Author: Wally Winter & Larry Parham, LAF
Last updated: November 2005
Free and appropriate public education (FAPE)
Appropriate evaluation of student needs
Individualized education program (IEP)
Least restrictive environment consideration (LRE)
Parent and/or student participation in decision making
Procedural safeguards (due process hearings and school disciplinary proceedings)
Free Appropriate Public Education means providing to children with disabilities specialized services they need to succeed in school at no cost to the parent. These services must be individualized and based on the educational needs of each separate student.
Appropriate evaluation of a student's needs requires that any student with a disability, or suspected of having a disability must be evaluated by professionals certified by the state. Federal law mandates a multi-disciplinary evaluation. A classroom teacher alone cannot certify whether or not a student has a disability, nor can the school principal or other staff member make this decision alone. The evaluation must be done by a team of appropriate professionals. A licensed, certified school psychologist, certified social worker, nurse, special education teacher, and regular education teacher must be part of the team doing the evaluation. Other parties may also be required, depending on the disability, or suspected disability. These persons may be a speech language pathologist, a hearing specialist, or other, qualified individuals. These evaluations or assessments are known as the Case Study Evaluation (CSE), and the team meeting with the parent after completion of the assessments is known as the Eligibility Conference (formerly known as the Multi-Disciplinary Conference or MDC).
The Individualized Education Program (IEP) is a "blueprint" that lists the services a student will receive in the coming school year. It is a written document and your child must receive the services listed in it. The IEP is a legal document and you, or the child's surrogate parent must receive a copy of it at no charge.
The IEP is written up after the eligibility conference. The Eligibility Conference is held after qualified professionals have, with parental consent, evaluated the student. The IEP usually is written up immediately following a decision to place the student in special education. The parent has the right to receive written notification of the date and time of the conference at least 10 days in advance. The parent has the right to bring other persons, such as the child's therapist, or other person(s) having knowledge of the child, to the conference. A legal representative or parental advocate may also attend on behalf of the student and parent.
A Section 504 Plan refers to Section 504 of the Civil Rights Act of 1973. These plans are written for students who do not have a specific learning or other disability, but who require some modification or accommodation in order to benefit on an equal basis with non-disabled students.
The Case Study Evaluation, Eligibility Conference, and Individualized Education Program or Section 504 Plan must all be completed within 60 school days from the date the student was referred for a case study evaluation. This a state law requirement. (Previously, the date of referral was considered to be the date contained in a written request to a school district representative from a parent or other interested party regarding the student being evaluated. Currently, the date of referral is considered to be the date a parent or guardian signs a consent allowing the school district to evaluate the student)
If a parent or other party requests an evaluation to determine whether the student should be receiving special education services and the local school does not agree, written notice must be given to the parent or other requesting party within ten days that the school is denying the request. The letter must state why the school will not honor the request. The parent(s) may then choose to exercise the procedural safeguards available under law, by requesting a mediation or due process hearing if they feel that the school's decision is wrong.
Be aware that your local school may suggest written intervention plans rather than a case study evaluation. These plans are short term in nature and often do not carry over into the next school year. An IEP or Section 504 plan stays in effect as long as the student demonstrates a need for such services, although they must be reviewed annually.
The specialized instruction requirement means that each student is legally entitled to receive instruction from a teacher certified to teach a student with a specific disability. In other words, a learning disabled student must receive instruction from a teacher certified to instruct learning disabled students, and a student with a behavior disorder must receive instruction from a teacher certified to provide instruction to behavior disordered students. Obviously, braille or sign language can only be taught by those qualified to teach it. (At present, the rules regarding teacher certification are changing, but not finalized. The Illinois State Board of Education has several proposals under review. The preceding information will undoubtably be changed)
Related Services include social work services, transportation, nursing and health related services, and vision impaired services. Occupational and physical therapy are other examples. There are other related services that can be provided depending on the needs of the student.
Assistive Technology is specialized equipment provided at the school district's expense to enable students to attend class, and/or to help the student learn. Hearing aids, computers, and tape recorders are some examples of this technology. There are also special types of seating equipment, visual aids, and other equipment adaptable for students with disabilities.
Students must be educated in the least restrictive environment appropriate to their needs. There must be a verifiable or compelling reason why a student cannot simply attend class at his or her local school and be taught in a classroom with non-disabled students with the same materials and the same teacher. For students receiving special education services, the first option is a regular education environment with the use of supplementary aids and services. When this type of integration is not appropriate there should be a range of more restrictive placement options available, beginning with a special education resource program where the student is "pulled out" of the regular classroom for a portion of the school day. Therapeutic day school placements are increasingly difficult in view of the least restrictive environment (LRE) mandate of the federal law, and the court order in the Corey H. case.
The two most common forms of special education instruction are the resource program and the self-contained, full-time special education program. Generally speaking, a resource program is one where the student is "pulled out" of the regular classroom for one or more periods a day, and receives some form of specialized instruction. For example, a student may leave his classroom for two periods of reading instruction with the learning disabilities teacher. Resource programs involve services for less than the whole school day, generally for less than one half of the school day. A self-contained special education program is one where the student spends all, or most of the school day with other special education students. However, even IEP's with self-contained programs can contain provisions so that the student can spend some time during the school day with other, non-special education students. Whether or not this happens depends on the severity of the student's disability. Placement in a therapeutic day school, in most cases, will only be considered after an unsuccessful attempt to serve the student in a special education classroom has been made.
The Chicago Public Schools have entered into a settlement agreement resulting from a lawsuit commonly know as the Corey H. case. This lawsuit claimed, among other things, that the Chicago School District placed students in overly restrictive and isolated settings, thereby needlessly segregating students with disabilities from the general student population. The lawsuit maintained that these students could be served in their neighborhood schools if the proper support was given to them there. A school district must, under law, educate students to the maximum extent appropriate with their non-disabled peers.
Parent and/or student participation in special education decision making is mandated by the recently amended Individuals with Disabilities Education Act (IDEA). The parent must be afforded the opportunity to participate fully in decisions on how their child is to be educated. This opportunity begins with the initial signing of a consent by the parent to permit the school to do a case study evaluation (CSE). This consent must be signed before the qualified professionals can begin evaluating the student. An additional consent must be signed by the parent before the initial special education can be implemented, assuming the student was found to be in need of special education services. If the parent refuses to consent, the school district can initiate a due process hearing.
Parental concerns must be noted in the development of the student's IEP. There is a Parental Vision page or section in an IEP, where the parent's future vision can be written regarding what they would like for their child to achieve academically. There is also a provision for the parent to express in writing what concerns they may have regarding their child's present and future needs, and what the child's strengths are. For example, some parents may wish to note their preference that their child be educated with non-disabled students, and want their child "mainstreamed" with the general student population. Noting such preferences can be helpful in persuading school personnel to implement them.
Special education rights are usually transferred to the student at age eighteen, provided the student is competent and not severely disabled to the point where he or she cannot make responsible, informed decisions.
Procedural safeguards provide a means for parents to redress violations of student and parental rights. The mediation proceeding or the due process hearing are ways parents can be heard if they believe their children's rights have been violated. If you feel your child's special education rights are being violated, a mediation or a due process hearing can be requested through the Illinois State Board of Education. ISBE will provide a mediator at no cost to the parent or student. However, both the school district and the parent must first agree to accept mediation to resolve the dispute. A due process hearing can be requested by writing the local school district's superintendent. Such a request must state the nature of the dispute and state the remedy for solving the dispute. A hearing officer will be appointed at no charge to the parent or student. Both mediation and the due process hearing are semi-formal administrative proceedings and consultation with an attorney is advisable before making a request for either.
Requests for mediation or a due process hearing are usually made when the school refuses to conduct a case study evaluation on the student, or when the parent disagrees with the results of the case study evaluation. These requests can also be made (and frequently are), when the parent is dissatisfied with or disagrees with the services being offered to their child by the school district. Remember, the IEP is a legal document and the students must receive the services listed in it, and for the length of time specified in the document.
Often children with special education needs exhibit behavior inappropriate for classroom settings. These students are frequently suspended without anyone at their school making an attempt to correct the behavior. A student does not have to be in special education to receive a behavior management plan, nor are all students with behavior problems disabled. There are children who do not function well in controlled environments such as a classrooms, or who exhibit behavior problems when placed in environments with other children. No matter how severe the behavior is, no parent can be compelled to serve as an in-school aide for their child.
In the Chicago Public Schools, a special education student cannot be suspended for more than 10 consecutive, or 10 cumulative school days in one school year, without the school district holding an IEP meeting, known as a manifestation review, to determine if the misconduct is related to the students disability. If the local school is considering such action, the parent must receive written notice prior to the IEP meeting, and such notice must describe the disciplinary action being considered and the time and date of the meeting. This IEP meeting must take place within 10 days of the date of the alleged misconduct. The 1999 IDEA regulations permit additional removals of not more than 10 consecutive school days in the same school year for separate incidents of misconduct as long as these removals do not constitute a change in placement. If your child has received a suspension, you should keep a record of the date of the suspension, and the number of days your child was not allowed to return to class. In the Chicago Public Schools, if a special education student is to be suspended for more than10 consecutive or cumulative days, the school personnel must first consult with and obtain approval from the Due Process and Mediation Department. Unless such approval has been obtained, the ten school day rule should apply.
Expulsion is defined by the Chicago Public Schools as "the removal of a student from school for 11 days or more, to a maximum of two calendar years." Expulsion proceedings are initiated against a student when the school feels the student behavior constitutes "gross disobedience or misconduct." In the Chicago Public Schools these acts of misconduct are the use, possession, and/or concealment of a firearm/destructive device or other weapon, arson, bomb threat, robbery, use, possession, sale or delivery of alcohol, illegal drugs, narcotics, controlled substances, or contraband, sex violations aggravated battery, murder, attempted murder, and kidnaping. Parents must receive notice to appear at an expulsion proceeding by certified or registered mail at least 10 days before the proceeding is to take place. For special education students, including those students who may not be receiving special education services, but have been identified as likely to need such services, a manifestation determination review must also be convened prior to any expulsion proceeding. If the school personnel determine that the misconduct is a manifestation of the student's disability, the child cannot be expelled in most cases. If the school personnel determine the misconduct is not a manifestation of the student's disability, the parent may appeal by requesting a hearing. Exceptions to this rule are students who are involved with drugs or dangerous weapons, or who have been found by a hearing officer to present a likely threat of injury to other students.
Legal Assistance Foundation of Chicago
111 W. Jackson, 3rd Floor
Chicago, Il. 60604
Contact Wallace Winter or Larry Parham
Family Resource Center on Disabilities
20 E. Jackson, Room 300
Chicago, Il. 60604
(Request parent training)
Council for Disability Rights
205 W. Randolph, Suite 1650
Chicago, Il. 60606
CH.A.D.D. (A support group for parents
of children with attention deficit disorder)
in Chicago/Hyde Park call 773-779-0677
Illinois State Board of Education
100 N. First Street
Springfield, Il. 62701
(Request a copy of "A Parents' Guide)
Center for Elder and Disability Law
710 N. Lakeshore Drive, 3rd Floor
Chicago, Il. 60611
This outline of IDEA is not intended to be complete or exhaustive. For a more detailed written explanation of IDEA, its implementing regulations or statues, please call either Wallace C. Winter, (312) 347-8385, or Larry Parham, (312) 347-8392, of the Legal Assistance Foundation of Metropolitan Chicago.
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