

• The right to receive treatment that is responsive to your needs as an individual in a non-discriminatory manner.

• The right to actively participate in your treatment plan, including any changes in that plan.

• The right to know the reasons why a particular treatment is considered appropriate.

• The right to receive an explanation of diagnosis and prescribed medications and any side effects.

• The right to refuse any treatment or medication unless in an emergency, under a guardianship or court order.

• The right to be fully informed of the fees for therapy.

• The right to be free of any exploitation or abuse.

• The right to review your case records (some exceptions may apply as specified by South Dakota Codified Law).

• The right to assert grievances if your rights are violated.

• The right to have access to advocacy services at any time.


The Protection and Advocacy for Individuals with Mental Illness (PAIMI) Program is a federally funded independent program authorized to safeguard and promote the rights of individuals with mental illness in South Dakota and to investigate specific reports or suspected situations of abuse and neglect in facilities.

IF YOU HAVE QUESTIONS OR WOULD LIKE FURTHER INFORMATION CALL OR WRITE:

Dianna Marshall
1575 LaCrosse St., Ste. K
Rapid City, SD 57701
(605) 342-2575
FAX: (605) 342-0651

Services are free of charge.

All communications
will be kept confidential.


South Dakota Advocacy Services is a non-profit corporation that accepts tax deductible contributions.





Funded by U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services.

Revised 7/2006



South Dakota Advocacy
Services
221 S. Central
Pierre, SD 57501
(605) 224-8294
1-800-658-4782
(Voice and TTY)

Branch Offices:

SD Advocacy Services
1719 Broadway, Suite 2B
Yankton, SD 57078
(605) 665-5616
FAX: (605) 665-5051

SD Advocacy Services
2121 W. 63rd Pl., Ste. 30
Sioux Falls, SD 57108
(605) 361-7438
FAX: (605) 361-4338

SD Advocacy Services
1575 LaCrosse St., Suite K
Rapid City, SD 57701
(605) 342-2575
FAX: (605) 342-0651


This information is provided to you by



Assisting South Dakotans with Disabilities




Protection and Advocacy for Individuals with
Mental Illness (PAIMI) Program


* * * *

Your Rights As A Client of
A Mental Health Center

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YOUR RIGHTS as a Client of A Mental Health Center*
by PAIMI Program

There are certain rights, which are provided to you as a client of a Mental Health Center in the state of South Dakota. Your rights include, but are not limited to, the following:

• The right to confidentiality and privacy of all medical records and information given during treatment.
• The right to be treated with respect and dignity.
• The right to receive treatment that is sensitive to you as an individual in a non-discriminatory manner.
• The right to actively participate in your treatment plan, including any changes in that plan.
• The right to know the reasons why a particular treatment is considered appropriate.
• The right to receive an explanation of diagnosis and prescribed medications and any side effects.
• The right to refuse any treatment or medication unless in an emergency, under a guardianship or court order.
• The right to refuse any treatment or medication unless in an emergency, under a guardianship or court order.
• The right to be fully informed of the fees for therapy.
• The right to locate alternative sources of assistance.
• The right to be informed of the volunteer or student status of your primary therapist or case manager.
• The right to review your case records (some exceptions may apply as specified by South Dakota Codified Law).
• The right to assert grievances if your rights are violated.
• The right to have access to advocacy services at any time.

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Emergency Involuntary Commitment Procedure*
by PAIMI Program

IF A PETITION FOR INVOLUNTARY COMMITMENT IS FILED, WHAT TAKES PLACE?

South Dakota law provides that any person who is 18 years of age or older may petition the chairman of the County Board of Mental Illness to have an individual detained and evaluated. The person filing the petition must believe the following:

1. The individual has a severe mental illness, and
2. Due to the severe mental illness, the individual is a danger to self or to others; and
3. The individual needs and is likely to benefit from treatment which is available at the facility.

The petition must be filed and examined by the chairman of the County Board of Mental Illness. At this time, the chairman may order the individual to be taken into custody by a police officer and transported to a mental health facility.

As soon as the individual is taken into custody, he/she must be notified both orally and in writing of certain rights:

1. Right to immediately contact a person of his/her own choosing;
2. Right to immediately contact and be represented by an attorney;
3. Right to be examined by a qualified mental health professional within 24 hours of being taken into custody;
4. If the mental health professional determines that custody should continue, a right to an independent evaluation;
5. Right to a commitment hearing five to seven days if there is a Saturday, Sunday or holiday within this time frame;
6. Costs of any post-commitment treatment, medication, compensation for attorney representation in any appeals proceedings, an independent evaluation (unless person is indigent), and a certified transcript or tape of a hearing are that person’s responsibility, and a lien for these costs may be filed upon the person’s real and personal property to ensure payment.

IF AN INDIVIDUAL IS DETAINED AND A COMMITMENT HEARING WILL BE HELD, WHAT HAPPENS?

A notice of hearing must be given to the individual and must include the following information:

1. Notice of time, date, and place of hearing;
2. Notice that the individual has the right to be represented by an attorney retained by himself or appointed by the chairman of the County Board of Mental Illness;
3. Notice that the person will be examined by a qualified mental health professional with 24 hours of being taken into custody;
4. Notice that the medical records of the individual will be available to the mental health professional or physician and the individual’s attorney;
5. Notice of the right to have an independent physician or psychologist examine you.


• The individual’s county of residence is responsible to pay for the independent examination, if the individual is indigent (cannot pay for the examination).

• If the County Board of Mental Illness orders commitment, the individual must be advised that he/she has the right to appeal the commitment order. The individual should discuss this with his/her attorney at the initial commitment hearing.

• Upon the completion of the hearing, the County Board of Mental Illness may order the involuntary commitment of the individual for an initial period not to exceed 90 days. The County Board of Mental Illness must review the individual’s case within 90 days, if the individual continues to be detained at the facility.

• If a qualified mental health professional is filing the petition, he/she cannot be the person to examine the individual alleged to be mentally ill. This person also must identify him/herself to the individual being examined and explain the nature and purpose of the examination.

All involuntary adult mental illness civil commitments are made on an emergency basis and is the entry
point for many individuals to South Dakota’s mental health system. Once an individual is detained, they
have certain legal rights according to the laws of South Dakota

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ECT--Informed Consent/Know Your Rights
by PAIMI Program

WHAT IS INFORMED CONSENT?

Informed consent means that a person knowingly and willingly agrees to undergo a particular treatment. It has three main elements: voluntary, knowledge, and capacity.

Voluntary means that the person must be free from all threats or coercion. It also means that the person can withdraw consent at anytime.

Knowledge means that the person has been given the following information about the treatment with ECT:

1. Alternate forms of treatment;
2. The possible risks;
3. The expected benefits;
4. How the treatment will be administered;
5. What may happen if ECT is not administered.

He or she must be provided the information in language they can understand, have time to study it, and be able to ask hospital staff and their doctor questions.

Capacity means that the person has the mental ability to understand the information provided. They are able to consider the risks and benefits and make an informed decision.

MUST THERE BE A WRITTEN CONSENT FORM?

YES – informed consent must be in writing. The form must contain the following information: the expected benefits of ECT, the way the treatment is to be administered, the possible risks and side effects, alternative treatment methods, the probably consequences of not receiving treatment with ECT, the time period for which the consent is effective, and the right to withdraw consent at any time. The person receiving treatment with ECT must sign and date it. He/she as a right to have a copy of the completed consent form.

WHO MAY CONSENT TO ECT?

In South Dakota, only the person who is to receive the treatment may give informed consent to ECT. Guardians and family members may not consent for the person. If the physician determines the person is not capable of exercising informed consent, the treatment can only be provided if ordered after a hearing before the circuit court. The court may exercise a substituted judgment, which means the court decided for you on the administration of ECT. The order can be made to extend for up to one year.

WHERE ELSE CAN I GET INFORMATION?

Prior to giving consent to ECT, you have the right to consult other doctors or mental health professionals. You also have the right to talk with your lawyer, your family members and your guardian. You may also want to speak with individuals who have had the treatment. The SD law on informed consent and the right to refuse ECT are SDCL 27A-12-3.20 and 27A-12.3.12.

WHAT ELSE CAN I DO IF I THINK MY RIGHT TO GIVE INFORMED CONSENT IS BEING VIOLATED?

You should tell hospital staff, your family, your lawyer, and contact a local mental health advocate. Advocacy assistance and referrals are available through South Dakota Advocacy Services.

Back to Publications
WRITof HABEAS CORPUS--General Information
by PAIMI Program

The purpose of this pamphlet is to provide general information on the use of a writ of habeas corpus to challenge an order for involuntary commitment and confinement at the Human Services Center. No other purpose is intended or implied.

When you are involuntarily committed, you have several ways to obtain discharge from commitment:

1. Your treating physician may discharge you on any day;
2. The County Board of Mental Illness may discharge you at any mental illness hearing;
3. You may be discharged a court order following a formal hearing called for that purpose when filing an appeal of a commitment order or by filing a writ of habeas corpus. NOTE: For more information on filing an “appeal” contact the attorney who represented you at your mental illness hearing as soon as possible following that hearing.

Any person who is involuntarily committed by a county board of mental illness, who is detained, confined or restrained of their liberty, is entitled at any time to file a writ of habeas corpus to challenge an unfair or unconstitutional confinement.

A petition for a writ of habeas corpus must be filed with the court. If the court finds that you meet criteria for commitment, you will not be discharged and will continue to be involuntarily committed to the facility. You may contact your attorney to assist you with the writ. You will work with your attorney on your case. You may use information found in this pamphlet as a guide to assist you with any questions you may have, but contact your attorney about any legal advice regarding your case. If you are unable to afford an attorney, you may be eligible to receive the services of a court appointed attorney.

HOW CAN WE HELP?

To apply for a court appointed attorney, contact South Dakota Advocacy Services at 665-5616. An advocate will come to the Human Services Center to answer questions you may have and assist you to complete an “Application for Court Appointed Attorney for Writ of Habeas Corpus.” The advocate will need financial information to complete the application (information about your assets and liabilities). The completed form will be sent to the court.

The judge will review the application and, if you are eligible, will appoint an attorney to represent you. If the judge finds that you are not eligible for a court appointed attorney because your assets are too much, your application would be denied. If your application is denied, you may still hire an attorney to assist you in filing the writ of habeas corpus.

If your application is approved, South Dakota Advocacy Services will inform you who the court appointed attorney is that will represent you at your writ hearing.

SOME IMPORTANT THINGS TO REMEMBER AND/OR TO DO:

• Before consulting with an attorney about filing a writ of habeas corpus, ask your treating physician to discharge you. If the treating physician denies your request, find out what criteria needs to be met to become discharged and how your physician feels you can meet that criteria. This needs to be addressed in your treatment plan.

• If your discharge is to happen in the near future, try to get a date or at least a timeframe for this to happen, e.g., next week or next Thursday.

• Ask your attorney any questions you may have.

• Keep your attorney informed of any changes in your condition, treatment, discharge plans, or other information that may affect your case.

Back to Publications
RIGHTS INFORMATION for a Person Under the Age of 18 Residing in an Inpaatient Facility*
by PAIMI Program

As a person under the age of 18 whom is receiving inpatient psychiatric treatment, you have certain rights according to state law. The following are your rights:

1. If you are 16 years of age or older, you will be told that you have the right to refuse psychotropic medications. Your psychiatrist may want to give you these medications as part of your treatment. Each medication has possible side effects and must be explained to you by the facility. These are classified in five different general classes: sleeping medication; anti-anxiety medication; anti-depressant medication; anti-psychotic medication; and mood stabilizing medication. These medications can only be given to you with permission by you and your parent or guardian. Oral and written permissions are required. If you refuse to take the medication, you psychiatrist at the facility can still begin to give you this medication, but ONLY with your parent’s or guardian’s permission. If the medication is given to you over your objection, the facility MUST OBTAIN A COURT ORDER to continue giving the medication to you. The court can order you to take this medication for no more than 90 days. Every 30 days a psychiatrist must review your continued need for medication.

2. If you are under the age of 16, your parent or guardian can give the facility permission to give you psychotropic medication and you have no right to object.

3. If you turn 18 years old while admitted to an inpatient psychiatric facility, you will be informed that you now have more rights because you are now considered an adult.

4. All persons under the age of 18 have a right to have a treatment plan developed with your input while you are at the facility. This plan includes goals to help you with your medical, psychological, social, behavioral, educational and developmental needs while you are receiving care and treatment at the facility. This treatment plan must be implemented with ten days after the involuntary commitment, if it is not, you must be immediately released.

5. During your admission, especially if you are at the facility for 45 days, your psychiatrist must look at whether you should continue to stay at the facility or not.

6. If you are involuntarily committed and the facility is planning discharge or you are admitted by a parent or guardian, a plan will be written with you and your parent or guardian to provide any support to you when you leave the facility. This plan is called a “predischarge plan of aftercare”. A copy of the plan must be given to the parent, guardian, or other legal custodian. The plan, at a minimum, must include the following:

a. information about what services are required for you in the community to meet your needs for treatment, education, housing, nutrition, physical care and safety;
b. information on any income subsidies for which you could be eligible for; and
c. information regarding all local and state agencies that can provide services and supports to you.

If a plan has not been developed and you are ready to be discharged from the facility, this is not enough of a reason for continued commitment or inpatient treatment when discharge is appropriate.

7. The facility cannot give you or make you take part in experimental procedures or interventions of any type, such as ElectroConvulsive therapy (ECT). Your parents, custodians or your own consent alone is not enough to authorize these types of treatments. If the facility feels these types of treatments are needed, they must obtain permission from the circuit court.

Back to Publications
TRUSTS: Family Considerations for the Member with a Disability
by Robert J. Kean

Trusts are legal arrangements used to direct the management of money or property to the benefit of a defined purpose. A trust imposes an obligation on the person who voluntarily accepts the responsibility.

The creation, interpretation, and management of trusts are subject to state law (SDCL 55-1-et.seq.). The person creating the trust is called a “trustor” (also sometimes called the “settlor”), the natural or legal person or persons carrying out the duties of the trust is called the “trustee”, and the person for whose benefit the trust is created is called the beneficiary.

Trusts are either "inter vivos" or "testamentary". Inter vivos means created while the trustor is alive. Testamentary means coming into effect after the trustor dies.

A trust may be created for any purpose that is not illegal. A trust is created by words or actions by the trustor that set out the intention to create a trust, what is to be placed into the trust, the purpose of the trust and the beneficiary. The trustee must accept or acknowledge the existence of the trust.

The creation of a trust is usually done by formal documents called the “trust instrument”. It sets out the details and responsibilities of the trust and is signed by the trustor. The trustee’s acceptance may come after the trust document is drawn up and signed by the trustor.

The beneficiary has the right to the trust resources following the trust terms. How the trust resources are expended for the beneficiary vary widely. Resources may be given to the person directly or spent on the person’s behalf. Spending on the beneficiary’s behalf is called “third-party purchasing”.

The right to the trust assets is called the beneficiary’s “interest”. The beneficiary is considered to own the interest whether he can readily access the resource or not. However, terms of the trust may restrict the availability of the trust resources to the beneficiary.

Because trust resources are considered to belong to the beneficiary, having an available interest in a trust will affect a person’s eligibility for entitlements that have resource limitations. The Medicaid program has a $2,000 resource limitation for eligibility. Specific types of trusts recognize the unique needs of persons with disabilities and address the “availability” problem.

Trusts can be structured to allow a person with a disability to have an interest in a trust in excess of an entitlement program’s dollar resource limits and still be allowed to participate in SSI and Medicaid. Two trusts are recognized in South Dakota, the Hamilton Trust and the Irrevocable Trust for Disabled Individuals Under Age 65. Each trust has specific criteria and requires exact language to set out particular terms to be effective.
The Hamilton Trust and the Irrevocable Disability Trust are not used interchangeably. Each has a specific purpose that will dictate its use for the person with a disability. Which trust to use will depend on whether the beneficiary owned the resource at the time it was placed into the trust.

HAMILTON TRUST: Used to place resources that do not belong to the beneficiary into trust. Usually done through gift or will.

Authority: South Dakota Department of Social Services Medical Services Memorandum #84-24.

Criteria:
1. Trust assets did not belong to the beneficiary.
2. Trust language restricts the use of trust assets if use
will adversely impact entitlements.

Considerations: Trust should contain language stating:
1. Circumstance of the beneficiary,
2. Trust is to supplement entitlements,
3. Source of funds not those of beneficiary,
4. Authority for the trustee,
5. Trust is extinguished if purposes cannot be fulfilled.

IRREVOCABLE TRUST for DISABLED INDIVIDUAL UNDER AGE 65: Used to place resources that belong to the beneficiary into trust.

Authority: Federal Omnibus Budget Reconciliation Act of 1993,
Department of Social Services-Assistance Payments Memo #94-34

Criteria: Following requirements must be met:

1. Beneficiary must be determined disabled by the Social
Security Administration or the state’s Disability/Incapacity Consultation Team.
2. Beneficiary must be under the age of 65.
3. Trust must consist of beneficiary’s own resources.
4. Trust must be irrevocable and trust assets must be
available only to the beneficiary.
5. Trust must provide that upon the death of the
beneficiary, DSS is entitled to payment from the trust an amount equal to all medical payments paid to the beneficiary.
6. Trust must be established by parent, grandparent,
legal guardian or a court.




NOTE: The Hamilton Trust and Irrevocable Disability Trust require exacting preparation in their design and application to ensure the terms of the trust meet the required criteria of entitlement programs. For further information, contact SDAS, 221 S. Central Avenue, Pierre, SD (57501) 605-224-8294.

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INVOLUNTARY COMMITMENT UNDER 18*
by PAIMI Program

Any person 18 years of age or older can file a petition for involuntary commitment with the Chairman of a County Board of Mental Illness or with a judge in tribal court to have you taken into custody to protect you from harming yourself or others. This petition will include the reasons why the person filing the petition feels you need immediate intervention and is a request to have you taken to an inpatient psychiatric facility.

If the chairman of the County Board of Mental Illness or tribal court judge decides you need to go to an inpatient facility, you will be transported to the facility by a police officer. Even if a petition is not filed, a police officer has the authority to detain you if he/she believes you need emergency intervention. IF this is the situation, the police officer must try to contact your parent, guardian, or other legal custodian.

Immediately after you taken into custody by the police officer, the officer must tell you of your rights:

1. To immediately contact your parent, guardian, or any other person you choose to contact;

2. To contact and be represented by an attorney;

3. That you will be examined by a qualified mental health professional within 24 hours to decide whether you should stay at the facility; and

4. If the mental health professional decides you should stay at the facility, you have the right to have a hearing within five to seven days, depending on if there is a Saturday, Sunday or holiday within that time frame.

After you are examined by a mental health professional, you will either be released from the facility or a hearing will be held.

IF A HEARING IS TO BE HELD the County Board of Mental Illness or tribal court judge will listen to the mental health professional who examined you, your parent, guardian, or other legal custodian and you to decide whether you need to be treated at the facility. You do not have to talk at the hearing if you do not want to. You will have an attorney to represent you at the hearing.

The County Board of Mental Illness or tribal court judge must find that the following criteria have been met before they order your involuntary hospitalization:

1. You have a serious emotional disturbance, which means that your behavior has seriously interfered with how you are acting in the community, at school or with your family; that a mental health professional has recognized there is a mental disorder; that you have a need for someone to take care of you; and that your difficulties may last a long time or may last for a short time but are really intense; and

2. Your thinking is confused and your behavior is inappropriate OR you think about suicide OR you are severely depressed, sad and you cannot eat or sleep; and

3. You are a danger to yourself or to others; and

4. You can be helped at the inpatient facility.

Delinquent behavior alone does not mean you have a serious emotional disturbance.

If the County Board of Mental Illness or tribal court finds that you met the criteria listed above, they may order involuntary commitment for a period not to exceed 45 days. Within ten days after the involuntary commitment and at least every 30 days after that, the facility administrator must assess the need for your involuntary treatment. If it is determined that you do not need further treatment, the facility administrator may discharge you to your parent, guardian, or other legal custodian.

If your parent, guardian, or other legal custodian refuses to remove you from the facility, this is not enough of a reason to continue the commitment. The facility administrator or director must explain to your parent, guardian, or other legal custodian about any alternative treatment options and must advise your parent or guardian that their refusal to remove you from the facility could result in the facility reporting this to the state’s attorney for further action.

You have the right to a review hearing within the 45 days you were ordered for involuntary commitment to determine whether you continue to need treatment at the facility.

Notice of the review hearing shall be given to you and your attorney, if you have one, at least six days prior to the hearing. If you do not have an attorney at the time you receive the notice, the chair of the County Board of Mental Illness or tribal court judge shall immediately appoint an attorney to represent you.

If continued treatment is necessary, then you may be ordered to stay another 45 days. Any additional review hearing must be done at least every 45 days that you remain under commitment. If the County Board or tribal court determines you do not need continued treatment, you will be discharged from the facility to your parent, guardian, or other legal custodian. NO TEMPORARY PERIODS OF INVOLUNTARY COMMITMENT MAY BE AUTHROIZED.

**The information above does not apply to minors committed by the Department of Corrections**

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GUARDIAN & CONSERVATORSHIP: Family Considerations for the Member with a Disability
by Robert J. Kean

"The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.

Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest." -John Stuart Mill, On Liberty

Our "freedom" to do as we wish has many names. It is called "self-determination," "liberty," "the right to the pursuit of happiness," "freedom of choice" and "personal decision making". As United States citizens we take for granted the fact that we may chart our individual choices, make our own decisions, and put our ideas into action.

The right to make choices and exercise personal preferences is at the heart of our traditions and the fundamental concept of fairness inherent in our society.

Historically, persons with disabilities and those perceived to have disabilities are often viewed as less than human. At best, they have been perceived as needing varying amounts of assistance. Most often, they are considered as unable to make any decision. As a result, they have usually been denied the opportunity to make even the most basic choices about themselves and their lives. This restriction has been done by social and legal conventions that societies developed and nurtured over the centuries. In western cultures, the circumstances and fairness of taking away a person's ability to make meaningful decisions and the process used to invade that right and direct another's life is the focus and purpose of the guardianship process.

Guardianship is found in state law. There are no federal statutes creating or directing the conduct of a guardianship. In South Dakota the laws relating to guardianship are found in Title 29 of the South Dakota Codified Laws.

Historical Sources:
Taking care of persons who cannot care for themselves has ancient origins. Every major religious tradition has referenced a duty to look out for persons with disabilities. Some attach penalties for not doing so. Early cultures expected the extended family to take care of their own. The formality of such arrangements and contingencies when the family was not available varied widely. Many of the ancient practices have come down to us today as part of our legal system.

Taking control of another because the person did not act the same as other people was recognized as early as 449 BC in Rome. Families could do this without a formal court proceeding. Later, Roman courts assumed the responsibility to designate a person named in a will of another who had control over the affairs of a person to continue with the control. Accountability of the designated person was to the heirs and others, not the court.

In medieval England, where our legal tradition has its roots, the duty to take care of the person and property of one who could not do so began in the intricacies of the feudal system. The local lord of the manor and later the king had the duty to protect the property and person. Distinctions were made between a person who was mentally retarded and mentally ill. This affected how the person's property was dealt with during life and at the person's death. A distinction between caring for the person and managing the property and possessions of the person developed. By the seventeenth century, the king's authority to manage the affairs of persons had been transferred to an officer of the court called a chancellor. A hearing system developed to review the need for protection and to delegate the responsibility of care to others. Often a family member or friend would receive payment for the service of caring for another person.

In colonial America, care for persons determined incompetent was the responsibility of the family. If no family was available, persons fell under the indigent laws and were left on their own to survive. After the Revolutionary War much attention was given to establish rules and procedures to handle the person's property. Little attention was given to the care, comfort and wellbeing of the individual. South Dakota followed this trend from the inception of its guardianship statutes in the early territorial law codes. The law set out processes to handle the property of the individual but paid little attention to the individual.

1993 Guardianship revisions:
Over the years the South Dakota guardianship statutes underwent many changes as new issues were addressed through legislation. The changes and additions were not always uniform and often led to confusion and apparent inconsistencies. Some of the terminology used to describe the person who needed protection became very archaic and appeared insensitive. In the late 1980's the South Dakota Legislature conducted a summer study and decided a complete revision of the statutes was in order. The State Bar of South Dakota sponsored a writing committee that drafted the revisions and prepared a bill. The bill passed the legislature in 1993 and took effect in July of that year. The law is located at South Dakota Codified Laws, Chapter 29A-5.

The 1993 guardianship revisions introduced a number of new concepts and significant changes. These included:
1. A clear distinction between care of the person and management of property.
2. Elimination of pejorative terminology.
3. Encouragement of alternatives to guardianship and conservatorship.
4. Authorization of limited guardians and conservators.
5. Authorization of temporary guardians and conservators.
6. Encouragement of participation of protected person in decision making.
7. Requirement for a more complete information upon which decisions are made.
8. Protection of rights of person alleged to need protection.
9. Requirement for annual personal status reports.

South Dakota Guardianship Statutes:
The statutes set out a list of clarifying definitions at SDCL 29A-5-102.

Minor- any individual under eighteen years of age.

Person alleged to need protection- any individual for whom the appointment of a guardian or conservator is being sought other than for reasons of minority.

Protected Person- any individual for whom a guardian or conservator has been appointed other than for reasons of minority.

Guardian- one appointed by the court to be responsible for the personal affairs of a minor or protected person, but does not include one who is only a guardian ad litem.

Conservator- one appointed by the court to be responsible for managing the estate and financial affairs of a minor or protected person.

Interested person- individual who is the subject of a guardianship or conservatorship proceeding, and any entity, public agency, or other individual with an interest in the proceeding either generally or as to a particular matter.

Limited Guardian- one appointed by the court who has only those responsibilities for the personal affairs of a minor or protected person as are specified in the order of appointment.

Limited Conservator- one appointed by the court who has only those responsibilities for managing the estate and financial affairs of a minor or protected person as are specified in the order of appointment.

Court Representative- any individual appointed by the court to make investigations and recommendations as required by statute or as ordered by the court.

Although not contained in the definition sections, the statutes at SDCL 29A-5-210 and 315 allow for a "temporary guardian" and "temporary conservator".

Appointment is for six months (minor) or ninety days with one ninety day extension (adult) or less and must be based upon showing the court:
1. The need exists (and in the case of a minor it would be in the minor's best interest).
2. Adherence to the regular procedures would cause significant harm.
3. No other entity or individual appears to have the authority to act or is unwilling to act or has ineffectively exercised authority on behalf of the person in need of protection.

Also not defined are "joint" and "successor" guardians and conservators. These are additional guardians or conservators that may be appointed prior to or at the time there is a vacancy. (SDCL 29A-5-502)
A joint guardian or conservator equally shares in the responsibility, management and all other tasks related to the guardianship/conservatorship unless otherwise specifically stated. A majority of joint guardians must concur in the decisions unless power is conferred to another or authorized by the court. (SDCL 29A-5-416)

A successor guardian or conservator, if appointed prior to a vacancy, can immediately assume the office upon the termination of the predecessor's appointment and has the same powers and duties. The successor guardian/conservator must file the acceptance of office and required bond within sixty days of assuming office.

Guardian/Conservator Types:
Often a guardianship is described and referred to as a "type" or "kind" such as:

Minor: Person under the age of 18. (SDCL 29A-5-200)
Adult: Person over the age of 18. (SDCL 29A-5-300)
Limited: Responsibilities limited to those specified by the court.
(SDCL 29A-5-314)
Temporary: Responsibilities limited to a specific period of time not to
exceed six months for a minor (SDCL 29A-5-210) and 180 days for an adult (SDCL 29A-5-315).
Joint: Appointed with another to be guardian or conservator.
(SDCL 29A-5-502)
Successor: Assumes powers, duties of office upon termination of
predecessor. (SDCL 29A-5-502)
Co-guardian, co-conservator: Same as a joint guardian or joint
conservator. (29A-5-504)

The "types" or "kinds" of guardians are not mutually exclusive. For example, an adult who is found to be a person in need of protection for the purposes of making an immediate medical decisions may have a limited temporary guardianship jointly held by more than one person to provide assistance during an operation and convalescence. Or a minor may need the very temporary assistance of a conservator to help with the handling of an insurance settlement on the minor's sole behalf.

Who May Become a Guardian or Conservator?:
Any of the following classes of person or entities may petition for guardianship or conservatorship provided they are capable of providing an active and suitable program and are not providing substantial services or financial assistance to the minor or protected person other than the services of the office.
1. An adult individual;
2. A public agency or nonprofit corporation;
3. The Department of Human Services and the Department of Social Services, only if there is no individual, nonprofit corporation, or public agency to become guardian or a bank or trust company to become conservator.
4. A bank or trust company authorized to exercise trust powers or to engage in trust business in the state may become a conservator. No other individual or entity whose interest is that of creditor may be appointed guardian or conservator. (SDCL 29A-5-110)

Procedures for Becoming a Guardian or Conservator (Adult, SDCL 29A-5-300):
The appointment of a guardian or conservator for an adult involves the following steps:
1. Filing of a petition including an evaluation report with the court in the proper county.
2. Setting a hearing date no later than 60 days from the date of filing the petition.
3. Giving notice of the hearing to the person alleged to need protection and others as required.
4. Filing a statement of the financial resources of the person alleged to need protection.
5. Determination by the court whether an attorney or court representative will be appointed.
6. Holding the hearing where the following determinations will be made:
a. Whether the person meets the criteria to have a guardian or conservator appointed.
b. Whether a guardian or conservator will be appointed and what type.
c. Whether the proposed guardian or conservator is eligible for appointment.
d. Whether a bond will be required.
7. Entry of order of appointment by the court and filing of acceptance by guardian/conservator.
8. Issuance of letters of office to the guardian or conservator with specifics if limited.
9. Mailing of appointment with statement of termination rights to the protected person and to those given notices of the hearing based on the petition.
10. If applicable, filing of non-resident guardian or conservator naming resident agent.

Contents of Petition/Evaluation:
The petition to the court seeking guardianship lays the groundwork for everything that follows. It must contain sufficient information for the court to make initial determinations, such as to appoint an attorney or court representative and later findings and orders. The following information must be included in the petition.
1. Information relating to the petitioner, person for whom the guardianship or conservatorship is sought and nearest relatives.
2. Identity of any agents designated under a power of attorney and a copy of any document.
3. Statement whether the incapacity of the person will prevent attendance at the hearing and the reasons why.
4. Statement as to the type of guardianship or conservatorship requested, i.e., limited.
5. Information regarding any individual or entity nominated by the person to act as guardian or conservator for the court's consideration to give a preference to act if qualified.
6. Information regarding any acting guardian or conservator wherever located.
7. Information on the specific areas of protection if a limited guardianship or conservatorship is being sought.

An evaluation report on the condition of the person alleged in need of protection must be filed with the petition or as directed by the court unless the petition was brought on the basis the person is an absentee. The purpose of the evaluation is to have sufficient information submitted to the court to determine whether the person needs a guardianship or conservatorship. The evaluation also provides to the court an idea of whether the provision of additional services would avoid the necessity of an appointment. It also assists in helping the guardian or conservator to begin planning for the needs of the person by reviewing aspects of the person's life including medications. In addition, it helps the court determine whether the person will be able to attend the hearing. The following information must be provided in the evaluation report.
1. Nature, type and extent of the person's incapacity and cognitive and functional limitations.
2. Evaluations of the person's mental and physical condition, adaptive behavior and social skills.
3. Descriptions of services person is receiving for health, care, safety, habilitation and therapeutic needs or services person is receiving for the management of the person's estate and financial affairs depending on whether a guardianship or conservatorship is sought.
4. Opinion on whether the appointment of a guardian or conservatorship is needed and the reasons for the type and scope.
5. Opinion on why attendance at the hearing would be detrimental to the person if the petition states the person will not be able to attend the hearing due to the person's incapacity.
6. Statement whether the person is on medications that may affect the person's attendance at the hearing.
7. Information relating to who did the evaluation, when it was done and, if done longer than three months prior to the date of filing the petition, a statement that there has been no material change in the condition of the person.

Responsibilities of Guardian/Conservator:
The statutes require the guardian to be active and knowledgeable.
1. The guardian is to maintain sufficient contact with the protected person to know of the person’s capabilities, limitations, needs and opportunities.
2. The guardian is to make decisions regarding the protected person’s support, care, health, habilitation, therapeutic treatment, and if not inconsistent with another order, determine residence.
3. The protected person is anticipated and expected to participate in decision making to the extent possible.
a. The guardian is to be guided in his activities only by the limitations of the
protected person.
b. If feasible the guardian is to encourage the protected person to participate, act on own behalf and develop or regain capacity to manage personal affairs.
c. The guardian is to consider the express desires of the protected person.
d. The guardian is to always act in the person’s best interests.

The conservator has the same responsibilities as the guardian with respect to involving the protected person in decision making to the greatest extent possible and take into consideration the expressed desires and personal values and act in the person’s best interests. In addition the conservator is to handle the fiduciary aspects of the person.
1. The conservator is to apply the income and principal of the estate as needed for the protected person’s support, care, health, and if applicable, habilitation or therapeutic needs.
2. The conservator is also empowered to provide support to any legal dependant of the person who are unable to support themselves and are in need of support.

Guardian/Conservator Reports:
The statutes require the guardian and conservator to prepare and file with the court regular, specific and detailed reports on activities undertaken on behalf of the protected person.

The guardian reports may be brief and are to contain the following information.
1. The current mental, physical and social condition of the protected person.
2. The living arrangements during the reporting period.
3. The medical, educational, vocational and other professional services provided to the protected person and the guardian’s opinion as to the adequacy of the protected person’s care.
4. A summary of the guardian’s visits with and activities on behalf of the protected person.
5. If the person is in an institution, whether the guardian agrees with the current treatment or habilitation plan.
6. A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.
7. Any other information requested by the court or useful in the opinion of the guardian.
8. Compensation requested and reasonable and necessary expenses incurred by the guardian.

The conservator's annual reports are called accountings and are to contain the following information.
1. Listing of receipts, disbursements and distributions from the estate under the conservator’s control during the period covered by the accounting.
2. Inventory of the estate.
3. The services being provided to the protected person.
4. Significant actions taken by the conservator during the reporting period.
5. A recommendation as to the need to continue the conservatorship and any recommended changes in the scope of the conservatorship.
6. Any other information requested by the court or useful in the opinion of the conservator.
7. Compensation requested and reasonable and necessary expenses incurred by the conservator.

Rights of the Minor and Protected Person:
The guardian and conservator statutes compliment the lengthy rights provisions contained in the bill of rights section of the Protection and Advocacy for Individuals with Mental Illness Act (42 USC 10801), as amended and the statement on the Rights of the Developmentally Disabled contained in the Developmental Disabilities Assistance and Bill of Rights Act (42 USC 6000) as amended.

In addition to the rights of the minor and protected person set out in the sections dealing with the responsibilities of the guardian and conservator, the statutes also further specify certain rights at SDCL 29A-5-118.
1. The appointment of a guardian or conservator of a protected person does not constitute a general finding of legal incompetence unless the court so orders.
2. The protected person retains all rights that have not been granted to the guardian or conservator.
3. Without prior authorization by the court, the guardian or conservator may not.
a. Change the residence of the minor or protected person to another state.
b. Terminate or consent to a termination of the minor's or protected person's parental rights.
c. Initiate a change in the minor's or protected person's marital status.
d. Revoke or amend a durable power of attorney of which the protected person is a principal.

Liability of Guardian or Conservator:
A guardian is not liable for the acts of the minor or protected person unless the guardian is personally negligent. The guardian is not required to expend personal resources on the minor's or protected person's behalf solely because of the guardianship.

A conservator is not personally liable in conducting the affairs of the office as long as transactions conform to requirements set out at SDCL 29A-5-415 and the conservator has not been personally negligent.

Modification, Termination, Resignation and Renewal of Guardian or Conservator:
The guardian’s or conservator’s authority may cease as the result of changed circumstance such as death or reaching the age of majority or by court action through modification, termination, resignation and renewal. (SDCL 29A-5-501 et.seq.)

A guardianship and conservatorship of a minor terminates upon the minor’s death, reaching 18 years of age or if jurisdiction is transferred to another state. In addition the guardianship of a minor automatically terminates upon the minor’s adoption or marriage. Also, a court, following a hearing may order a termination if it finds the need for a guardian or conservator no longer exists.

The guardianship of a protected person may be modified upon a petition to a court by the protected person, guardian, interested person or on the court’s own motion.
1. The court can modify the type of appointment and the areas of protection, management, or assistance previously granted to the limited guardian.
2. Modification, which can include termination, may be ordered if:
a. The protected person is no longer in need of the assistance or protection of a guardian or conservator.
b. The extent of protection, management or assistance previously granted is either excessive or insufficient considering the current need.
c. The protected person’s understanding or capacity to manage the estate and financial affairs or to provide for health, care, safety has so changed as to warrant such action.
d. No suitable guardian or conservator can be secured who is willing to exercise the assigned duties.
3. The court has the discretion to appoint an attorney for the protected person, a court representative and an individual to conduct evaluations as appropriate.
4. The protected person has the same rights at a modification hearing as at a hearing on a petition for appointment of guardian.

The guardianship of a protected person shall terminate:
1. Upon the death of the protected person.
2. If jurisdiction is transferred to another state.
3. If ordered by the court following a hearing.

A guardian may petition the court for permission to resign. Absent good cause the court may not grant permission without a willing successor guardian.

Any interested person may petition to, or the court on its own motion may remove a guardian or conservator if the guardian or conservator;
1. Avoids a service of process or notice.
2. Is acting under letters of guardianship secured by material misrepresentation or mistake, whether fraudulent or innocent.
3. Has an incapacity or illness, including substance abuse, which affects fitness for office, or is adjudged to be a protected person in this or any other jurisdiction.
4. Is convicted of a crime, which reflects fitness for office.
5. Wastes or mismanages the estate, unreasonably withholds distributions or makes distributions in a negligent or profligate manner, or otherwise abuses powers or fails to discharge duties.
6. Neglects the care and custody of the minor, the protected person or legal dependents.
7. Has an interest adverse to the faithful performance of duties such that there is a substantial risk that the guardian or conservator will fail to properly perform those duties.
8. Fails to file reports or accountings when required, or fails to comply with any court order.
9. Acts in a manner that threatens the personal or financial security of a co-guardian or co-conservator or endangers the surety on or fails to file a required bond.
10. Becomes incapable of or unsuitable for the duties or is not acting in the best interests of the minor or protected person or the estate even though without fault.


(Note: The following publications were used in the preparation of the guardian/conservator section:

Handbook for South Dakota Guardians and Conservators, by David M. English and Kimberly Wolff, South Dakota Guardianship Program, May 1996.

The South Dakota Guardianship and Conservatorship Act, South Dakota State Bar, Committee on Continuing Legal Education, June, 1993. 11.02

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VOLUNTARY ADMISSION UNDER 18*
by PAIMI Program

If you are under the age of 18 and still live with your parent, guardian, or other legal guardian you may be either admitted or involuntarily committed to an inpatient psychiatric facility for inpatient treatment. If admitted to a facility by your parent or other legal custodian, this is called a voluntary admission.

How the admission process begins: Your parent, guardian, other legal custodian needs to fill out an application to admit you to the facility and the following criteria must be met:
1. You have a “serious emotional disturbance”, which means that your behavior has seriously interfered with how you are acting in the community, school or with your family; that a mental health professional has recognized there is a mental disorder; that you need for someone to take care of you; and that your difficulties may last a long time or may last for a short time but are really intense; and
2. Your thinking is confused and your behavior is inappropriate or you think about suicide or you are severely depressed, sad, and you cannot eat or sleep; and
3. You can be helped at the inpatient facility with your problems; and
4. The facility is the only place available that can help you with your problems; and
5. Your parent, guardian, or other legal custodian has agreed that inpatient treatment for your problems is needed after being advised about the hospitalization.

Information that the facility will explain to you: After the application for admission is filled out, someone at the facility will explain to you the following information:
1. You are at the facility because you have met the requirements for a voluntary admission;
2. There are certain types of treatment which might be used to treat you;
3. There are some rules that you will need to follow;
4. You have the right to object to this admission; and
5. You have the right to view and copy your medical records. BUT there may be certain things in your records that your doctor will not allow you to see, but will allow your parents, guardian, or other legal custodian to see.

After you have been admitted a psychiatrist will talk with you and decide whether your should stay and receive treatment. After you have talked with the psychiatrist, it may be decided that you should stay and be treated at the facility or that you should be treated somewhere else.

Objecting to continued admission and treatment: Anytime after you are admitted to the facility, you, or an adult on your behalf, can OBJECT to this admission. To object to continued treatment at the facility, you must either voice your objection to a staff person at the facility or write your objection down and give it to a staff person. After this is done, the staff person will give you a written form to sign. You will need to sign and date this form and it will be placed in your medical record. If the facility does not agree to discharge you, it can place you on a “mental illness hold” if it feels you need to stay at the facility.

After giving your objection to continued treatment to the staff and they feel that you need to be at the facility, they may keep you at the facility for 24 hours, during which time you will be seen by a psychiatrist. You have the right to contact your parent or any other person to let them know you are being held at the facility.

You also have the right to be examined by another psychiatrist or mental health professional (get a second opinion). The cost of this examination will be paid by the county unless your parent, guardian, other legal custodian, or you have money to pay for it.

What happens after the 24 hour hold?: If , after the 24 hours, the facility still wants to keep you, you have the right to have a hearing before the County Board of Mental Illness, and this hearing must be held within five to seven days, depending on whether there is a Saturday, Sunday or holiday within that time frame.

You may have the right to be represented by an attorney, and one will be appointed by the County Board of Mental Illness to represent you if you do not have an attorney. You will be told when the hearing will take place. Prior to the hearing, your attorney will contact you to answer any questions you have about the hearing.

At the hearing, the County Board of Mental Illness will listen to what the psychiatrist has to say, to you, and to anyone else who might have information as to why you should or should not stay at the facility. You do not have to speak at the hearing if you choose not to. If the County Board decides that you need to stay at the facility, it may order you to stay for up to 45 days. If it decided that you do not need to stay, then you will be immediately discharged from the facility to your parent, guardian, or legal custodian. You also have the right to appeal the County Board’s decision, which means that you can request a judge to look at your case again.

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VOLUNTARY ADMISSION
by PAIMI Program

If you are 18 or older you may voluntarily admit yourself to an inpatient psychiatric facility. The facility director or administrator must make sure that the following requirements are made before admitting you as a voluntary patient:

1. A staff psychiatrist, the facility director or administrator must examine you and determine that you have a mental illness and can be treated on an inpatient basis;
2. That a least restrictive alternative is inappropriate or unavailable;
3. That you are in need of and likely to benefit from treatment which is available at the facility; and
4. You understand the nature of the voluntary inpatient treatment, you have given informed consent tot he treatment, and voluntarily signed a written application for admission.

If you are determined by the facility director or administrator as not capable of giving informed consent to the voluntary admission, a court appointed guardian might exercise a substitute informed consent for you for admission purposes only. A person’s next of kin may also exercise substituted informed consent for admission purposes only, but only for a 14-day period.

If you are denied admission to the facility, the facility director or administrator must refer you to other facilities or programs that may be able to provide treatment to you.

WHAT MUST BE GIVEN TO YOU UPON ADMISSION TO THE FACILITY?

Upon admission to an inpatient facility, you must receive rights information and a written notice of procedures to terminate treatment. The procedures and rights information must also be displayed on every psychiatric ward/unit at the facility.

WHAT HAPPENS IF YOU WANT TO LEAVE THE FACILITY?

If you inform the facility staff of your intent to terminate treatment, the facility shall promptly give you a written form for release.

The facility director or administrator may initiate a 24-hour mental illness hold to detain you at the facility. The facility director or administrator must believe that you should continue treatment at the facility. An explanation must be given to you that you must remain at the facility for a period not to exceed 24 hours, not including weekends or holidays.

A petition of or emergency commitment MUST be filed within 24 hours of the facility’s receiving your written notice of intention to terminate treatment with the facility. If this is not done, the facility must discharge you immediately.

WHAT HAPPENS DURING THE 24-HOUR HOLD?

The facility director or administrator must file a petition for emergency involuntary commitment with the chairman of the county board of mental illness within 24 hours of your written notice to terminate treatment.

If a petition is not filed within this 24-hour time period, you must be immediately released from the facility.

HOW OFTEN DOES THE VOLUNTARY ADMISSION HAVE TO BE REVIEWED?

If you continue receiving treatment at the facility, your records and need for continued treatment must be reviewed 30 days after the voluntary admission and every 90 days after.

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CAP--Client Assistance Program *
by Brady L. Kerkman

Services of the Client Assistance Program (CAP) are provided on a non-discriminatory basis in compliance with Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973, as amended, without regard to race, color, national origin, sex, or disability.

HOW CAP WORKS WITH REHABILITATION & INDEPENDENT LIVING SERVICES

ADVISES YOU of your rights & responsibilities in the process of obtaining rehabilitation and/or independent living services funded under the Rehabilitation Act of 1973, as amended.

ASSISTS you in your relationship with projects, programs, and facilities/agencies providing rehabilitation and/or independent living services.

EXPLAINS specific rehabilitation and/or independent living services and benefits available to an individual with a disability.

HELPS you in the appeal process, when requested, if you disagree with the rehabilitation and/or independent living services being provided or are denied services.

IDENTIFIES problem areas in the delivery of rehabilitation and/or independent living services to individuals with a disability and suggests methods and means of improving agency/facility performance.

REFERS you to other agencies (public or private) when you may not be eligible for rehabilitation and/or independent living services.

INFORMS you of your rights under Title I of the Americans with Disabilities Act.

YOUR RIGHTS AS A REHABILITATION CLIENT ARE

To make meaningful and informed choices;
To be a partner in the planning of your vocational goals and rehabilitation services;
To apply or reapply for rehabilitation services;
To a consultation with your counselor before your case is closed;
To appeal using the informal administrative review process, mediation, or fair hearing; and
To be informed of the availability of the Client Assistance Program.

YOUR RIGHTS AS A CONSUMER OF INDEPENDENT LIVING SERVICES (IL)

To make meaningful and informed choices;
Confidentiality of your consumer service record;
To direct the planning of your independent living services;
Non-discriminatory provisions of IL services without regard to race, language, sex, age or disability;
Appeal any decision you are in disagreement with regarding the provision of independent living services;
To be informed of the availability of the Client Assistance Program.

4 CORE INDEPENDENT LIVING SERVICES

1. Information or referral
2. Advocacy
3. Independent living skills training
4. Peer support

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KNOW THE FACTS--Stigma of Mental Illness*
by PAIMI Staff

Stigma is not just eh use of the wrong word or action. Stigma is about disrespect. It is the use of negative labels to identify a person living with mental illness. Stigma is a barrier and discourages individuals and their families from getting the help they need due to the fear of being discriminated against. An estimated 50 million Americans experience a mental disorder in any given year and only one-fourth (¼) actually received mental health and other services.

DID YOU KNOW THAT?

• An estimated 50 million Americans experience a mental disorder in any given year?
• Stigma is not just the use of the wrong word or action?
• Stigma is about disrespect, and that stigma is about the use of negative labels to identify a person living with mental illness?
• Stigma is a barrier and discourages individuals and their families from getting the help they need due to the fear of being discriminated against?
• Many people would rather tell employers they have committed a petty crime and were in jail than to admit to being in a psychiatric hospital?
• Stigma results in inadequate insurance coverage for mental health services?
• Stigma results in fear, mistrust, and violence against people living with mental illness?
• Stigma results in families and friends turning their backs on people with mental illness?
• Stigma keeps people from getting needed mental health services?

DO

Do use respectful language such as:

• Person who has schizophrenia.
• Person with a psychiatric disability.
• Person with bipolar disorder.

DON’T

Don’t portray successful people with disabilities as super human.

Don’t use generic labels such as retarded or the mentally ill.

Don’t use terms like crazy, lunatic, manic-depressive, slow functioning, or normal.

WORDS CAN HEAL: Here are six steps you can follow to help end the stigma of mental illness:

1. Learn more. Many organizations sponsor nationwide programs about mental health and mental illness. Call the Knowledge Exchange Network at 800-789-2647.
2. Insist on accountable media. Sometimes the media portray people who have mental illnesses inaccurately and this makes stereotypes harder to change.
3. Obey the laws in the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against people with disabilities in all areas of public life, including housing, employment, and public transportation. Mental illnesses are considered a disability covered under the ADA.
4. Recognize and appreciate the contributions to society made by people who have mental illnesses. People who have mental illnesses are major contributors to American life, from the arts to the sciences, from medicine to entertainment to professional sports.
5. Treat people with the dignity and respect we all deserve. People who have mental illnesses may include your friends, your neighbors, and your family.
6. Think about the person, the contents behind the label. Avoid labeling people by their diagnosis. Instead of saying, “She’s a schizophrenic,” say, “She has a mental illness.” Never us the term mentally ill.

SDAS thanks the Center for Mental Health Services for the information included in this publication.

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PATBI--Protection & Advocacy Traumatic Brain Injury Program
by

Services of the Protection & Advocacy Traumatic Brain Injury Program are provided on a non-discriminatory basis in compliance with the reauthorization of the Children’s Health Act of 2000 without regard to race, color, national origin, sex, or disability.
Protection and Advocacy Traumatic Brain Injury Program

In 1996, Congress authorized the Health Resources and Services Administration (HRSA) Maternal and Child Health Bureau to implement state grant programs to improve access to health and other services for individuals with traumatic brain injury (TBI) and their families. The Children’s Health Act of 2000 reauthorized this program. In South Dakota, the program is called Protection and Advocacy Traumatic Brain Injury (PATBI) and is part of South Dakota Advocacy Services.

Who Is Considered To Have TBI?

Anyone who has suffered a cranio-cerebral head trauma as an occurrence of injury to the head arising from blunt or penetrating trauma or from acceleration-deceleration forces that are associated with any of these symptoms or signs attributed to the injury:

 Decreased level of consciousness

 Amnesia

 Other neurologic or neuropsychologic abnormalities

 Skull fracture

 Diagnosed intracranial lesions

The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.

What Services Does PATBI Provide?

• Information, referrals and advice

• Individual and family advocacy

• Representation

• Specific assistance in self-advocacy to
individuals with TBI and their families


How Can The PATBI Program Help You?

Some examples of areas, problems, or issues where the PATBI Program can provide assistance include:

• Information on Medicaid rights

• Strategy assistance on TBI related school issues

• Service refusal at mental health facilities

• Employment termination

• Transferring person from nursing home
to TBI facility

• Dealing with non-responsive protective payee

PATBI Program Objectives

• Provide education, training and outreach to potential clients, collaborating entities, interested groups and public and private providers that are in a position to inform individuals about the PATBI Program.

• Provide information and referral services on disability- related issues (as appropriate) to eligible individuals and their families who are seeking TBI program services.

• Provide advice, consultation and self-advocacy and skill development training to eligible individuals and their families to assist them in addressing disability-related issues.

• Provide representation (when necessary) to protect the rights of eligible individuals and their families in disability-related issues.

• Investigate and review disability-based complaints of inadequate service being provided to an eligible individual seeking services by a service provider or other entity involved in the eligible individual’s life.

• Advocate to identify and correct deficiencies in entities providing services to eligible individuals wherever located.

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PABSS--Protection & Advocacy for Beneficiaries of Social Security Program
by Brian C. Gosch

Benefits Planning, Assistance and Outreach
The Benefits Planning, Assistance and Outreach (BPA&O) Project is a federally-funded initiative to educate and assist individuals with disabilities receiving SSI/SSDI, and those who support them, to anticipate and plan for changes that may occur in their state and federal benefits as a result of employment. These benefits include SSI/SSDI, Medicaid, Medicare, TANF, Food Stamps, subsidized housing, worker’s compensation, and unemployment benefits.
Protection and Advocacy for Beneficiaries of Social Security
The Protection and Advocacy for Beneficiaries of Social Security is a federally funded initiative to assist beneficiaries of Social Security who are trying to return to or begin working. This Project is staffed by licensed attorneys and advocates who are able to provide legal and advocacy assistance with return to work issues.
Benefits Planning, Assistance and Outreach
The Benefits Planning, Assistance and Outreach (BPA&O) Project is a federally-funded initiative to educate and assist individuals with disabilities receiving SSI/SSDI, and those who support them, to anticipate and plan for changes that may occur in their state and federal benefits as a result of employment. These benefits include SSI/SSDI, Medicaid, Medicare, TANF, Food Stamps, subsidized housing, worker’s compensation, and unemployment benefits.
Protection and Advocacy for Beneficiaries of Social Security
The Protection and Advocacy for Beneficiaries of Social Security is a federally funded initiative to assist beneficiaries of Social Security who are trying to return to or begin working. This Project is staffed by licensed attorneys and advocates who are able to provide legal and advocacy assistance with return to work issues.
How Can These Projects Help Me?
These Projects are for people with disabilities who receive either Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) or both. The Social Security Administration has many “Work Incentives” that may make it worthwhile for you to go back to work.
BPA&O: The BPA&O staff can explain the “Work Incentives” programs of Social Security. There is a possibility that you may no longer need to rely on Social Security. A trained Benefits Specialist will sit down with you and gather information that can help you know what will happen when you begin working. The Specialist will help you understand the effects working may have on your federal and state benefits and let you decide what you want to do. There is no cost to consumers for this service.
PABSS: If you decide to return to work, you may need advocacy or legal assistance with return to work issues. The PABSS Program can assist you with these issues. Such issues might include accessing needed services, supports, and accommodations. If you are planning on returning to work and are currently using vocational rehabilitation services, you may need advocacy assistance in dealing with your provider. There is no cost for these services.
What Should I Do If I Want to Return to Work But I Am Afraid of Losing My Benefits?
If you want to return to work, but are afraid about what will happen to your state and federal benefits, you should contact a Benefits Specialist to set up an appointment. They will inform you about the different “Work Incentives,” such as the one that allows you to keep your Medicaid or Medicare benefits while you work. With this information, you can make an informed decision about going to work.
How Do I Contact a PABSS Advocate?
If you need advocacy or legal services concerning work issues, including but not limited to, issues involving the Americans with Disabilities Act, employment networks, vocational rehabilitation, and other employment issues, contact your statewide PABSS project at: South Dakota Advocacy Services, 221 S. Central Ave., Pierre, SD or call toll free at 1-800-658-4782 (voice & TDD). Email sdas@sdadvocacy.com
How Do I Contact a BPA&0 Planner?
If you need assistance in planning for the changes that may occur in your state and federal benefits as a result of employment, assistance in understanding the various work incentives, or assistance in writing a Plan to Achieve Self Support, contact your statewide BPA&O project at: Black Hills Special Services Cooperative---South Dakota Benefits Planning, Assistance & Outreach, 221 S. Central Ave., Pierre, SD 57501 or call toll free at 1-800-224-5336. Email benefitsworking4u@tie.net

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PAIMI-Protection & Advocacy for Individuals With Mental Illness
by PAIMI Program

PROTECTION & ADVOCACY
FOR INDIVIDUALS
WITH MENTAL ILLNESS PROGRAM
(PAIMI)



Assisting South Dakotans with Disabilities


South Dakota Advocacy Services
221 South Central Avenue
Pierre, SD 57501
(605) 224-8294 Voice/TDD
1-800-658-4782 Voice/TDD

Branch Offices:

South Dakota Advocacy Services
1719 Broadway, Ste. 2-B
Yankton, SD 57078
(605) 665-5616 Voice/TDD

South Dakota Advocacy Services
1575 LaCrosse St., Ste. K
Rapid City, SD 57701
(605) 342-3808 Voice/TDD

South Dakota Advocacy Services
2121 W. 63rd Pl., Ste. 30
Sioux Falls, SD 57108
(605) 361-7438 Voice/TDD

WHAT ARE THE ELIGIBILITY
REQUIREMENTS FOR SERVICES?

The PAIMI Program pursues a variety of rights protection and advocacy strategies to assist individuals with mental illness who meet the following case acceptance criteria:

1. You must currently have a significant mental illness or emotional impairment as determined by a qualified mental health professional in the state;

AND

2. You are in the process of being transported or admitted to a facility providing care or treatment; OR

You currently are receiving services in a facility providing care or treatment; OR

You are involuntarily confined in a municipal detention facility for reasons other than serving a sentence for a criminal offense; OR

You live in a community setting including your own home.

If you are not eligible for case directed services, PAIMI Program staff will provide information and referral assistance to you.

EXAMPLES OF CASE PROBLEMS

Case areas involving "abuse" include, but not limited to:
• Financial, physical, or emotional exploitation;
• Inappropriate or excessive physical restraint or seclusion;
• Involuntary medication;
• Inappropriate or excessive medication;
• Physical assault;
• Sexual assault;
• Verbal abuse.

Case areas involving "neglect" include, but not limited to:

Failure to provide for appropriate:
• Admission to a facility;
• Mental health or other diagnostic evaluation;
• Personal care or safety;
• Written treatment plan;
• Discharge plan;
• Release from a facility.

Case areas involving "rights protection" include, but are not limited to:
• Discrimination in housing;
• Discrimination in employment;
• Denial or financial reimbursement entitlements (eg. SSI, SSDI);
• Denial of access to information about rights protection or legal assistance;
• Denial of access to records.

PRIORITIES

The PAIMI Program solicits public comment each year and reviews requests for assistance as the basis for staff, Advisory Council members, and the Protection and Advocacy Governing Board members to establish priorities. The following areas are priorities for the PAIMI Program:

1. Client Services:
• Social Security appeals
• Seclusion/Restraint
• Community Integration Issues
• Special Education
• Abuse/Neglect/Rights violations

2. Systems Advocacy

3. Outreach, Education & Training

PAIMI Program staff is also involved in legislative reform, litigation, providing technical assistance, working on projects with other advocacy groups, and in providing information and referral assistance.

Funded in part by the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services.

5,000 copies of this brochure were printed by SDAS at a cost of $0.1334 each utilizing federal funds.

South Dakota Advocacy Services is part of South Dakota’s Developmental Disabilities Network


Visit our Website at:
www.sdadvocacy.com

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PADD-Protection & Advocacy Developmental Disabilities
by PADD Program


Assisting South Dakotans with Disabilities
PADD
Protection & Advocacy
Developmental Disabilities













Any person in South Dakota may contact the PADD Program regarding issues that relate to or arise because of a developmental disability. Services provided by the PADD Program are typically free. Any fees for services are discussed during the course of representation.

PADD Provides:

∙ Information & referral to appropriate agencies;
∙ Response to complaints of abuse & neglect;
∙ Negotiation with appropriate agencies to obtain benefits and/or services;
∙ Legal representation;
∙ Presentations on rights and services.

South Dakota Advocacy Services has offices in Pierre, Sioux Falls, Yankton and Rapid City. PADD staff provide services throughout South Dakota, including the Native American Tribal Nations.

The Developmental Disabilities Act, P.L. 106-402, defines the term "developmental disability" to mean a severe, chronic disability of an individual that --
(A) is attributable to a mental or physical impairment or combination of mental and physical impairment;
(B) is manifested before the individual attains age 22;
(C) is likely to continue indefinitely;
(D) results in substantial functional limitations in 3 or more of the following areas of major life activity:
(i) self-care;
(ii) receptive and expressive language;
(iii) learning;
(iv) mobility;
(v) self-direction;
(vi) capacity for independent living; and
(vii) economic self-sufficiency; and
(E) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated.
An individual from birth to age 9, inclusive, who has a substantial developmental delay or specific congenital or acquired condition, may be considered to have a developmental disability without meeting 3 or more of the criteria described above in (A) through (E) if the individual, without services and supports, has a high probability of meeting those criteria later in life.
The PADD Program, along with the South Dakota Council on Developmental Disabilities and the USD Center for Disabilities, make up South Dakota’s Developmental Disabilities Network.

PADD is funded in part by the US Department of Health & Human Services, Administration for Children and Families, Administration on Developmental Disabilities.

5,000 copies of this brochure were printed by SDAS at a cost of $0.0716 each utilizing federal funds.

South Dakota Advocacy Services is part of South Dakota’s Developmental Disabilities Network

Visit our Website at:
www.sdadvocacy.com

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PAIR-Protection & Advocacy Individual Rights
by PAIR Program

Each fiscal year, South Dakota Advocacy Services (SDAS) sponsors Public Listening Sessions throughout South Dakota. These Public Listening Sessions are advertised in a variety of ways: local newspapers, radio & television stations, SDAS agency website, and through other disability-related agencies. All are welcome to come and share with SDAS what services are beneficial and what areas in South Dakota are in need of improvement. Currently the PAIR Program is providing assistance in the following areas:

∙ Information & Referral
∙ SSI/SSDI Appeals
∙ Employment Issues
∙ ADA Questions & Issues
∙ Physical Accessibility
∙ Disability Awareness Issues
∙ At-risk Youth
∙ Incarcerated Adults
∙ Transitional Services
∙ Education & IEP Issues

The PAIR Program collaborates with other SDAS Programs and disability-related agencies throughout South Dakota to provide training and outreach opportunities to the public to assist persons with disabilities. If you are aware of any concerns that you believe require further attention and are willing to assist in scheduling a training event in your community, please call the SDAS toll-free number.

South Dakota Advocacy Services is part of
South Dakota’s Developmental Disabilities Network

PAIR is funded by the U.S. Department of Education, Rehabilitation Services Administration.
5,000 copies of this document were printed by SD Advocacy Services at a cost of $0.0716 each
utilizing federal funds.


Assisting South Dakotans with Disabilities

PAIR
Protection & Advocacy
of Individual Rights Program














Services provided by the Protection and Advocacy of Individual Rights Program (PAIR) are funded by the U.S. Department of Education, Rehabilitation Services Administration. All services are provided without regard to race, color, national origin, sex or disability.

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Students in Crisis
by PAIMI Staff

In our rapid paced and often overwhelming society, children and adolescents in academic settings are often in crisis. With budget cuts, school districts often find themselves without guidance counselors to address these crisis situations. School districts may find the following information to be useful in dealing with children in crisis, in the absence of trained counselors.

The Division of Mental Health has a website which can be accessed at the following web address:

http://www.state.sd.us.

Click on the Family/Health section. Under Family/Health, click on the Division of Human Services. From there you may access sites pertinent to Children’s Services, Crisis Counseling, Mental Health Resources and Links, as well as other useful informational sites.
A listing of area mental health centers is available at:


http://www.state.sd.us/dhs/dmh/cmhclist.htm.

Under this site, you may access the listing of counties served by each mental health center as well as the address and phone number for the mental health center.


If you feel that the child is in immediate risk of harming self or others, it is important to provide for their safety. Here are some things to consider:


1. Contact the parent and have them take the child to the nearest emergency room for an evaluation.


2. You may contact your mental health center for an emergency appointment.
3. If there is an immediate risk, you may contact law enforcement in your area to transport the child to a place where they will be safe.


4. You may also contact the Needs Assessment Office at Avera McKennan at 605-322-8000; Rapid City Regional Hospital at 605-719-1000; Avera St. Luke’s in Aberdeen at 605-622-5000.


This is by no means a comprehensive listing, but rather an overview of how to respond to a crisis situation in the academic setting. The following is a listing of Mental Health Centers from the Division of Mental Health website. There is also a Mental Health Resource Guide for the Sioux Falls area available through Helpline by dialing 211 or 605-339-4357.







MENTAL HEALTH CENTERS:

•Behavior Management Systems (605-343-7262)
350 Elk Street
Rapid City, SD 57701

•Capital Area Counseling Services (605-224-5811)
PO Box 148
Pierre, SD 57501

•Community Counseling Services (605-352-8596)
1552 Dakota Avenue South
Huron, SD 57350

•Dakota Counseling Institute
(605-996-9686)
910 West Havens
Mitchell, SD 57301

•East Central Mental Health & Chemical Dependency Center
(605-697-2860)
211 Fourth Street
Brookings, SD 57006

•Human Service Agency
(605-886-0123)
123 19th Street, SE
Watertown, SD 57201



•Lewis & Clark Behavioral Health Services
(605-665-4606)
1028 Walnut
Yankton, SD 57078

•Northeastern Mental Health Center
(605-225-1014)
628 Circle Avenue
Aberdeen, SD 57401

•Southeastern Behavioral Health Services
(605-336-0510)
2000 S. Summit
Sioux Falls, SD 57105

•Southern Plains Behavioral Health Services
(605-842-1465)
500 E. 9th St.
Winner, SD 57580

•Three Rivers Mental Health & Chemical Dependency Center
(605-374-3862)
11 East Fourth Street
Lemmon, SD 57638

Funded by the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services

Revised 3/11/2005
.
Assisting South Dakotans with Disabilities


STUDENTS IN CRISIS:
WHERE TO GO,
WHO TO CONTACT

RESOURCES FOR
SCHOOL DISTRICTS


This information is provided as general information available for school districts who are seeking resources for students in crisis. This information should not be considered as the only resources available for school districts, but can be a starting point for some schools.


A Publication of the Protection & Advocacy for Individuals with Mental Illness (PAIMI) Program
a component program of
South Dakota Advocacy Services
1-800-658-4782 (Voice or TDD)
www.sdadvocacy.com

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Mental Illness Hearing Rights
by PAIMI Program

In order for a commitment to be ordered there must be “clear and convincing evidence”, supported by written findings of fact and conclusions of law that:

1) The person meets the criteria in SDCL 27A-1-2:
a. The person has a severe mental
illness,
b. Due to the severe mental illness, the
person is a danger to self or others,
and
c. The person needs and is likely to
benefit from treatment,

2) The person needs and is likely to benefit from the treatment which is proposed, and

3) The commitment is to the least restrictive treatment alternative.

If the findings above are not made, the person is to be released. The referring county shall provide transportation of the person to the county where the person was taken into custody, if the person chooses.

The board of mental illness may commit a person to the Human Services Center, or to a Veterans’ Administration Hospital. The board may also commit a person to a private facility if that facility agrees to accept the commitment and if the commitment will not result in liability to any county for the cost of treating such person.

The board of mental illness may order an initial commitment period of up to ninety days. Additional review periods may be ordered by the board of mental illness. All rights apply to any mental illness hearings.

If a commitment is ordered, the board of mental illness must immediately inform the person and the person’s attorney of the person’s right to appeal the commitment.

Persons who are interested in obtaining further information may contact South Dakota Advocacy Services. All offices can be reached by calling: 1-800- 658-4782

SD Advocacy Services
221 South Central Avenue
Pierre, SD 57501
800-658-4782 Voice/TDD
605-224-8294 Voice/TDD

SD Advocacy Services
1719 Broadway, Suite B-2
Yankton, SD 57078
605-665-5616

SD Advocacy Services
1575 LaCrosse Street, Suite K
Rapid City, SD 57701
605-342-2575

SD Advocacy Services
2121 W. 63rd Pl, Ste. 30
Sioux Falls, SD 57108
605-361-7438

Funded by the U.S. Department of Health and Human Services,
Substance Abuse and Mental Health Services Administration, Center for Mental Health Services.

REVISED 3/21/2006

Assisting South Dakotans with Disabilities


MENTAL ILLNESS HEARING RIGHTS INFORMATION


This information is provided as general information regarding mental illness hearings. A person who may be subject to a mental illness hearing is strongly encouraged to consult with a professional attorney. This information should not be considered as legal advice.



A Publication of the Protection & Advocacy for Individuals with Mental Illness (PAIMI) Program
A component program of South Dakota Advocacy Services
800- 658-4782 (Voice or TDD)
www.sdadvocacy.com
• The person may choose to go to the hearing or not go to the hearing.

• The person may testify in his/her own behalf at the hearing, but he/she cannot be forced to testify.

• The person may subpoena and cross-examine witnesses and present evidence.

• The person may decide whether any person not necessary for the hearing is allowed to be present at the hearing.

• The person will be represented by an attorney.

• The person has the right to be informed of the names and functions of any other persons who will be attending the hearing and/or testifying at the hearing.

• If the person chooses not to attend the hearing, the person’s attorney must state for the record that the person has been informed of the hearing and of the person’s right to appear and the person chose to not exercise this right.

• The person has the right to an independent evaluation by a qualified mental health professional.

• The person has the right to a mental illness hearing within five days after being taken into custody, within six days if there is a Saturday, Sunday, or holiday within that period, or within seven days if there is a Saturday, Sunday, and a holiday within that period.

• The person has the right to be informed of the names and functions of any other persons who will be collecting information about the person for the hearing, and/or performing any evaluation of the person for the hearing, and/or to be informed of how the information/evaluation may be used.

• The person has the right to see and to consult with an attorney prior to the hearing. The person also has the right to participate in planning for the hearing and to participate in the hearing.

• If for any reason the person feels he/she has not had enough time to prepare for the hearing, or if the person has not consulted with an attorney prior to the hearing, the person may attend the hearing and request that the hearing be continued. This request, if granted, will delay the hearing so the person will have more time to prepare for the hearing. The person will remain at the facility during the continuance unless the person is discharged by his/her physician. Some people choose to enter a treatment program voluntarily. If this happens there won’t be a mental illness hearing. The chairperson of the county board of mental illness will make the final determination as to whether the person be admitted voluntarily to a facility or treatment program, instead of having a mental illness hearing.

• Before the person’s mental illness hearing, a qualified mental health professional who is not an employee of the facility will examine the person. The person may choose whether to see the qualified mental health professional. If the person refuses to see the qualified mental health professional, the professional may testify at the hearing based on the person’s records. The qualified mental health professional’s testimony shall include what alternatives are or should be made available, what alternatives were investigated, and why any investigated alternatives are not deemed appropriate.

• The decision about whether the person will be committed to a mental health treatment facility is made by the board of mental illness. Such boards are made up of an attorney and two lay people who hear the testimony presented at the hearing, and make the decision regarding commitment. There may be several people present at the hearing. These would include; the members of the board of mental illness, the person, the person’s attorney, the attorney representing the opposition, and other witnesses. The person may choose anyone else the person would like to have present at the hearing. This is a formal legal hearing.



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