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Overview of Special Education
Laws and Obligations
- a special education training –
June 18, 2012
- by -
Mary Kay Klimesh
Partner
Seyfarth Shaw LLP
131 South Dearborn Street
Suite 2400
Chicago, IL 60603
Phone: (312) 460-5000
[email protected]
Olga Pribyl
Vice President of Pro Bono and
Special Education Clinic
Equip for Equality
20 North Michigan Avenue, Suite 300
Chicago, IL 60602
Phone: (312) 895-7321
[email protected]
Legal Framework
Individuals with Disabilities Education
Improvement Act (often referred to as
“IDEA”)
 Americans With Disabilities Act (ADA)
 Section 504 of the Rehabilitation Act
(Section 504)

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IDEA and Charter Schools




IDEA is the federal law providing the specific mandates for public
school obligations to provide special education services to
eligible students.
In Illinois, when a school’s charter is issued by a local board of
education, that charter school is considered as a school within
the district over which that board of education exercises
jurisdiction for purposes of compliance with IDEA and its
procedural requirements and obligations to students.
In Illinois, when a school’s charter is issued by ISBE, that charter
school is considered as its own local education agency
responsible for complying with IDEA.
In either case, all charter schools and its personnel must comply
with the procedural requirements of IDEA.
3
Child Find
Each school district is responsible for
actively seeking out and identifying all
children from birth through age 21 who
may be eligible for special education and
related services.
4
Child Find
Child find responsibilities include:
 An annual screening of children under
the age of five;
 Ongoing review of each child’s
performance and progress by
teachers/professional personnel; and
 Ongoing coordination with early
intervention programs.
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IDEA Eligibility

To qualify for special education and related
services, a student must be between the ages
of 3 and 21 and must satisfy both parts of a
two-part test:


The student must meet the definition of one or
more of the categories of disabilities specified
The student must be shown to be in need of
special education and related services as a result
of his disability or disabilities.
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IDEA Eligibility

A student cannot be eligible for special
education services without: a referral; a
determination that an evaluation needs
to be completed; a parental consent for
the evaluation (unless consent is
overridden through a due process
hearing); and, the completion of a case
study evaluation.
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IDEA Eligibility



A referral may be made by any concerned person, including
school personnel, a parent, an employee of a community
service agency, or another professional having knowledge of a
child’s problems.
If it is determined that an evaluation is needed, informed
parental consent must be obtained before conducting an
evaluation. Further, parental consent for evaluation shall not
be construed as consent to placement or receipt of special
education services.
The evaluation must include a variety of assessment tools and
strategies to gather relevant functional, development, and
academic information about the child, including information
provided by the parent, to assist in determining whether the
child is a child with a disability.
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Evaluations
Time Frame for Evaluations:


The case study evaluation and initial IEP meeting should be
completed within 60 school days after the date of written
consent from the parent.
If consent is obtained with less than 60 school days left in the
school year, then the evaluation and IEP meeting to determine
eligibility must occur before the first day of student attendance
for the following school year.
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Evaluations
Parent Refusal of Consent for Initial Evaluation:
 If the parent of a child does not provide
consent for an initial evaluation or the parent
fails to respond to a request to provide the
consent, the school district may pursue the
initial evaluation of the child by utilizing due
process procedures.
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Evaluations
Revocation of Consent for Evaluation:
 Revocation of informed written consent
from the parent may be communicated
orally or in writing.
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Eligibility Determination

The IEP team must determine whether
the child is eligible for special education
and related services as a child with a
disability and also must determine the
child’s educational needs.
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Eligibility
The Eligibility Categories:

Autism
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Deaf-Blindness
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Deafness

Emotional Disability (ED)
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Hearing Impairment

Cognitive Disability

Multiple Disabilities

Orthopedic Impairment

Other Health Impairment (OHI)

Specific Learning Disability (SLD)

Speech or Language Impairment

Traumatic Brain Injury

Visual Impairment

Developmental Delay
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Eligibility

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Consideration of Adverse Affect and Need for
Special Education:
In order to qualify for services pursuant to the
IDEA:


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The child must have one of the specified disabling
conditions or impairments;
The impairment must adversely affect educational
performance; and
The child must, by reason of the disability, need
special education and related services.
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Provision of FAPE
Students who qualify for special education
services must be provided the services at no
cost to their parents. School districts must
ensure that a free, appropriate public education
(FAPE) is available to all children with
disabilities residing in the State between the
ages of 3 and 21, inclusive, including children
with disabilities who have been suspended or
expelled from school.
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Provision of FAPE

In Bd. of Educ. of Hendrick Hudson v.
Rowley, the U.S. Supreme Court stated that
when assessing whether the individualized
education program provided and/or planned
for an eligible student provides FAPE, the
court’s inquiry is twofold:


First, has the State [School District/School]
complied with the procedures set forth in the Act?
And second, is the individualized educational
program developed through the Act’s procedures
reasonably calculated to enable the child to
receive educational benefits.
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Individualized Education
Program (IEP)
In developing the IEP, 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 (including
evaluations presented by the parent); and
 the academic, development, and functional
needs of the child.
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Individualized Education
Program (IEP)
IEP should include:
1.
A statement of the child’s present levels of academic
achievement and functional performance
2.
A statement of measurable annual goals, including academic
and functional goals
3.
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
4.
A statement of the special education and related services and
supplementary aids and services, based on peer-reviewed
research to the extent practicable
5.
An explanation of the extent, if any, to which the child will not
participate with nondisabled children in the regular class
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Individualized Education
Program (IEP)
IEP should include (cont.):
6.
A statement regarding the child’s ability to participate in State and
district-wide assessments
7.
A statement as to the languages or modes of communication in which
special education and related services will be provided, if other than or
in addition to English
8.
A statement as to whether the child requires the provision of services
beyond the district’s normal school year in order to receive FAPE
(“extended school year services”) and, if so, a description of those
services that includes their amount, frequency, duration, and location
9.
The projected date for the beginning of the services and modifications,
and the anticipated frequency, location and duration of those services
and modifications
10.
A behavioral intervention plan (for certain students)
11.
A transition plan beginning not later than the first IEP to be in effect
when the child turns 14½, and updated annual thereafter
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Individualized Education
Program (IEP)
IEPs for Students on the Autism Spectrum under Illinois law:
 Team may consider the following in developing the IEP:
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The verbal and nonverbal communication needs of the child
The need to develop social interaction skills and proficiencies
The needs resulting from the child’s unusual responses to sensory
experiences
The needs resulting from resistance to environmental change or
change in daily routines
The needs resulting from engagement in repetitive activities and
stereotyped movements
The need for any positive behavioral interventions
Other needs
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Individualized Education
Program (IEP)
IEP Team Participants:

The parents of a child with a disability

Not less than 1 regular education teacher
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Not less than 1 special education teacher
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A representative of the local education agency

An individual who can interpret the instructional implications of evaluation results

A qualified bilingual specialist or bilingual teacher, if the presence of such a
person is needed to assist the other participants in understanding the child’s
language or cultural factors as they relate to the child’s instructional needs.

In the case of a child whose behavior impedes his or her learning or the learning
of others, a person knowledgeable about positive behavior strategies.

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.

Whenever appropriate, the child with a disability.
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Individualized Education
Program (IEP)
The IEP Team must also consider special
factors, as appropriate:

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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;
in the case of child with limited English proficiency, language
needs;
for blind or visually impaired student provide for instruction in
Braille and the use of Braille;
communication needs;
need for assistive technology devices.
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Individualized Education
Program (IEP)
The regular education teacher’s participation in
the development of the IEP is IMPORTANT and
the regular education teacher must, to the extent
appropriate, participate in the development of the
IEP, including the determination of appropriate
positive behavioral interventions and supports,
and other strategies, and the determination of
supplementary aids and services, program
modifications, and support for school personnel.
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Individualized Education
Program (IEP)

AGREEMENT TO MODIFY IEP: In making changes to
a child’s IEP after the annual IEP meeting for a school
year, the parent and the school district 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.

AMENDMENTS TO THE IEP: Changes to the IEP may
be made either by the entire IEP Team or by amending
the IEP rather than by redrafting the entire IEP. Upon
request, a parent shall be provided with a revised copy
of the IEP with the amendments incorporated.
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Placement in the Least
Restrictive Environment
The LRE Mandate:
 IDEA requires that each district ensure that 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
nondisabled and that special classes, separate
schooling, or other removal of children with disabilities
from the regular educational environment occur only
when the nature and 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.
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Placement in the Least
Restrictive Environment
Regarding the placement decision:
 The placement decision must be made by a group of
persons knowledgeable about the child
 The child’s placement must be determined at least
annually, is based on the child’s IEP and is as close as
possible to the child’s home
 Unless the IEP of a child with a disability requires some
other arrangement, the child must be educated in the
school he/she would attend if nondisabled
 In selecting the LRE, consideration must be given to
any potentially harmful effect on the child or on the
quality of services that the child needs
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Consent for Services
Required

Informed consent from the parent of the
student is required before providing
special education and related services
to the child.
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Consent for Services
Parental Refusal to Consent to Services:
 Under the IDEA, if the parent of a child
refuses to consent to services, the
schools/school district cannot provide
the services and a due process hearing
CANNOT be brought to override the
parents’ refusal to consent.
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Consent for Services
Revocation of Consent for Special Education
and Related Services:
 A parent may revoke consent for special
education and related services in writing or
orally. A parent’s oral revocation of consent
should be memorialized in writing and a copy
provided to the parent within five days.
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Discipline
Suspension:
 School personnel 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 school days (to the
extent such alternatives are applied to children without
disabilities).
 School district does not need to provide services for the first 10
cumulative days of suspension during the school year.

A Manifestation Determination Review meeting need not occur
before a special education student is suspended from school
unless the suspension amounts to a change in placement.
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Discipline
Subsequent Suspension:
 School officials may suspend an IDEA eligible
student from school for additional removals of
not more than 10 consecutive school days in
that same school year for separate incidents
of misconduct so long as the removals do not
constitute a “change in placement.”
 SERVICES MUST BE PROVIDED during the
suspension period BEGINNING ON THE
11TH CUMULATIVE DAY OF SUSPENSION
during the school year.
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Discipline
Manifestation Determination Review:
 A Manifestation Determination Review Team MUST
REVIEW:
 all relevant information in the student’s file, including the
child’s IEP;
 any teacher observations; AND
 any relevant information provided by parent[s]
 TO DETERMINE:
 if the conduct in questions was caused by, or had a direct
and substantial relationship to, the child’s disability; OR
 if the conduct in question was the direct result of the
school district’s failure to implement the IEP.
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Discipline
IF EITHER OF THESE CONDITIONS IS
MET, THE STUDENT’S CONDUCT
MUST BE DETERMINED TO BE A
MANIFESTATION OF THE CHILD’S
DISABILITY.
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Discipline
A Manifestation Determination Review
MUST occur for any change of placement
of a child with a disability because of a
violation of a code of student conduct.
34
Discipline
If the student’s conduct is determined to be a manifestation of his or her
disability, the IEP Team MUST:
EITHER:

Conduct a functional behavioral assessment unless one already has
been conducted before the conduct occurred and implement a
behavioral intervention plan for the child; OR

If a behavioral intervention plan already has been developed, review
the behavioral intervention plan, and modify it, as necessary, to
address the behaviors.
AND

Return the student to the placement from which the student was
removed, unless the parent and the school district agree otherwise, or
unless the student has engaged in conduct allowing placement in 45day interim placement.
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Discipline
Expulsion:
 IDEA authorizes the expulsion of an IDEA
eligible student from school (the removal of
students from school for more than 10
consecutive school days) only after a
Manifestation Determination Review Team
determines that the student’s misconduct is
unrelated to the disability.
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Discipline
45 School Day Removals:
 IDEA provides for the placement of a child
with a disability in an interim alternative
educational setting for not more than 45
SCHOOL days in three circumstances:



If the student carries or possesses a weapon;
If the student knowingly possesses or uses illegal
drugs, or sells or solicits the sale of a controlled
substance, or
If the student has inflicted serious bodily injury
upon another person while at school.
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Discipline
45 School Day Removals:
 May be considered even if the child’s
behavior is a manifestation of the
disability.
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Discipline
Non-IDEA Eligible Students are Protected by
IDEA:
 A student who has not been determined to be
eligible for special education and related
services and who has engaged in behavior that
violates a code of student conduct, can assert
any of IDEA’s protections if a school/school
district had knowledge that the child was a child
with a disability before the behavior that
precipitated the disciplinary action occurred.
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Discipline

School district is deemed to have knowledge that a child
is a child with a disability if –



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;
The parent of the child has requested an evaluation of the
child; or
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.
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Discipline
No Knowledge:
 A school district 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
IDEA or has refused services under IDEA, or
if the child has been evaluated and it was
determined that the child was not a child with
a disability under IDEA.
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Eligibility for Services & Protection
Against Discrimination Under the
ADA and Section 504


Under Section 504,
student must be
determined, as a result
of an evaluation, to
have a “physical or
mental impairment” that
“substantially limits one
or more major life
activities.” 29 U.S.C. §
705(20)(B).
Broad scope

ADA Amendments Act
2008: act “shall be
construed in favor of
broad coverage of
individuals under this
Act, to the maximum
extent permitted by the
terms of this Act.”
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ADA’s Definition of Disability

A physical or mental impairment that
substantially limits one or more major life
activities of such person, a record of such an
impairment, or being regarded as having such
an impairment.

Whether an impairment substantially limits a
major life activity is to be determined without
reference to the ameliorative effects of
mitigating measures.
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“Major life activities” include,
but are not limited to:


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Caring fore oneself
Performing manual tasks
Seeing
Hearing
Eating
Sleeping
Walking
Standing
Lifting
Bending
Speaking
Breathing
Learning





Concentrating
Thinking
Communicating
Working The operation of a
major bodily function,
including but not limited to,
the function of the immune
system, normal cell growth,
digestive, bowel, bladder,
neurological, brain,
respiratory, circulatory,
endocrine, and
reproductive functions.
Reading
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Section 504, the ADA and
IDEA



Schools cannot discriminate against people, including
students, who are otherwise qualified to participate in
school activities but are inhibited from participating to
the same extent as a nondisabled person on the basis
of a disability.
A student not found eligible under the IDEA may still
be eligible for special education and services under
Section 504 or the ADA.
However, students who are eligible for services
under the IDEA will always meet the definition of
eligibility for Section 504 and the ADA.
45