In South Carolina, Must IEPs Include Measurable Post-Secondary Goals Based on Age Appropriate Transition Assessments For Every 13-year-old Student?

Yes. All means all. Under 34 CFR Section 300.320(b), the IEP for each child with a disability, must, beginning not later than the first IEP to be in effect when the child turns 16 (in South Carolina beginning not later than the first IEP to be in effect when the child turns 13), or younger if determined appropriate by the IEP team, and updated annually thereafter, include:

1) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and,

2) the transition services (including courses of study) needed to assist the child in reaching those goals.

Furthermore, postsecondary goals cannot use terms like "hopes to" or "aspires to" or "plans to". They must clearly state what the child "will do" upon graduation. Postsecondary goals must be updated regulary as career interests are likely to change over time.

LEAs Must Address the Issue of Extended School Year Services (ESY)

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "Although many federal courts had recognized entitlement for some students to extended year services prior to 1999, not all of them had done so. However, IDEA regulations specifically provide for the annual consideration of the provisions of ESY services for every student with a disability. Under the regulations, each public agency must ensure that ESY is available as necessary to provide FAPE and that they are provided if a student's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the student." School personnel must gather and maintain appropriate documentation supporting the recommendation for ESY services.

Teams Shouldn't Be Overly Specific and Include Unnecessary Details or "Promises" in IEPs

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, "Although IEPs are required to contain educational goals and objectives, it is not expected that they be so detailed as to substitute for a daily lesson plan. Under IDEA, parents are not entitled to demand that items such as the specific teacher, the teacher's day-to-day schedule, curriculum, methodology or specific school site be included in the IEP. In addition, things like extracurricular and nonacademic activites should not be listed specifically on the IEP. Rather, any accommodations or support servies necessary for an otherwise qualified student to participate in a particular activity should be indicated on the IEP. School staff should be trained to respond that, though such things are worthy of discussion and clarification during an IEP meeting, none of these things are required to be directly written into the IEP."

What if a Child Who Has Exited From Special Education Services is Referred Again?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, an initial evaluation would be conducted to reestablish whether the child is a child with a disability who has a need for special education and related services, thus making the child eligible once again for special education services. The school would provide Prior Written Notice and request consent from the parents or adult student before beginning the evaluation. The evaluation must include a review of existing data. If the team determines the current available data are adequate for the purposes of eligibility determination, there do not need to be any further assessments conducted.

May a Student Participate in Graduation Exercises With His or Her Classmates, if She or He is Not Actually Graduating?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". The student may participate in graduation exercises unless a local policy would not allow it. However, if there is such a policy, it must apply to all students and not just students receiving special education services. This would apply even if a student has met all of the requirements for graduation, but the IEP team determines that additional services are needed. Some students may require services until age 21 to meet IEP goals, which should be addressed within the student's transition plan. In either ase, the student could participate in graduation exerceses with his or her class, but not actually receive a diploma at that time.

What is Required When a Student with a Disability Graduates from High School?

According to South Carolina's Office of Exeptional Children Policies and Procedures released April 6, 2009, the LEA must provide the student, if age 18 or older, and the parents with a Prior Written Notice that clearly states that the student will no longer be entitled to receive special education services from the LEA after graduation. Informed parent consent is not required. Additionally, the school must provide the student with a Summary of Performance.

What if the Student No Longer Requires Special Education?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, th IEP team must determine whether the student no longer requires special education services based on data from a reevaluation. If, after a reevaluation, the team determines that the student is no longer eligible for special education services it must give parents Prior Written Notice of that determination and that the team is proposing to end services. If the parent disagrees with the decision, the parent may access medication or due process. The IEP team may also determine that the student qualifies as a student with a disability under Section 504 and refer the student to the Section 504 team, which would write a 504 plan for him or her.

Must a General Education Teacher in the Private School Participate in Developing, Reviewing, and Revising a Child's IEP or Serives Plan?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, a meeting to develop, review, and revise an IEP or a services plan must include all of the participants required for an IEP team meeting, including at least one general education teacher of the child (if the child is or may be participating in the general education environment). The general education teacher in the private school would meet the requirement for a general education teacher.

The LEA must also ensure that a representative of the private school attends each meeting to develop or revise a child's services plan. If the representative can not attend, the LEA must use other methods to assure a representative's participation, including individual or conference telephone calls. The participation of the child's private school teacher could meet this requirement.

Are Children Enrolled in or Placed in Private Schools Required to Take the District-Wide and State Assessments?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if a child is placed in a private school by the LEA or public agency, the child is required to take the appropriate district-wide and state assessments. If the child has been enrolled in the private school by the parents, the child would follow the requirements of the private school. That may mean that he or she would not take the district-wide or state assessment if the private school was not in the South Carolina State Assessment system.

Is A Parentally-Placed Child With An IEP In A Private School Entitled To Both General Education And Special Education Services From The LEA?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "no". LEAs are required to provide special education and related services, but not to provide classes in the general curriculum for the private school child at the LEA. For example, if parents request that in addition to receiving physical therapy at the LEA, their child also be alowed to take physics, the LEA is not obligated to allow the child to take physics. Instead, the child would be required to enroll in the LEA as a full-time student in order to receive general educaiton services.

Who Is Responsible For The IEPs Of Children With Disabilities Who Are Placed In Private Schools By A LEA IEP Team?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, before placing a child with a disability in a private school or facility, the LEA must conduct a meeting and develop an IEP. The IEP team may place a child in a private school as the result of the initial IEP meeting or as the result of a meeting to review an existing IEP. However, at the meeting in which a child is placed in a private school, the LEA must ensure that a representative of the private school is present at the meeting or participates in the meeting through other means, such as individual or conference telephone call. After the initial IEP meeting, subsequesnt meetings to review the IEP may be conducted by the private school. A representative of the LEA must attend these subsequent IEP meetings. Although the services are proveded at the private school, the LEA remains responsible for asssuring that the IEP is implemented.

Discipline of Students with Disabilities: Essential Point #6

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the sixth essential point...

For purposes of discipline of a student with a disability, a 'change of placement' may also include short-term removals for more than 10 days cumulatively in a school year, depending upon the pattern of removals.
"In addition to defning a 'change of placement' to include disciplinary removals for more than 10 consecutive school days, the IDEA regulations define a 'change of placement' in terms of cumulative days of suspension as folows: For purposes of removals of a child with a disability from the child's current educational placement, a change of placement occurs if the child has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 34 C.F.R. Section 300.536(2).
Using the above standard, the IDEA provides that an administrator and the student's special education teacher, at a minimum, are required to determine whether a pattern of removals that cumulate to more than 10 days in a school year constitutes a 'change of placement.' So, based upon the somewhat confusing language of the IDEA regulations, how is that done and when is it clear that a pattern of short-term removals is or is not a 'change of placement?' Unfortunately, the '10-day cumulative' language is not clear with respect to exactly which removls for more than 10 school days in a school year are a 'change of placement' and which ones are not. For that reason, it has been common practice for school districts to treat any removal beyond 10 days in a school year as a 'change of placement' and follow the applicable procedures for such a 'change of placement' to ensure that a removal is appropriate and will not be legally challenged. In addition, suspensions for more than 10 days in a school year are considered significant by the U.S. Department of Education in its monitoring process and , for that reason, is significant to State Educational Agencies when they are monitoring suspension numbers maintained by Local Education Agencies. While the law does not prohibit disciplinary removal of student with disabilities for more than 10 days in a school yfear, school districts must proceed with caution to ensure that a 'change of placement' has not occured when it has subjected a student with a disability to short-term suspensions totaling more than 10 days in a school year."

A Visit to Blue Ridge Elementary School

Yesterday I had the privilege of visiting several special education classrooms at Blue Ridge Elementary School. In the resource class, the teacher helped a new student feel welcome as she made introductions before getting to work. She explained to the group where they left off from on Friday and set the stage for expectations. She used effective questioning techniques to provide just the right amount of scaffolding during the lesson. All students were engaged every second and participated eagerly. Next, I visited the Preschool Intervention Program. The children moved from center to center based on interest. The teacher and aides fostered apppropriate socialization skills and provided a model when needed. Some children were encouraged to particpate in a small groups with an aide to work on vocabulary and colors. It was evident each child was cared for unconditionally. The next classroom I visited was a self-contained classroom for early elementary students. The teacher was highly organized and demonstrated mastery of differentiated instruction. Each student participated in an activity that was just right for their developmental level. The teacher had no less than 8 distinct areas for independent work. She worked individually with students targeting specific goals while an aide monitored the other students in their work areas. The activities were engaging and all students were interested in the activity that was planned just for them. Finally, the last classroom I visited was an upper elementary self-contained classroom. The students in this class portrayed a wide range of ability levels and the teacher demonstrated an understanding of each student's individual needs. This teacher was particularly strong in the area of effective classroom management skills and used a Smartboard to lead a whole group lesson allowing students to interact with technology and have fun while learning. I thoroughly enjoyed my visit to Blue Ridge Elementary. It is a beautiful school inhabited by folks dedicated to educating children.

Are Children Who Are Voluntarily Placed By Their Parents In Private Schools Or Homeschooled Entitled To Special Education Services in South Carolina?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the IDEA is clear that children enrolled in a private schol by their parents or homeschooled have no individual entitlement to special education and related servies. If children are part of a group agreed upon to receive services, they may receive the services offered by the LEA under a services plan, but there is no requirement for any particular child to receive any services.

What Qualifications Must The Staff Meet That Provide Special Education Services When The LEA Serves A Parentally-Placed Child In A Private School?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the special education services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing such services in LEAs. The LEA may use state and federal funds to make personnel available at the private school to the extent necessary to provide special education and related services to children enrolled by their parents in provate schools, if those services are not normally provided by the private schools. The LEA may use special education funds to pay for the services of an employee of a private school to provide special education and related services for children if both of the following conditions are met:

1. The employee performs the services outside of the employees's regular work hours
2. The employee meets the definition of a highly qualified teacher under SCDE regulations; and the employee performs the services under public supervision and control.
   
   

If A Child With A Disability Is Sent Home For Part Of A Day Is It Considered A Suspension?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes" if the suspension is at least 50% of the school day. Furthermore, if a child with a disability has a behavior intervention plan that calls for a removal from school and educational services are not provided during the removal, these days would be counted toward a long term suspension as well. Finally, if the school has a school-wide behavior plan for all students and a child with a disability reaches the pont where he or she is suspended, the team must consider all behaviors that led to the suspension during a manifestation determination.

With Regard To Manifestation Determination, What Is Meant By Conduct That Has A "Direct and Substantial" Relationship To A Student's Disability?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, one way that a student's behavior is determined to be a manifestation of the student's disability is when relevant members of the student's IEP team determine that the behavior in question was caused by, or had a "direct and substantial" relationship to the child's disability. The phrase "direct and substantial" has not been specifially defined. The only guidance to what is meant by the phrase "direct and substantial" is a statement in the comments to the federal regulations indicating that a behavior should not be determined to be a manifestation of a student's disability if the relationship of that behavior to the child's disability was merely "an attenuated association, such as low self-esteem." (Federal Register, August 14, 2006, pg. 46,720.)
With so little guidance regarding this question, it is useful to examine the plain meaning of the words themselves. Webster's dictionary defines the term "direct," as the term appears to be used in the context of a manifestation determination, as "proceeding in a stratight line or by the shortest course; straight; not oblique; proceeding in an unbroken line of descent." The term "substantial" is defined as "of ample or considerable amount, quantity, size, etc." See Webster's College Dictionary, Random House (Second Edition 1999). Accordingly, to have both a direct and substantial relationship to a student's disability, the student's behavior must be linked straight to the student's disability without the necessity of examining outside influences or effects and the link of the behavior to the disability must be one of ample or considerable proportion. This is a subjective standard and reasonable minds on the team may disagree. When that happens, the school representative on the team must make the final decision. A parent has a right to challenge the decision of a manifestation team through an expedited due process hearing.

Which Days Count?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if a child without a disability has been disciplined, and during the disciplinary period the child was evaluated and found to be eligible for special education services, the days prior to eligibility in the current suspension would not count toward the child's 10 days. However all suspension days count towards the child's maximum of 30 total as reflected in state laws (S.C. Code Ann. Section 59-63-2004).

May A Child Be Placed In An Interim Alternative Education Setting More Than One Time Each School Year?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes"; however, an LEA can not order a second IAES for the same incident of behavior. A child could be placed in a short term IAES several times if the removals are not more than 10 consecutive days or if they do not constitute a change in placement. If a child brings a gun to school, the school officials could impose one 45 school day IAES, and if the school believes returning the child to his placement specified in the chiild's IEP at the end of the 45 school day period is substantially likely to result in injury to the child or others, the LEA could ask a special education due process hearing officer to order an additional 45 school days in the IAES placement.

Who Determines The Interim Alternative Education Setting?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009,

it depends on the behavior and the situation in which the determination is being made. The LEA can determine the IAES for a short-term removal for 10 consecutive school days or less, or for a short-term removal of more than 10 days that does not constitute a change in placement. When the child is being removed for more than 10 school days and the behavior is not a manifestation of the child's disability, the IEP team will determine the IAES.

For behavior relating to drugs, weapons, or serious bodily injury the decision regarding IF a student is ordered to an IAES is made by designated school officials. However, the decision of WHERE that setting will be is made by the child's IEP team. For behavior substantially likely to result in injury to the child or others, the decision regarding an appropriate IAES is made by a special education due process hearing officer (34 C.F.R. Section 300.532(b)(2)(ii)).

Do The Discipline Provisions Of IDEA 2004 Extend To Children Who Are In The Process Of Being Identified As Eligible For Special Education Services?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". Federal regulations for the IDEA 2004 state that if a school had knowledge that the child is a child with a disability, the child is covered under these provisions. An LEA is deemed to have knowledge if a teacher or other personnel have expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education or to other supervisory personnel or if the parent of the child requested an evaluation. Records from the general education intervention provide documentation that if there was a suspected disability at some time in the past, the school made the determination whether or not the child should be referred for an initial evaluaion to determine eligibility. Therefore, it is important for schools to maintain records on children as such data could be important should a disciplinary proceeding occur later.