What If The School District Has A Policy That Related Services Are Available Only At A Segregated Location?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, a policy of this nature is against the law. The school cannot legally have a policy that predetermines location of placement for related services. A district must provide the needed related services to meet individual needs of the child in the least restrictive environment. A decision about location of services is determined by the IEP Team.

The Office of Special Education Programs says: "The determination of appropriate program placement, related services needed and curriculum options to be offered is made by the IEP team based upon the unique needs of the child with a disability rather than the label describing the disabling condition or the availability of programs."

May The Nature or Severity Of A Child's Disability Be Used To Justify A Segregated Educational Setting?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, all children with disabilities have the right to an education in the least restrictive environment based on their individual educational needs, not the "label" that describes their disability. Schools must ensure that to the maximum extent appropriate, children with disabilties, including children in public or private institutions or other care facilities, are educated with children who are nondisabled.

Special classes, separate schooling, or other removal of children with disabilities from the general education environment occurs only if the nature of severity of the disability is such that education in general education classes with the use of supplementary aides and services cannot be achieved satisfactorily (34 C.F.R. 300.114(2)).

What If The School Says The Child Cannot Be Included Because He/She Cannot Benefit Academically From Instruction In The General Education Class?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the school should not make such an assertion. The Federal District Court in Sacramento City Unified School District v. Holland (1992), said the law requires educating a child with disabilities in a general education classroom if the child can receive a satisfactory education there, even if it is not the best academic setting for the child. The court looked at whether the child's IEP goals and objectives could be met in the classroom by adapting the curriculum, or by providing supplementary aids and services. The school district in Holland argued that a general education classroom would not be apppropriate for a student if that would require significant changes to the general curriculum for the child. However, the court rejected the school's view. It said that students with disabilities may require and be entitiled to substantial curriculum changes to be sure they benefit from being in the general education class. The court stated that "modification in the curriculum for a student with a disability, even dramatic modification, has nonsignificance in and of itself. The IDEA, in its provision for the IEP process, contemplates that the academic curriculum may be modified to accommodate the individual needs of students with disabilities."

"[IDEA] does not require states to offer the same educational experience to a student with disabilities as is generally provided for students without disabilities... To the contrary, states must address the unique needs of a child with disabilities, recognizing that the student may benefit differently from education in the regular classroom than other students... In short, the fact that a child with disabilties will learn differently from his or her education within the regular classroom does not justify exclusion from that enfironment." Oberti v. Board of Education of the Borough of Clementon School District (3rd Cir. 1993).

If an entirely different curriculum is needed for the child's alternate goals, it needs to be determined if appropriate special education supports (for both the child and teacher) can be most appropriately provided within the context of the general education classroom. It is not the intent to have the general education teacher devote all or most of his/her time to the child with a disability nor to modify the general education curriculum beyond recognition.

Not Participating in Extended School Year Services

What if the IEP team determines that a student is eligible for ESY services and the parent indicates the student will not be participating due to other summer commitments? According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if ESY is in the child's IEP and the parent refuses the services, then the school district should consider whether a truancy report is in order, or if another IEP meeting should be held. School districts should anticipate far enough in advance so that parents can be informed and plan activities around these service times.

If The Child Is Not Placed In A General Education Classroom, Does The District Have Any Other LRE Responsibilities?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, even if the child is not placed in a general education classroom, the school district must still find ways for the child to be with children without disabilities in noneducational and extracurricular activites as much as is appropriate to the child's needs. Where the district suggests a placement other than a general education classroom, the Prior Written Notice form for informed written consent must list other placement ideas that were considered and the reasons they were rejected. Also, according to C.F.R. 300.320(a)(5), the IEP Team must document in the IEP the extent to which the child will not participate with nondisabled children in the regular class and in other school activities. The IEP Team may also address the potential for moving to a less restrictive environment in the future. The LRE for each child must be considered annually to determine whether the current placement is appropriate.

A District's Failure to Invite the Student's Private Preschool Teacher Amounts to Denial of FAPE

Case managers of students with disabilities need to be mindful when selecting appropriate members to invite to IEP team meetings. In S.B. v. Pomona Unified School District, 50 IDELR 72, 2008 (WL 1766953), an LEAs failure to include the student's private preschool teacher, in this case the regular education teacher, was a procedural violation that resulted in a loss of educational opportunity for the child. In her presentation at the 19th Annual Counsel For Administrators in Special Education, Julie Weatherly expanded on this case in a handout. "Had the teacher been at the important IEP meeting, she could have shared her observations of the student's abilities and special needs from the year that the student was in her classroom. A preponderance of evidence shows that the teacher's participation at the November 2004 IEP meeting, as mandated by the IDEA, 'would have assisted the IEP team in devising a program that was better tailored to the Student's abilities and special needs.' Accordingly, the District's procedural violation of IDEA resulted in Student's loss of an educational opportunity and his denial of FAPE."

Do Special Education and Related Services Missed Due to Events Beyond the Control of the School Have to be Made Up at a Later Date?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the IEP team must consider the services needed for the child to address IEP goals, acess the general curriculum, and participate in extracurricular and nonacademic activities with children without disabilities. In this context, the team should also discuss what is to be done when services are missed due to school closure, mandatory emergency drills, or absences of the child. For example, if a child with a learning disability needs help taking tests, that service isn't needed if the school is closed. However, if regular, ongoing physical therapy is needed to maintain mobility, the team must find a way for the services to be provided if school is closed.

Another consideration for the IEP team is whether a number of missed services would constitute a denial of FAPE. Again, the team would create a plan for those circumstances.

Should Students With Disabilities Begin Receiving Services the First Day of School?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, it depends on the frequency, location, and duration of services documented in the child's IEP. The IEP team must make an individual determination regarding when special education and related services will begin an end for each child. Some services may not be provided to the child until the 2nd quarter or second semester of the school year. Some children with disabilities may benefit from having the first week of school in general education in order to acclimate to new general education teachers, classrooms, expectations, and routines. Other children, such as children with autism, may need services beginning the very first day of school. Decisions regarding when special education and related serices will begin for a new school year are not to be based on the convenience of school staff, but the individual needs of each child. If the IEP is silent regarding provision of services during the first and last weeks of a school year, parents often presume services will be provided during that time. The IEP is to indicate when services begin and the frequency, location and duration of the services. This is to be clear to the parents and providers.

First Day of School

Yesterday I had the privilege of visiting West-Oak Middle School, Westminster Elementary School, Orchard Park Elementary, West-Oak High School, Fair-Oak Elementary, and Oakway Intermediate. I am continually amazed at the cleanliness of our facilities. I could practically see my reflection on the floors at WOMS. If you feel moved, please take a minute to thank your custodians for the wonderful job they are doing. I believe Oconee County has the finest facilities in the state.

If you are an SDOC teacher and I did not get a chance to see you yesterday, please know I will do my best to spend more time in classrooms this year. During my observations last year, I witnessed creativity and innovation and was able to share some great ideas on my blog. I intend to do the same this year as well. I will also continue to do IEP meeting walk-throughs as my GBE. If I plan to attend one of your meetings, I will email or call early that morning to let you know. Please know this is not an "I gotcha" measure. It is a way for me to leave positive written feedback, to offer suggestions to make your life easier, and to get to know all of you and your needs. I wish each and every one of you the best year yet in education. You are respected, valued, and appreciated more than you know. I look forward to working with all our SDOC special education teachers and support staff as we strive to meet our vision...helping each student succeed with appropriate support.

Take care,

Marge