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.

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.