South Dakota Advocacy Services

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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

Advocating the Rights of South Dakotans with Disabilities

INTRODUCTION TO PUBLICATIONS
I.D.E.A. Outline Table of Contents
I.D.E.A. Outline - Part A
I.D.E.A. Outline - Part B
I.D.E.A. Outline - Part C
I.D.E.A. Outline - Part D
MENTAL HEALTH ADVANCE DIRECTIVES*
A GUIDE TO RIGHTS for Individuals With Mental Illness
YOUR RIGHTS as a Client of A Mental Health Center*
EMERCENCY 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.

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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

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I.D.E.A. Outline - Part B
by John A. Hamilton

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 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. If parents agree, the rate of reimbursement is negotiable and parents must, at a minimum, be reimbursed at the state rate (currently 32 cents per mile in South Dakota). 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). The child must then be provided with those services stated in the program, because under both §504 and IDEA, “each handicapped child must be provided all services necessary to meet his/her special education and related needs.” Edwin Martin, Chief, Bureau of Education for the Handicapped, U.S. Office of Education, Letter to Chief State School Officers, November, 1977.

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 what was required as a “basic floor of opportunity.” 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.”

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 25 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?]

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 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.”

34 C.F.R. §104.4(b).

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 [NOTE: This individual 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 this section, 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:

“(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.

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