May A Student With A Disability Be Suspended From The Bus?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". Children with disabilities may be suspended from using public school transportation even though they are not suspended from school. However, bus suspension may affect the LEA's requirement to provide FAPE. If special education services are needed for the child to receive a FAPE and the child needs transportation to receive special education services, transportation would be needed and must be addressed by the IEP team. The following guidance to LEAs to determine if school days for bus suspension count as school days for change of placement and provision of services may be useful:

• The LEA is always required to provide a FAPE. If a child with a disability can not get to school to benefit from special education services, it is likely that the school is required to continue to provide transportation in some manner.
• If transportation is specified as a realted service on the IEP, school days of suspension from bus transportation would count in determining if a change of placement occurs and in the provision of services unless the LEA provides transportation some other way.
• If transportation is NOT required as a related service under the IEP, school days of suspension from the bus should NOT count as school days of suspension for change of placement and provision of services. In such cases, the child's parents have the same obligation to get the child to and from school as a child without disabilities who has been suspended from the bus (unless the parents can not provide the needed transportation). Also, if bus transportation is not included on the IEP, the comments to the regulations suggest a suspension from transportation privilieges may indicate the IEP team should consider whether that behavior on the bus should be addressed within the IEP or a BIP for the child. (Federal Register, August 14, 2006, p. 46715).

Does In-school Suspension Count As A Day Of Suspension Toward The 11th Day Rule?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, whether school days of in-school suspension count as school days of suspension for determining if a change of placement has occurred, depends on the nature of the in-school suspension environment. Many schools already use in-school suspension for code of conduct violations. Because children frequently are unsupervised and undirected by school personnel if placed on out-of-school suspension, many LEAs prefer to use in-school suspension, at least for first-time offenders or less serious offenses. Comments following the federal regulation indicate that LEAs have authority to utilize in-school suspension as a disciplinary tool (Federal Register, August 14, 2006, p. 46715).

Additionally, a school day of in-school suspension should not count as a school day of suspension for services or change of placement purposes if, during the in-school suspension, the child is afforded an opportunity to:

• Continue to appropriately progress in the general curriculum;
• Continue to receive the services specified on his or her IEP; and
• Continue to participate with children without disabilities to the extent they would have in their current placement

The assumption is that LEAs may use in-school suspension for children with disabilities just as they would for children without disabilities. The issue is really whether the school day(s) count toward accumulating the 11th school day of suspension which would require the beginning of educational services or toward the 10 consecutive school days for change of placement or provision of services. The comments to the regulations indicate that for children with disabilities, if the in-school suspension approximates the current placement in the areas outlined above, it does not cont toward the 10 school days needed for a change of placement or provision of services. On the other hand, if in-school suspension is a place where children are held without opportunities to progress in the general curriculum, receive IEP services, and participate with children without disabilities to the same extent they would have in the current placement, the days do count as school days of suspension for chage of placement and provision of service purposes.

Must An LEA Conduct A Re-evaluation To Determine Post-School Program Eligibility?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, when a student with a disability is graduating and exiting from special education services LEAs are not required to conduct a reevaluation for a child to meet the entrance or eligibility requirements of a post-school institution or agency. Doing so would impose a significant cost on the LEA that is not required by the law (Federal Register, August 14, 2006, p. 46644). However, LEAs are required to provide a Summary of Performance.

Once A Child Has Been Dismissed From Special Education Services, Must The LEA Complete An Initial Evaluation Upon Another Referral For An Evaluation?

According to South Carolina's Office of Exceptional Children Policies and Procedures

released April 6, 2009, once a child has been dismissed, any subsequent evaluation would be an initial evaluation. The evaluation must include a review of existing data. If the team determines the current available data are adequate for the purposes of eligiblity determination, there do not need to be any further assessments conducted.

Discipline of Students with Disabilities: Essential Point #5

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 fifth essential point...
For purposes of discipline of a student with a disability, a "change of placement" includes any removal for more than 10 consecutive school days. Following up on essential point #4 (see blog entry dated 9-16-09), it is important to understand what constitutes a "change of placement" for purposes of ensuring that a legally-compliant discipline process is followed when disciplining a student with a disability. The IDEA regulations provide that, for purposes of removals of a child with a disability from the child's current educational placement, a change of placement occurs if the removal is for more than 10 consecutive school days. 34 C.F.R. section 300.536(a)(1). This does not mean that a student with a disability can not be removed for disciplinary purposes for more than 10 consecutive school days, however. Rather, it means that should such a "change of placement" occur, school personnel must follow applicable "change of placement" procedures via the IEP team process.

May Staff Discuss Information Related to a Child's Instruction Without the Parents?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". The comments to the federal regulations clarify that a meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the child's IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

What Does The School Do To Document Reasonable Measures Were Taken to Obtain Consent, If Parents Do Not Respond To The Request To Reevaluate?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, if the parent does not respond the school must keep detailed records of its attempts to obtain parental consent including written correspondence sent to the parents, phone calls made or attempted and visits made to the parent's home or place of employment, and the response, if any, from the parent. Repeated measures might include two attempts, using at least two different methods. If the school is not successful after repeated reasonable measures, then the school may continue with the reevaluation procedures. (34 C.F.R. Section 300.303(d)(5); 34 C.F.R. Section 300(d)).

Discipline of Students With Disabilities: Essential Point #4

In the May-June 2009 issue of In Case (Council for Administrators of 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 fourth essential point...

"Before a disciplinary removal of a student with a disability is recommended, ask and answer the following question: 'Is the removal that is currently contemplated going to constitute a change of placment' for this student?' Appropriate disciplinary procedures applicable to students with disabilities are best understood by considering, as an initial matter, whether a contemplated disciplinary removal will amount to a 'change of placement.' Of course, 'placement' is generally defined by the student's IEP and the educational and related services set forth in it. If those services are changed or removed via a disciplinary removal, a potential 'change of placement' has occurred and certain procedures must be followed to ensure that the 'change of placement' is made in accordance with the law. Thus, determining whether a particular disciplinary removal will constitute a 'change in placement' for a student with a disability is essential for then determining what process needs to be followed in order to ensure legal compliance."

Discipline of Students With Disabilities: Essential Point #3

In the May-June 2009 issue of In Case (Council for Administrators of 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 third essential point...


"Students identified as disabled only under the provisions of Section 504 are afforded protections in discipline much like the protections afforded to students covered under IDEA. Essentially, the bulk of the rules for disciplining students with disabilities have their 'roots' in Section 504. This is because Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability. Thus, in terms of discipline, the general notion is that students with disabilitites should not be deprived of educational services if the conduct for which they are being disciplined in is 'based upon' (a/k/a 'a manifestation of') their disabilitites. For the most part, the Office of Civil Rights (OCR) applies the same rules of discipline for students under Section 504 that exist for those students who are also disabled under the IDEA, particularly the requirement for making manifestation determinations when required."

Discipline of Students With Disabilities: Essential Point #2

In the May-June 2009 issue of In Case (Council for Administrators of 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 second essential point...

"All students, disabled or not, are entitled to a level of 'due process' before they can be removed from public school for any period of time for disciplinary reasons. In 1975, the Supreme Court decided the case of Goss v. Lopez, which did not address entitlements to students with disabilities but addressed discipline generally. The Goss Court held that where a public school student is suspended from school for ten days or less a certain level of "due process" should be afforded, which includes oral or written notice of the charges against the student and a chance to present his/her side of the story. For exclusions for more than 10 days, a formal level of process is due, including an opportunity for a hearing with the right to confront and cross-examine witnesses and secure counsel. Should it be determined that a student with a disability will be suspended, it is important that these minimal rights are properly incorporated into the suspension process for that student as they are for a nondisabled student."

Discipline of Students With Disabiltities: Essential Point #1

In the May-June 2009 issue of In Case (Council for Administrators of 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 first essential point...

"That's right, It's not 'fair'. It is well-settled that discipline is different for students who have been identified as disabled. Although Congress has attempted over the years to provide more flexibility with respect to disciplining students with disabilitites, appliable laws continue to provide significant protections for studnets with disabilitites that do not exist for students who are not disabiled. While it may not seem "fair", it is important to understand that the law simply sets forth a different disciplinary scheme for disabled students as compared to that for nondisabled students and that the law must be followed until it is changed."

What Does the LEA do if Parents Refuse Consent for a Reevaluation?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the LEA must try to obtain consent from the parents. The LEA may, but is not required to seek to mediate the dispute or request a due process hearing to pursue the reevaluation. The LEA would not violate the requirement to conduct a reevaluation if it declines to pursue the reevaluation when the parent refuses to provide consent. The school would continue to serve the child according to the IEP.

Letter to Christiansen, 48 IDELR 161 (OSEP 2007)

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a letter written by the Office of Special Education Programs addressing Functional Behavior Assessments (FBA). She summarized, "If an FBA is being conducted for the purpose of determining whether the positive behavioral interventions and supports set out in the current IEP for a particular child with a disabilitiy would be effective in enabling the child to make progress toward the child's IEP goals/objectives, or to determine whether the behavioral component of the child's IEP would need to be revised, OSEP believes that the FBA would be a reevaluation. However, if the FBA is intended to assess the effectiveness of behavioral interventions in the school as a whole, parental consent would generally not be applicable to such an FBA because it would not be focused on the educational and behavioral needs of an individual child." In the first situation, parental consent is needed.

Is Moving A Child From a Regular Bus to a Special Education Bus a Change of Placement?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes" since a special education bus is a more restrictive setting than a regular education bus (34 C.F.R. Section 300.107). Nonacademic services include transportation as a service; therefore, the IEP team would need to ensure a child with disabilities participates with children without disabilities in the extracurricular services and activities to the maximum extent appropriate to the needs of that child (34 C.F.R. Section 300.117). If the change is made, the IEP team would need to provide PWN.

Is Parent Consent Required When Moving a Child From Placement in a Neighboring LEA Back To The Home LEA?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "no" if the placement in both LEAs is the same place on the continuum and the child has the same opportunity to participate with peers without disabilities. If the IEP specifies a certain classroom in a certain school, then consent would be required. Placement is not determined by the name of the building , rather it is the place on the continuum of service environments. For example, if the IEP reads "services will be provided in Mrs. Jones' 4th grade class at Eisenhower Elementary School," then parent permission would be needed to move the student from Mrs. Jones' classroom. However, if the IEP reads "services will be provided in a regular 4th grade classroom," then parent permission would not be needed, if everything else stayed the same. Placement is not the same as location.

Does LRE Apply to Preschool?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". Least Restrictive Environments apply to children who are ages 3 through 5. Some settings for LRE for preschool to serve children where they would be if not disabled include:

• Public school preschools
• Community preschool
• Head Start
• Child care
• Play groups
• Kindergarten for 5-year-olds

A Visit to Seneca High School

Yesterday I had the privilege of vising our Seneca High School special education classrooms. I observed a resource teacher conducting an English Language Arts lesson in a tutorial lab. She used effective questioning techniques to help her students learn and understand the proper use of abbreviations. The pace of the class was quick and all students were engaged and participating. The teacher was about to participate in a lesson herself as our District Stategic Instruction Model Coach was there prepared to demonstrate a lesson to the teacher using the SIMS. In another classroom a resource teacher was also teaching English Language Arts. She lead a discussion on a book called "Buddy" about a teen who experienced many troubles at school and at home. She was able to pull each student into the discussion and used effective questioning techniques to assess understanding. In another classroom, the teacher demonstrated mastery of content as has he assisted students individually on their assignments. He was able to explain fractions and gerunds at a level his students could understand. It was obvious his students respected him and wanted to do their best. Seneca High Special Educators are making a difference!!!

Letter to Sarzynski, 49 IDELR 228 (OSEP 2007).

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a letter written by the Office of Special Education Programs addressing parental consent. "As to whether evaluations of student progress are "evaluations" requiring consent, OSEP responds that evaluations of student progress occur as a regular part of instruction for all students in all schools. If such evaluations are designed to assess whether the child has mastered the information in, for example, chapter 10 of the scoial studies text, and are the same or similar to such evaluations for all children studying chapter 10, parental consent would not be required for such an evaluation. If, however, the evaluation specific to an individual child is "crucial to determining a child's continuing eligibility for services or changes in those services," such evaluations would require parental consent.

C.H. v. The Cape Henlopen School District, 50 IDELR 217 (D. Del. 2008)

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a situation whereby an LEA failed to have an IEP in place by the first day of the beginning of the school year. The court determined this was at least in part the fault of the student's mother. If the IEP Team and the student's mother had met on September 11, an IEP would have been in place less than one week after school had started. "While the court does not recommend having a disabled child atttend school without an IEP, it finds the week delay to be a minor procedural error. Consequently, the absence of an IEP on the first day of school does not equate to a denial of FAPE."

What Responsibility Does The General Education Staff Have In Serving Children In The Least Restrictive Environment?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, both general and special educators are required to be members of the IEP Teams who make decisions about services needed by eligible children and where they should be provided. This is a mutual responsibility for general and special education staff. The IEP Team is required to consider the supplementary aids and services needed for a child to be successfully educated in the general education classroom. Some examples are:

• Aide to assist the child
• Classroom environmental accommodations
• Adaptive equipment
• Adpated/modified/enriched curriculum
• Co-teaching staff
• Classroom tests modified or accommodated
• Assistive Technology
• Training or Supports for the Teacher

These strategies can be used in any class, including classes like phyical education, art, music, and vocational education. Teacher-made tests can include any accommodatins the child needs: with regard to state and district-wide assessments, however, IEP teams should be careful to avoid specifying accommodations that would invalidate the tests.

The IEP Team must include at one of the child's general education teachers, if the child is or may be participaing in general education classes. The general education teacher must, as much as is appropriate, help develop the IEP. This includes helping to decide things like appropriate positive behavioral interventions and strategies, supplementary aids and services, program modifications, and support for school staff in providing the supplementary aids and services and program modificatipns. After the initial IEP has been developed, the general education teacher must also help review and revise the IEP. The IEP Team must also have a school person who is knowledgeable about the general curriculum and what resources are available in the district. The school is responsible for providing the services on the IEP. That means both special and general education teachers must assist in determing the services and ensuring that appropriate services are provided.