IDEA: Special Education Law and Catholic School Students Dale McDonald, PBVM, PhD NCEA Director of Public Policy mcdonald@ncea.org http://www.ncea.org/publicpolicy July 17, 2015
Presentation Topics Historical context of IDEA: civil rights and special education laws Difference between 504 and IDEA Concepts in IDEA 2004 law and regulations Tips for maximizing equitable participation Q & As
IDEA Implementation Problems State laws and regulations are confused with IDEA LEAS not informed/supportive of private school participation regulations Private school representatives not sufficiently informed of IDEA processes Confusion about past and present IDEA requirements
Historical background of IDEA - - rooted in civil rights legislation Rehabilitation Act of 1973: Section 504 Civil rights law prohibiting discrimination in employment and access to federally funded programs and services 1990 American With Disabilities Act (ADA) Title II Expands 504 to state/local governments and private sector entities operating as public accommodations regardless of funding sources Title III addresses the physical architecture of the facility and accessibility for persons with disabilities ADA Non-Discrimination Language: No otherwise qualified handicapped person shall solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds
Disability Status Student has physical or mental impairment which substantially limits one or more major life activities; has a record of such impairment or is regarded as having such impairment Physical or mental impairment: broadly defined to include any limiting disorder Physiological disorders, illness or injury, chronic conditions or communicable diseases, addictions (if limit learning) Mental: psychological or organic mental disorders and emotional problems Major life activities: breathing caring for oneself performing manual tasks, walking, seeing, hearing working learning
Catholic Schools: ADA & 504 Compliance ADA: requires reasonable accommodations that would not cause undue burden or fundamentally alter the program 504: requires minor adjustments Terminology: accommodations and modifications 504 applies to students in schools receiving federal funds 504 Plans: responsibility of agency receiving federal funds Private Schools do not write a 504; develop own accommodations plans Private school admissions: distinguish between refusal to accept because of disability and inability to perform with accommodations
504 Plans and IEPs 504 plan modifies a student's regular education program in a regular classroom setting. A 504 plan is monitored by classroom teachers. A student with an IEP receives different educational services in a special educational setting. IEP programs are delivered and monitored by additional school support staff. Development of Private School Accommodations Plan model after 504 List the specific accommodations, supports or services that will be provided and who will provide them Name the person responsible for ensuring the plan is implemented Distribute to all of the child s teachers, specialists, and support staff Place in the child s school file.
Student Report Cards &Transcripts ADA and 504 prohibit unnecessary disclosure of disability status to a third party Report cards: information given to the parent about student progress may include indication of modified or alternative curriculum or accommodations received Transcripts (permanent record cards) provides information about student s academic credentials and achievements to third parties Cannot indicated that the student has a disability or is in a program for students with disabilities Cannot indicate that a student received accommodations Can indicate that a student took classes with a modified/alternative curriculum Can indicate receipt of a certificate of attendance or alternate diploma if it does not disclose disability status
Historical background of IDEA 1975 Education of the Handicapped Act Least restrictive environment FAPE IEP Eventually became IDEA legislation; reauthorized several times
IDEA 2004 Current Legislation and Regulations The Law: Public Law 108-446: The Individuals With Disabilities Education Improvement Act of 2004, Part B (Enacted December 3, 2004) The Regulations: IDEA 2004 Part B Regulations: 34 CFR Parts 300 301 Published in the Federal Register, Aug. 14, 2006 Q&A Guidance Document: (Revised April 2011) US Department of Education answers to specific questions about services for parentally placed students in private schools. Links to all of these documents may be found on the NCEA website at http://www.ncea.org/public/ideaspecialeducation.asp
IDEA Federal Regulations
IDEA: Concepts in the current law FAPE Parentally-placed students Equitable participation Consultation Child find Referral of students Proportional share of IDEA funds Evaluations IEP/Services Plan Provision of services Transportation Record keeping Compliance/complaints Due process
FAPE: free appropriate public education Law defines FAPE as an education that is: provided at public expense under public supervision and direction without charge In conformity with the individualized education program required under IDEA Interpretation: U.S. Department of Education, Office of Special Education Programs (OSEP) has determined that public education means under public school control
Parentally-Placed Students Students whose parents choose a non-public school educational setting for their children are not entitled to FAPE Students placed by public authorities in a private school retain entitlement to FAPE and full legal rights
Equitable Participation of Parentally Placed Students Parentally placed students are to be provided the opportunity for equitable participation in special education and related services Individual students do not have an entitlement to special services Private school students classified as having a disability generate a portion of the IDEA federal funds that flow to a state/district; these funds must be spent on private school students as an "entity"
Consultation Requirements To ensure timely and meaningful consultation, the LEA must consult with appropriate private school representatives representatives of parents of parentally-placed children with disabilities Consultation must occur: during the design, development and implementation of special education and related services with representatives of the private school students to consider the following topics (slides 17-18)
Required Consultation Topics How parentally-placed private children suspected of having a disability can participate equitably How parents, teachers and private school officials will be informed of the process How the consultation process will be conducted throughout the year Who will be served and how and services will be apportioned if funds are insufficient to serve all parentally-placed children
Consultation Topics (cont.) How, where and by whom special education and related services will be provided and how students will be evaluated Types of services, including direct services and alternate service delivery mechanisms The actual the dollar amount of the proportionate share of IDEA funds including the determination of how the proportionate share of those funds was calculated How and when these decisions will be made
Written Affirmation of Consultation When timely and meaningful consultation has occurred as required, the LEA obtains a written affirmation signed by representatives of participating private schools. Private school officials should not sign the affirmation if they are not satisfied with the consultation process. Private school should document its concerns and reasons for not signing the affirmation. If private school officials do not provide the written affirmation within a reasonable period of time, the LEA shall forward documentation to the SEA.
Child Find Process Each LEA must locate, identify and evaluate all parentallyplaced private school children with disabilities in private, including religious, elementary and secondary schools located within the school district served by the LEA. The child find process must be designed to ensure equitable participation and an accurate count of eligible children.
Child Find For private school students, LEA must use activities that are comparable to those used for public school LEA cannot limit child find activities to specific types of disabilities Evaluation must be conducted in the same time-frame as that of public school students (generally 60 days from receiving parental consent for evaluation)
Child Find (cont) Expenditures for child find come from the administrative budget, not proportionate share Evaluation: should inform parents of student s needs and what FAPE would look like if they choose to transfer to public schools offer of FAPE not required if parents indicate no willingness to transfer
Preschool Children With Disabilities Age 3 through 5 parentally placed children are eligible if the private institution meets the definition of elementary school in the final IDEA Part B regulations. Elementary school is defined as a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under state law. The state s obligation to make FAPE available to eligible children with disabilities aged 3 through 5 is applicable.
Annual Count The regulations provide that each LEA must: consult with representatives of private school children to decide how to conduct the annual count of the number of those children ensure that the count is conducted on any date between October 1st and December 1st inclusive use the count data to determine the amount of IDEA funds to be earmarked for private school children in the next fiscal year
Proportionate share of IDEA funds Funding allocation based on number of students eligible for services Proportion of eligible private school students in relation to public school totals determines private school students share Proportion determines amount for private school pool Group opportunity to participate (not individual)
Expenditures of Funds The LEA where the private schools are located must expend: A proportionate share of the LEA s total sub-grant under 611(f) of IDEA on services for parentally-placed children aged 3-21 in accordance with the designated formula A proportionate share of the LEA s total sub-grant under 619(g) of IDEA for services for parentally-placed children aged 3-5 in accordance with a formula; children with disabilities aged 3-5 must be enrolled in a private school that meets the definition of elementary school in 300.13
Referral of Students Child with a disability means a child having mental retardation hearing impairment speech/language impairment, visual impairment serious emotional disturbance orthopedic impairment autism traumatic brain injury other health impairment specific learning disability multiple disabilities and who, by reason thereof, needs special education and related services.
Indicators of a Potential Learning Disability Child does not achieve adequately for his/her age or meet grade-level standards in the designated areas of: Oral expression Listening comprehension Written expression Basic reading skills Reading fluency skills Reading comprehension Mathematics calculation Mathematics problem solving when provided with appropriate learning experiences and instruction
Learning Disabilities Exclusions learning disabilities do not include learning problems that are primarily the result of: visual, hearing, or motor disabilities mental retardation emotional disturbance environmental, cultural, or economic disadvantage
Pre-Evaluation Screening/Intervention identify problems in the regular classroom identifying the source of the problems (student, teacher, curriculum, environment, etc. take steps to resolve the problems in the context of the regular classroom (RTI) scientifically-based strategies referral after other avenues explored and needs cannot be met by the regular education program. child may not be considered eligible for special ed if determining factor is LEP or lack of appropriate instruction in reading or math
Response to Intervention (RTI) RTI may not be used as the sole criteria for determining eligibility for SLD A state may not use one single measure or assessment cannot use only a severe discrepancy between intellectual ability and achievement --must use a variety of assessment tools and strategies In developing criteria for determining the existence of an SLD, a state agency may not develop criteria that would prevent a parent from requesting an evaluation at any time (34 CFR 300.300 allows a parent to request an evaluation at any time ). An LEA/SEA may not require an RTI process for parentally-placed students requesting an evaluation
Individualized Education Program (IEP) and Services Plan (SP) LEA must provide a services plan for a parentally-placed student who is to receive services; IEP for FAPE only SP describes only the services that will be provided; IEP describes the full range of services that child needs LEA must ensure that a private school representative attends or provides input during the development of the SP Due process rights for parents do not apply to services plans
Services Plans The SP describes the special education and related services that the LEA will provide to students, including location of the services, and any transportation necessary. Private schools should not include their own activities in the SP nor should they write 504 Plans these are legal documents that only the LEA is obligated to provide Students who transfer from a public school to a private school do not bring the IEP with them private school is not obligated to continue it IEP is the responsibility of the LEA that issued it and they may decide not to continue services at a private school
Location of Services Services may be on-site at the private school, including religiously-affiliated private schools, to the extent consistent with law. To the extent possible, LEAs are encouraged to provide services at the private school.
Transportation If services are not on the private school site, transportation must be provided if necessary for the child to benefit from or participate in the services provided under IDEA. LEAs are not required to transport children from home to the private school. The cost of transportation is taken from the private school share of funds
Provision of Services Types of Services: Direct: to the students with a disability Indirect: to teachers of students with disabilities Location of Services: May be on the premises of private, including religious, schools, to the extent consistent with law. Services and materials must be secular, neutral and non-ideological
Services Providers Providers may be: LEA personnel: public school employees Third-Party providers under contract to LEA: for profit companies or non-profit organizations private school personnel outside of regular hours of duty and under public control and supervision private school teachers providing the services do not have to meet the highly qualified special education teacher requirements
Disagreement With LEA over Provision of Services If the LEA disagrees with the views of the private school officials on the provision of services it must provide a written explanation to the private school officials of the reasons why it chose not to provide services directly or through a contract. LEA has the final say about the provision of services.
Record Keeping Each LEA must maintain and provide to the SEA data on the number of parentally-placed children who were: Evaluated Determined eligible Served NB: private school officials should also keep a record of the number referred as well as those evaluated, determined eligible and served.
Evaluations Diagnostic: determine eligibility status SP developed to inform parents what FAPE would look like if they transfer to public schools; not required if parents indicate no willingness to transfer Student performance : annual assessments of goals, achievement, etc. Re-evaluation of disability status: at least every 3 years, all students diagnosed, not just those served
Due Process For parentally-placed private school students: Due process applies only to child find complaints. Due process complaint procedures do not apply to concerns about the provision or quality of services provided.
Compliance and Complaints A private school official has the right to submit a complaint to the SEA that the LEA did not engage in meaningful and timely consultation did not give due consideration to the views of private school officials. In submitting a complaint, the private school official must cite reasons for considering the LEA in noncompliance with the applicable the Part B regulations. If a private school official is dissatisfied with the decision of the SEA, the official may submit a complaint to the US Secretary of Education by providing the information on noncompliance
Maximizing Participation of Parentally Placed Students Be proactive! Initiate the contact with the LEA; request inclusion in program planning and implementation -- don t wait for them to contact you Establish regular lines of communication with LEA Insist that consultation occurs before the LEA makes any decisions that affect the opportunities of eligible private school children to participate Inform the LEA of all students with a disability, even if students who have been diagnosed are not receiving services
Maximizing Participation Refer students to the LEA for evaluation and have accurate data available for the LEA Keep consultation focused on meeting the needs of the children the programs are to serve their needs not the convenience of the private school or LEA Document all of requests and concerns about services or the consultation processes Use appeals process when necessary
Know the Law and Regulations Administrators have the right to: ask questions about formulas and distribution of funds; these are public records request a third-party provider for services insist that the services focus on the needs of the students not the convenience of the LEA know how the students will be assessed and how the results of the assessment will be used to improve those services
Timeline for Federal Program Services Late fall of current year: Set up consultation timeline for following school year Early winter of current school year: LEA receives necessary data LEA mails intent to participate to all private schools Mid-winter of current school year: LEA discusses available funds LEA works with private school officials to design program Spring of current school year: LEA conducts all necessary actions, including order materials and informs participating schools of actions Program is ready to begin next fall
Further Information NCEA Public Policy Office http://www.ncea.org/public/ideaspecialeducation.asp Office of Non-Public Education Q & A Document http://www.ed.gov/policy/speced/guid/idea/faq-parent-placed.pdf Office of Non-Public Education (ONPE) www.ed.gov/about/offices/list/oii/nonpublic/index.html Office of Special Education Programs (OSEP) www.ed.gov/about/offices/list/osers/osep/index.html IDEA Regulations for Parentally Placed Students http://idea.edu.gov/download/finalregulations.pdf