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Staying in Compliance with Special Education

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Staying in Compliance with Special Education

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Under IDEA, special educations are to receive a free appropriate public education (FAPE) in the least restrictive environment (LRE).

It is a state's legal duty to identify, locate, and evaluate all suspected children with a disability and provide special education and services.

In Texas, schools have no more than 15 days to fulfil a request made by a parent asking for evaluation of special education services.

The earlier a child with a disability is identified, the more likely he/or she will be academically successful.

Individualized Education Program (IEP) are tailored to each student's need to ensure academic success.

Students are to receive accommodations whether they are in-person or virtual learning.

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As Pandemic Persists, Parents Of Students In Special Ed Face ‘No-Win Situation’

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As Pandemic Persists, Parents Of Students In Special Ed Face ‘No-Win Situation’

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This article relates to the identification of special education students because this student who has been identified has been receiving little to no services because of COVID-19. After a student has been evaluated and identified as special needs, they should continually receive their services according to their Individualized Education Program (IEP). However, many parents are seeing a regression in students' progress because the lack of services being provided.

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BALTIMORE - The desk from which Landon Stewart attends third grade looks less like a dining table these days and more like a high-tech command center, decked with two computer screens and colored pencils.

To attend school online this fall amid the COVID-19 pandemic, the 9-year-old, who is nonverbal, requires a myriad of devices, including one that allows him to select words on a screen with eye movements so he can communicate with his teacher.

Landon's mother, Allison Stewart, savors watching her son's schooling at home in Dundalk, like the moment he lit up after getting a perfect score on a test he was able to turn in without help. But she also worries because Landon is missing out on special educational services, such as physical and speech therapy, which are difficult to deliver remotely.

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He is starting to show signs of regressing on skills that he had previously mastered - when asked recently to break down the elements of a story about a dog, for instance, he struggled to do so sequentially. Another day, Landon had a meltdown when some features of his devices didn't work properly.

"He said, 'Please don't make me do this anymore,'" his mom recalled.

Landon is among the roughly 1 in 8 Maryland students who has a disability and is guaranteed access to specialized education services by law. But many of those services were altered or cut off when school districts closed buildings in response to the pandemic.

Some Baltimore-area school systems have made students in special education a priority to return to classrooms this fall. The plans are an acknowledgment that online instruction, which requires students to spend hours in front of a computer screen, poses a serious challenge for some children with disabilities.

But often those same students have underlying health conditions that put them at a higher risk for COVID-19, and some teachers and parents worry that returning to schools is too dangerous.

The situation has left students, parents, school systems and educators with no simple answers.

Stewart wants her son back in school for face-to-face lessons.

"I'm definitely not a teacher, nor do I have the ability to modify curriculum in real time," she said. "I don't know how to say 'this isn't working' and fix it. I don't want to cause bad habits."

Baltimore County plans to reopen four special education schools in November, but Landon likely won't be eligible to return, Stewart said.

Under federal law that guarantees students the right to learn in the "least restrictive environment," her son typically receives instruction in a mainstream classroom. That means Landon, who is cognitively on par with his third grade peers, will have to wait until most other students are allowed to return to brick-and-mortar schools.

Howard County school officials are surveying parents of students who receive special education services to gauge how many would be interested in having their children return to a school building. The district says it's focusing on the highest-need students first, and any return will depend on staffing and health and safety guidelines.

Carroll County allowed 169 students receiving the most intensive special services to return to classrooms this semester, with plans to bring in 70 more soon, said Nick Shockney, Carroll's director of special education.

The Anne Arundel and Harford county school systems did not respond to a request for interviews.

Several special education advocates told The Baltimore Sun that families have reported seeing regression in their children since schools closed in the spring.

Leslie Margolis, an attorney with Disability Rights Maryland, represents both families who are desperate for schools to reopen and those who are fearful of the health risks to their children. School systems and state education leaders should consider reopening plans that reflect that dichotomy, she said.

"Anytime you make a blanket decision without looking at individual needs, you run the risk of digging yourself into a hole," Margolis said. "What we worry about is that school systems have not thought through a robust solution for students."

Margolis criticized the Maryland State Department of Education for issuing "guardrails" for the 2020-21 school year while leaving school systems to sort through reopening plans on their own.

Families are turning to Disability Rights Maryland to learn how to obtain in-home services or advice on what to do if their child's individualized education program isn't being implemented. The queries indicate there's a gap between state policies and school system practice, she said.

"There is a chasm between what the administration at the state and local levels think should be happening and what families are actually experiencing," Margolis said. "The desperation, the anxiety, the feeling of being overwhelmed is a lot for families."

Disability Rights Maryland has seen a spike in the number of families reaching out with questions during the pandemic, Margolis said.

At the Parents' Place of Maryland, an Anne Arundel County nonprofit that provides families with resources to advocate for children in special education, "calls have escalated, and then some," said executive director Rene Averitt-Sanzone.

Many parents report they are frustrated with online education, but some are scared by the health risks associated with in-person instruction, Averitt-Sanzone said.

"At the end of the day, it's a no-win situation," she said.

As Baltimore's director of special education, Debra Brooks says it's unrealistic to think all students will be able to get their necessary supports and services online.

Brooks is a proud grandmother to five Baltimore City students, ranging in grades from prekindergarten to a sophomore in high school.

"I have witnessed it all," she said of the struggles facing students this year. The solution, she said, is to provide families with multiple options.

"There are going to be some students who are able to adapt and others for whom it's going to be so challenging that we have to offer in-person," she said.

The city school system recently brought about 45 students in special education programs back to school buildings in small groups. And school leaders plan to reopen 25 schools in November to serve students in pre-K, kindergarten and special education, and those experiencing homelessness. The district also will bring back students who are showing up less than 20% of the time for online lessons.

As Baltimore County school administrators prepare to reopen Ridge Ruxton School, a specialized school for youths with significant disabilities, teacher Kelly Yalfani says she fears the worst-case scenario - losing a student to COVID-19. That's why she opposes the plan to reopen this fall.

"If you have to choose between student lives and best instruction practices, to us there's no argument," Yalfani said of Ridge Ruxton teachers like herself who oppose reopening this fall. "I'd rather wait."

Educators at Ridge Ruxton are much more hands-on than in a mainstream setting, which poses a challenge for social distancing.

Yalfani helps her students with feeding tubes or by changing their diapers. Some students have behavioral issues that require an adult to be within 5 feet at all times. Others are nonverbal, meaning they can't communicate to a teacher when they're feeling symptoms, she said.

"I'm not worried about me, but I am worried about my students," Yalfani said. "The thought of losing a student (to COVID-19) is unbearable."

Some families say their students are thriving while learning at home.

Alejandro Estrada, a high school senior at Howard County's River Hill High School, can focus more on what his teachers are saying and writing when he's seated in front of his computer with headphones on.

The 17-year-old, who has autism, enjoys the surprises that sometimes play out in the background of his classmates' screens - a pet makes a guest appearance, a teacher introduces his own youngsters or a classmate goes on a stroll outside while listening to the lesson.

Although Estrada misses hanging out with his friends at school, he's willing to wait until the pandemic poses less of a threat before returning to the classroom.

"There are different reasons that make me want to go back to school, and different reasons that make me want to stay (at home)," he said. "But I don't think we should go back to the building because I don't think it would be safe."

Alejandro's mother, Marianela Estrada, knows other families with children who receive special education services haven't fared as well.

She works with the Howard County Autism Society as a liaison for Spanish-speaking families. Making sure their children are receiving the special education services they need is even more difficult for parents who don't speak English.

Estrada tells those families to trust that they can decide what's best.

"You know your (child). You know what's good for them. If something doesn't work, you have to speak up."

As a former teacher, Catherine Carter believed she was prepared to help her five children - four of whom receive special educational services - navigate online learning.

But after weeks of deciphering schedules and soothing daily breakdowns triggered by missed assignments, Carter threw up her hands and withdrew four of her kids from Howard County public schools to home-school them. She cried together with her youngest's kindergarten teacher as she delivered the news, assuring the educator that it wasn't her fault.

The family plans to continue home-schooling for a year before deciding whether public health conditions are safe enough to return to the classroom. For now, though, the switch has lifted a weight from everyone's shoulders, Carter said.

She doesn't have to navigate a labyrinth of curricula anymore. Instead, she's bought textbooks for her four children, and she tells them:

"You're going to start on page one, and what's after page one? Page two."
© 2020 The Baltimore Sun
Distributed by Tribune Content Agency, LLC

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As Pandemic Persists, Parents Of Students In Special Ed Face 'No-Win Situation'

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BALTIMORE - The desk from which Landon Stewart attends third grade looks less like a dining table these days and more like a high-tech command center, decked with two computer screens and colored pencils.

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The topic I am choosing to focus on is identification of special education students. I am considering this topic from the role of a school counselor. The audience will be novice educators entering the education field and working with special education students. I chose this topic because currently, I am a special education teacher. I was not aware of all the laws that came with special education services. I hope that this legal and ethical guide will provide a clear pathway for understanding how to identify special education students and implementing services.

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It is important for educators to know how to identify special education students. Under IDEA, states have a legal duty to locate, identify, and evaluate children who may benefits from special education services. Children who are identified early under special education have a better chance at being successful in their academics. Educators who fail to identify students are doing a disservice to the child's learning.

An issue I believe educators should carefully watch is how COVID-19 is affecting special education students. COVID has greatly affected students, especially special education students. Many special need students are not receiving their services. If school districts are not implementing methods for educators to service children effectively online, we will see special education fall behind severely.

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Ed Department Reminds Schools Of IDEA Obligations During Pandemic

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Ed Department Reminds Schools Of IDEA Obligations During Pandemic

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This news article summarizes how special education teachers should still be servicing their students despite being in a pandemic. Teachers who are servicing students with special needs should be providing various resources that accommodates those who are receiving either in-person or virtual learning. Schools may also determine may choose to prioritize special needs students coming to school to based on their individualized needs.

Diament, M. (2020, October 05). Ed Department Reminds Schools Of IDEA Obligations During Pandemic. Retrieved November 20, 2020, from https://www.disabilityscoop.com/2020/10/05/ed-department-reminds-schools-of-idea-obligations-during-pandemic/29019/

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With an unprecedented school year underway, federal officials are weighing in yet again on how educators ought to be serving students with disabilities during the COVID-19 pandemic.

The U.S. Department of Education issued two question-and-answer documents last week offering further clarification on how the Individuals with Disabilities Education Act and other laws should be implemented while the nation grapples with the coronavirus.

The agency has now offered guidance at least a half-dozen times since March on how services for those with disabilities should proceed amid the pandemic. The Education Department said the latest information comes in response to inquiries it has received.

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Above all, federal officials used the new guidance as another opportunity to impress upon educators their continued responsibilities under IDEA.

"No matter what primary instructional delivery approach is chosen, (state educational agencies, school districts) and individualized education program (IEP) teams remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities," reads a Q&A document issued by the Office of Special Education and Rehabilitative Services' Office of Special Education Programs.

IEP teams should consider a variety of ways that services can be provided, particularly given that changing circumstances may force children to move between in-person, remote and hybrid schedules as the school year goes on, the Education Department said.

What's more, in cases where extended school year services were not delivered over the summer because of the pandemic, schools should factor whether the offerings can be provided during the school year or during breaks or vacations, according to the guidance.

The agency's special education office also addressed some procedural issues like who should attend IEP meetings, when the IEP amendment process can be utilized and considerations for both initial evaluations and reevaluations.

Meanwhile, a separate Q&A document from the Education Department's Office for Civil Rights indicates that schools may choose to prioritize in-person learning for students with disabilities, but whether or not such priority is required "will depend on an individualized determination of the student's educational and disability-related needs."

The civil rights office also clarified several points related to services provided under Section 504 of the Rehabilitation Act and spelled out how schools should handle cases where students with disabilities are unable to wear face coverings.

Districts should "make reasonable modifications in their policies, practices or procedures - including any addressing the use of face coverings - when those modifications can be made consistent with the health, safety and well-being of all students and staff, and are necessary to avoid discrimination on the basis of disability," the Q&A document indicates.

Like other guidance, the Education Department said that the newly-released documents do not establish any rights or policies, but simply serve as the agency's interpretation of existing laws.

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Ed Department Reminds Schools Of IDEA Obligations During Pandemic

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With an unprecedented school year underway, federal officials are weighing in yet again on how educators ought to be serving students with disabilities during the COVID-19 pandemic. The U.S. Department of Education issued two question-and-answer documents last week offering further clarification on how the Individuals with Disabilities Education Act and other laws should be implemented while the nation grapples with the coronavirus.

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This section of relates to identifying special education students because school counselors have a duty to advocate for students and make appropriate referrals.  School counselors are to collaborate with other school personnel when they notice a child has early signs of distress affecting their learning.

American School Counselor American School Counselor Association. (2016). ASCA Ethical Standards for School Counselors. Retrieved November 19, 2020, from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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Steps for Identifying Special Education Students

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Steps for Identifying Special Education Students

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This website provides educators with the critical steps for identifying students for special education services and monitoring their progress. This resource is important because it points out the steps designed to ensure special education students are being identified and serviced under IDEA.

Reading Rockets. (2013, November 07). 10 Steps in the Special Education Process. Retrieved November 19, 2020, from https://www.readingrockets.org/article/10-steps-special-education-process

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10 Steps in the Special Education Process

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The special education process under IDEA is designed to ensure that each individual child's needs are carefully considered and addressed. Learn ten steps in the special education process, from evaluation to reviewing student progress.

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Individuals with Disabilities Education Act

This federal law ensures students with disabilities are ensured a free appropriate public education that is tailored to fit their personal needs.

This section states that States have a legal duty to identify, locate, and evaluate all students who are eligible for special need services.

20 U.S.C. § 1412 (3)(A)

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§1412. State eligibility

(a) In general

A State is eligible for assistance under this subchapter for a fiscal year if the State submits a plan that provides assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets each of the following conditions:

(1) Free appropriate public education

(A) In general

A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.

(B) Limitation

The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children-

(i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges; and

(ii) aged 18 through 21 to the extent that State law does not require that special education and related services under this subchapter be provided to children with disabilities who, in the educational placement prior to their incarceration in an adult correctional facility-

(I) were not actually identified as being a child with a disability under section 1401 of this title; or

(II) did not have an individualized education program under this subchapter.

(C) State flexibility

A State that provides early intervention services in accordance with subchapter III to a child who is eligible for services under section 1419 of this title, is not required to provide such child with a free appropriate public education.

(2) Full educational opportunity goal

The State has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal.

(3) Child find

(A) In general

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

(B) Construction

Nothing in this chapter requires that children be classified by their disability so long as each child who has a disability listed in section 1401 of this title and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this subchapter.

(4) Individualized education program

An individualized education program, or an individualized family service plan that meets the requirements of section 1436(d) of this title, is developed, reviewed, and revised for each child with a disability in accordance with section 1414(d) of this title.

(5) Least restrictive environment

(A) In general

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(B) Additional requirement

(i) In general

A State funding mechanism shall not result in placements that violate the requirements of subparagraph (A), and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child's IEP.

(ii) Assurance

If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements.

(6) Procedural safeguards

(A) In general

Children with disabilities and their parents are afforded the procedural safeguards required by section 1415 of this title.

(B) Additional procedural safeguards

Procedures to ensure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities for services under this chapter will be selected and administered so as not to be racially or culturally discriminatory. Such materials or procedures shall be provided and administered in the child's native language or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child.

(7) Evaluation

Children with disabilities are evaluated in accordance with subsections (a) through (c) of section 1414 of this title.

(8) Confidentiality

Agencies in the State comply with section 1417(c) of this title (relating to the confidentiality of records and information).

(9) Transition from subchapter III to preschool programs

Children participating in early intervention programs assisted under subchapter III, and who will participate in preschool programs assisted under this subchapter, experience a smooth and effective transition to those preschool programs in a manner consistent with section 1437(a)(9) of this title. By the third birthday of such a child, an individualized education program or, if consistent with sections 1414(d)(2)(B) and 1436(d) of this title, an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 1435(a)(10) of this title.

(10) Children in private schools

(A) Children enrolled in private schools by their parents

(i) In general

To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by a local educational agency, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f):

(I) Amounts to be expended for the provision of those services (including direct services to parentally placed private school children) by the local educational agency shall be equal to a proportionate amount of Federal funds made available under this subchapter.

(II) In calculating the proportionate amount of Federal funds, the local educational agency, after timely and meaningful consultation with representatives of private schools as described in clause (iii), shall conduct a thorough and complete child find process to determine the number of parentally placed children with disabilities attending private schools located in the local educational agency.

(III) Such services to parentally placed private school children with disabilities may be provided to the children on the premises of private, including religious, schools, to the extent consistent with law.

(IV) State and local funds may supplement and in no case shall supplant the proportionate amount of Federal funds required to be expended under this subparagraph.

(V) Each local educational agency shall maintain in its records and provide to the State educational agency the number of children evaluated under this subparagraph, the number of children determined to be children with disabilities under this paragraph, and the number of children served under this paragraph.

(ii) Child find requirement

(I) In general

The requirements of paragraph (3) (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including religious, elementary schools and secondary schools.

(II) Equitable participation

The child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children.

(III) Activities

In carrying out this clause, the local educational agency, or where applicable, the State educational agency, shall undertake activities similar to those activities undertaken for the agency's public school children.

(IV) Cost

The cost of carrying out this clause, including individual evaluations, may not be considered in determining whether a local educational agency has met its obligations under clause (i).

(V) Completion period

Such child find process shall be completed in a time period comparable to that for other students attending public schools in the local educational agency.

(iii) Consultation

To ensure timely and meaningful consultation, a local educational agency, or where appropriate, a State educational agency, shall consult with private school representatives and representatives of parents of parentally placed private school children with disabilities during the design and development of special education and related services for the children, including regarding-

(I) the child find process and how parentally placed private school children suspected of having a disability can participate equitably, including how parents, teachers, and private school officials will be informed of the process;

(II) the determination of the proportionate amount of Federal funds available to serve parentally placed private school children with disabilities under this subparagraph, including the determination of how the amount was calculated;

(III) the consultation process among the local educational agency, private school officials, and representatives of parents of parentally placed private school children with disabilities, including how such process will operate throughout the school year to ensure that parentally placed private school children with disabilities identified through the child find process can meaningfully participate in special education and related services;

(IV) how, where, and by whom special education and related services will be provided for parentally placed private school children with disabilities, including a discussion of types of services, including direct services and alternate service delivery mechanisms, how such services will be apportioned if funds are insufficient to serve all children, and how and when these decisions will be made; and

(V) how, if the local educational agency disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, the local educational agency shall provide to the private school officials a written explanation of the reasons why the local educational agency chose not to provide services directly or through a contract.

(iv) Written affirmation

When timely and meaningful consultation as required by clause (iii) has occurred, the local educational agency shall obtain a written affirmation signed by the representatives of participating private schools, and if such representatives do not provide such affirmation within a reasonable period of time, the local educational agency shall forward the documentation of the consultation process to the State educational agency.

(v) Compliance

(I) In general

A private school official shall have the right to submit a complaint to the State educational agency that the local educational agency did not engage in consultation that was meaningful and timely, or did not give due consideration to the views of the private school official.

(II) Procedure

If the private school official wishes to submit a complaint, the official shall provide the basis of the noncompliance with this subparagraph by the local educational agency to the State educational agency, and the local educational agency shall forward the appropriate documentation to the State educational agency. If the private school official is dissatisfied with the decision of the State educational agency, such official may submit a complaint to the Secretary by providing the basis of the noncompliance with this subparagraph by the local educational agency to the Secretary, and the State educational agency shall forward the appropriate documentation to the Secretary.

(vi) Provision of equitable services

(I) Directly or through contracts

The provision of services pursuant to this subparagraph shall be provided-

(aa) by employees of a public agency; or

(bb) through contract by the public agency with an individual, association, agency, organization, or other entity.

(II) Secular, neutral, nonideological

Special education and related services provided to parentally placed private school children with disabilities, including materials and equipment, shall be secular, neutral, and nonideological.

(vii) Public control of funds

The control of funds used to provide special education and related services under this subparagraph, and title to materials, equipment, and property purchased with those funds, shall be in a public agency for the uses and purposes provided in this chapter, and a public agency shall administer the funds and property.

(B) Children placed in, or referred to, private schools by public agencies

(i) In general

Children with disabilities in private schools and facilities are provided special education and related services, in accordance with an individualized education program, at no cost to their parents, if such children are placed in, or referred to, such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special education and related services to all children with disabilities within such State.

(ii) Standards

In all cases described in clause (i), the State educational agency shall determine whether such schools and facilities meet standards that apply to State educational agencies and local educational agencies and that children so served have all the rights the children would have if served by such agencies.

(C) Payment for education of children enrolled in private schools without consent of or referral by the public agency

(i) In general

Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

(ii) Reimbursement for private school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(iii) Limitation on reimbursement

The cost of reimbursement described in clause (ii) may be reduced or denied-

(I) if-

(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa);

(II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(iv) Exception

Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement-

(I) shall not be reduced or denied for failure to provide such notice if-

(aa) the school prevented the parent from providing such notice;

(bb) the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(I); or

(cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if-

(aa) the parent is illiterate or cannot write in English; or

(bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.

(11) State educational agency responsible for general supervision

(A) In general

The State educational agency is responsible for ensuring that-

(i) the requirements of this subchapter are met;

(ii) all educational programs for children with disabilities in the State, including all such programs administered by any other State agency or local agency-

(I) are under the general supervision of individuals in the State who are responsible for educational programs for children with disabilities; and

(II) meet the educational standards of the State educational agency; and

(iii) in carrying out this subchapter with respect to homeless children, the requirements of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met.

(B) Limitation

Subparagraph (A) shall not limit the responsibility of agencies in the State other than the State educational agency to provide, or pay for some or all of the costs of, a free appropriate public education for any child with a disability in the State.

(C) Exception

Notwithstanding subparagraphs (A) and (B), the Governor (or another individual pursuant to State law), consistent with State law, may assign to any public agency in the State the responsibility of ensuring that the requirements of this subchapter are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons.

(12) Obligations related to and methods of ensuring services

(A) Establishing responsibility for services

The Chief Executive Officer of a State or designee of the officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each public agency described in subparagraph (B) and the State educational agency, in order to ensure that all services described in subparagraph (B)(i) that are needed to ensure a free appropriate public education are provided, including the provision of such services during the pendency of any dispute under clause (iii). Such agreement or mechanism shall include the following:

(i) Agency financial responsibility

An identification of, or a method for defining, the financial responsibility of each agency for providing services described in subparagraph (B)(i) to ensure a free appropriate public education to children with disabilities, provided that the financial responsibility of each public agency described in subparagraph (B), including the State medicaid agency and other public insurers of children with disabilities, shall precede the financial responsibility of the local educational agency (or the State agency responsible for developing the child's IEP).

(ii) Conditions and terms of reimbursement

The conditions, terms, and procedures under which a local educational agency shall be reimbursed by other agencies.

(iii) Interagency disputes

Procedures for resolving interagency disputes (including procedures under which local educational agencies may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.

(iv) Coordination of services procedures

Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in subparagraph (B)(i).

(B) Obligation of public agency

(i) In general

If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy pursuant to subparagraph (A), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in section 1401(1) relating to assistive technology devices, 1401(2) relating to assistive technology services, 1401(26) relating to related services, 1401(33) relating to supplementary aids and services, and 1401(34) of this title relating to transition services) that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to subparagraph (A) or an agreement pursuant to subparagraph (C).

(ii) Reimbursement for services by public agency

If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local educational agency (or State agency responsible for developing the child's IEP) shall provide or pay for such services to the child. Such local educational agency or State agency is authorized to claim reimbursement for the services from the public agency that failed to provide or pay for such services and such public agency shall reimburse the local educational agency or State agency pursuant to the terms of the interagency agreement or other mechanism described in subparagraph (A)(i) according to the procedures established in such agreement pursuant to subparagraph (A)(ii).

(C) Special rule

The requirements of subparagraph (A) may be met through-

(i) State statute or regulation;

(ii) signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or

(iii) other appropriate written methods as determined by the Chief Executive Officer of the State or designee of the officer and approved by the Secretary.

(13) Procedural requirements relating to local educational agency eligibility

The State educational agency will not make a final determination that a local educational agency is not eligible for assistance under this subchapter without first affording that agency reasonable notice and an opportunity for a hearing.

(14) Personnel qualifications

(A) In general

The State educational agency has established and maintains qualifications to ensure that personnel necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.

(B) Related services personnel and paraprofessionals

The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that-

(i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services;

(ii) ensure that related services personnel who deliver services in their discipline or profession meet the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities.

(C) Qualifications for special education teachers

The qualifications described in subparagraph (A) shall ensure that each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school-

(i) has obtained full State certification as a special education teacher (including participating in an alternate route to certification as a special educator, if such alternate route meets minimum requirements described in section 2005.56(a)(2)(ii) of title 34, Code of Federal Regulations, as such section was in effect on November 28, 2008), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except with respect to any teacher teaching in a public charter school who shall meet the requirements set forth in the State's public charter school law;

(ii) has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii) holds at least a bachelor's degree..

(D) Policy

In implementing this section, a State shall adopt a policy that includes a requirement that local educational agencies in the State take measurable steps to recruit, hire, train, and retain personnel who meet the applicable requirements described in this paragraph to provide special education and related services under this subchapter to children with disabilities.

(E) Rule of construction

Notwithstanding any other individual right of action that a parent or student may maintain under this subchapter, nothing in this paragraph shall be construed to create a right of action on behalf of an individual student for the failure of a particular State educational agency or local educational agency staff person to meet the applicable requirements described in this paragraph, or to prevent a parent from filing a complaint about staff qualifications with the State educational agency as provided for under this subchapter.

(15) Performance goals and indicators

The State-

(A) has established goals for the performance of children with disabilities in the State that-

(i) promote the purposes of this chapter, as stated in section 1400(d) of this title;

(ii) are the same as the State's long-term goals and measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i) of this title;

(iii) address graduation rates and dropout rates, as well as such other factors as the State may determine; and

(iv) are consistent, to the extent appropriate, with any other goals and standards for children established by the State;

(B) has established performance indicators the State will use to assess progress toward achieving the goals described in subparagraph (A), including measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i) of this title; and

(C) will annually report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under subparagraph (A), which may include elements of the reports required under section 6311(h) of this title.

(16) Participation in assessments

(A) In general

All children with disabilities are included in all general State and districtwide assessment programs, including assessments described under section 6311 of this title, with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs.

(B) Accommodation guidelines

The State (or, in the case of a districtwide assessment, the local educational agency) has developed guidelines for the provision of appropriate accommodations.

(C) Alternate assessments

(i) In general

The State (or, in the case of a districtwide assessment, the local educational agency) has developed and implemented guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in regular assessments under subparagraph (A) with accommodations as indicated in their respective individualized education programs.

(ii) Requirements for alternate assessments

The guidelines under clause (i) shall provide for alternate assessments that-

(I) are aligned with the challenging State academic content standards under section 6311(b)(1) of this title and alternate academic achievement standards under section 6311(b)(1)(E) of this title; and

(II) if the State has adopted alternate academic achievement standards permitted under section 6311(b)(1)(E) of this title, measure the achievement of children with disabilities against those standards.

(iii) Conduct of alternate assessments

The State conducts the alternate assessments described in this subparagraph.

(D) Reports

The State educational agency (or, in the case of a districtwide assessment, the local educational agency) makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(i) The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations in order to participate in those assessments.

(ii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(I).

(iii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(II).

(iv) The performance of children with disabilities on regular assessments and on alternate assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information will not reveal personally identifiable information about an individual student), compared with the achievement of all children, including children with disabilities, on those assessments.

(E) Universal design

The State educational agency (or, in the case of a districtwide assessment, the local educational agency) shall, to the extent feasible, use universal design principles in developing and administering any assessments under this paragraph.

(17) Supplementation of State, local, and other Federal funds

(A) Expenditures

Funds paid to a State under this subchapter will be expended in accordance with all the provisions of this subchapter.

(B) Prohibition against commingling

Funds paid to a State under this subchapter will not be commingled with State funds.

(C) Prohibition against supplantation and conditions for waiver by Secretary

Except as provided in section 1413 of this title, funds paid to a State under this subchapter will be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of State or local educational agencies) expended for special education and related services provided to children with disabilities under this subchapter and in no case to supplant such Federal, State, and local funds, except that, where the State provides clear and convincing evidence that all children with disabilities have available to them a free appropriate public education, the Secretary may waive, in whole or in part, the requirements of this subparagraph if the Secretary concurs with the evidence provided by the State.

(18) Maintenance of State financial support

(A) In general

The State does not reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year.

(B) Reduction of funds for failure to maintain support

The Secretary shall reduce the allocation of funds under section 1411 of this title for any fiscal year following the fiscal year in which the State fails to comply with the requirement of subparagraph (A) by the same amount by which the State fails to meet the requirement.

(C) Waivers for exceptional or uncontrollable circumstances

The Secretary may waive the requirement of subparagraph (A) for a State, for 1 fiscal year at a time, if the Secretary determines that-

(i) granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or

(ii) the State meets the standard in paragraph (17)(C) for a waiver of the requirement to supplement, and not to supplant, funds received under this subchapter.

(D) Subsequent years

If, for any year, a State fails to meet the requirement of subparagraph (A), including any year for which the State is granted a waiver under subparagraph (C), the financial support required of the State in future years under subparagraph (A) shall be the amount that would have been required in the absence of that failure and not the reduced level of the State's support.

(19) Public participation

Prior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the State ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities.

(20) Rule of construction

In complying with paragraphs (17) and (18), a State may not use funds paid to it under this subchapter to satisfy State-law mandated funding obligations to local educational agencies, including funding based on student attendance or enrollment, or inflation.

(21) State advisory panel

(A) In general

The State has established and maintains an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State.

(B) Membership

Such advisory panel shall consist of members appointed by the Governor, or any other official authorized under State law to make such appointments, be representative of the State population, and be composed of individuals involved in, or concerned with, the education of children with disabilities, including-

(i) parents of children with disabilities (ages birth through 26);

(ii) individuals with disabilities;

(iii) teachers;

(iv) representatives of institutions of higher education that prepare special education and related services personnel;

(v) State and local education officials, including officials who carry out activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.);

(vi) administrators of programs for children with disabilities;

(vii) representatives of other State agencies involved in the financing or delivery of related services to children with disabilities;

(viii) representatives of private schools and public charter schools;

(ix) not less than 1 representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities;

(x) a representative from the State child welfare agency responsible for foster care; and

(xi) representatives from the State juvenile and adult corrections agencies.

(C) Special rule

A majority of the members of the panel shall be individuals with disabilities or parents of children with disabilities (ages birth through 26).

(D) Duties

The advisory panel shall-

(i) advise the State educational agency of unmet needs within the State in the education of children with disabilities;

(ii) comment publicly on any rules or regulations proposed by the State regarding the education of children with disabilities;

(iii) advise the State educational agency in developing evaluations and reporting on data to the Secretary under section 1418 of this title;

(iv) advise the State educational agency in developing corrective action plans to address findings identified in Federal monitoring reports under this subchapter; and

(v) advise the State educational agency in developing and implementing policies relating to the coordination of services for children with disabilities.

(22) Suspension and expulsion rates

(A) In general

The State educational agency examines data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities-

(i) among local educational agencies in the State; or

(ii) compared to such rates for nondisabled children within such agencies.

(B) Review and revision of policies

If such discrepancies are occurring, the State educational agency reviews and, if appropriate, revises (or requires the affected State or local educational agency to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards, to ensure that such policies, procedures, and practices comply with this chapter.

(23) Access to instructional materials

(A) In general

The State adopts the National Instructional Materials Accessibility Standard for the purposes of providing instructional materials to blind persons or other persons with print disabilities, in a timely manner after the publication of the National Instructional Materials Accessibility Standard in the Federal Register.

(B) Rights of State educational agency

Nothing in this paragraph shall be construed to require any State educational agency to coordinate with the National Instructional Materials Access Center. If a State educational agency chooses not to coordinate with the National Instructional Materials Access Center, such agency shall provide an assurance to the Secretary that the agency will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.

(C) Preparation and delivery of files

If a State educational agency chooses to coordinate with the National Instructional Materials Access Center, not later than 2 years after December 3, 2004, the agency, as part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, shall enter into a written contract with the publisher of the print instructional materials to-

(i) require the publisher to prepare and, on or before delivery of the print instructional materials, provide to the National Instructional Materials Access Center electronic files containing the contents of the print instructional materials using the National Instructional Materials Accessibility Standard; or

(ii) purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.

(D) Assistive technology

In carrying out this paragraph, the State educational agency, to the maximum extent possible, shall work collaboratively with the State agency responsible for assistive technology programs.

(E) Definitions

In this paragraph:

(i) National Instructional Materials Access Center

The term "National Instructional Materials Access Center" means the center established pursuant to section 1474(e) of this title.

(ii) National Instructional Materials Accessibility Standard

The term "National Instructional Materials Accessibility Standard" has the meaning given the term in section 1474(e)(3)(A) of this title.

(iii) Specialized formats

The term "specialized formats" has the meaning given the term in section 1474(e)(3)(D) of this title.

(24) Overidentification and disproportionality

The State has in effect, consistent with the purposes of this chapter and with section 1418(d) of this title, policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment described in section 1401 of this title.

(25) Prohibition on mandatory medication

(A) In general

The State educational agency shall prohibit State and local educational agency personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act (21 U.S.C. 801 et seq.) as a condition of attending school, receiving an evaluation under subsection (a) or (c) of section 1414 of this title, or receiving services under this chapter.

(B) Rule of construction

Nothing in subparagraph (A) shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under paragraph (3).

(b) State educational agency as provider of free appropriate public education or direct services

If the State educational agency provides free appropriate public education to children with disabilities, or provides direct services to such children, such agency-

(1) shall comply with any additional requirements of section 1413(a) of this title, as if such agency were a local educational agency; and

(2) may use amounts that are otherwise available to such agency under this subchapter to serve those children without regard to section 1413(a)(2)(A)(i) of this title (relating to excess costs).

(c) Exception for prior State plans

(1) In general

If a State has on file with the Secretary policies and procedures that demonstrate that such State meets any requirement of subsection (a), including any policies and procedures filed under this subchapter as in effect before the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the Secretary shall consider such State to have met such requirement for purposes of receiving a grant under this subchapter.

(2) Modifications made by State

Subject to paragraph (3), an application submitted by a State in accordance with this section shall remain in effect until the State submits to the Secretary such modifications as the State determines necessary. This section shall apply to a modification to an application to the same extent and in the same manner as this section applies to the original plan.

(3) Modifications required by the Secretary

If, after the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the provisions of this chapter are amended (or the regulations developed to carry out this chapter are amended), there is a new interpretation of this chapter by a Federal court or a State's highest court, or there is an official finding of noncompliance with Federal law or regulations, then the Secretary may require a State to modify its application only to the extent necessary to ensure the State's compliance with this subchapter.

(d) Approval by the Secretary

(1) In general

If the Secretary determines that a State is eligible to receive a grant under this subchapter, the Secretary shall notify the State of that determination.

(2) Notice and hearing

The Secretary shall not make a final determination that a State is not eligible to receive a grant under this subchapter until after providing the State-

(A) with reasonable notice; and

(B) with an opportunity for a hearing.

(e) Assistance under other Federal programs

Nothing in this chapter permits a State to reduce medical and other assistance available, or to alter eligibility, under titles V and XIX of the Social Security Act [42 U.S.C. 701 et seq., 1396 et seq.] with respect to the provision of a free appropriate public education for children with disabilities in the State.

(f) By-pass for children in private schools

(1) In general

If, on December 2, 1983, a State educational agency was prohibited by law from providing for the equitable participation in special programs of children with disabilities enrolled in private elementary schools and secondary schools as required by subsection (a)(10)(A), or if the Secretary determines that a State educational agency, local educational agency, or other entity has substantially failed or is unwilling to provide for such equitable participation, then the Secretary shall, notwithstanding such provision of law, arrange for the provision of services to such children through arrangements that shall be subject to the requirements of such subsection.

(2) Payments

(A) Determination of amounts

If the Secretary arranges for services pursuant to this subsection, the Secretary, after consultation with the appropriate public and private school officials, shall pay to the provider of such services for a fiscal year an amount per child that does not exceed the amount determined by dividing-

(i) the total amount received by the State under this subchapter for such fiscal year; by

(ii) the number of children with disabilities served in the prior year, as reported to the Secretary by the State under section 1418 of this title.

(B) Withholding of certain amounts

Pending final resolution of any investigation or complaint that may result in a determination under this subsection, the Secretary may withhold from the allocation of the affected State educational agency the amount the Secretary estimates will be necessary to pay the cost of services described in subparagraph (A).

(C) Period of payments

The period under which payments are made under subparagraph (A) shall continue until the Secretary determines that there will no longer be any failure or inability on the part of the State educational agency to meet the requirements of subsection (a)(10)(A).

(3) Notice and hearing

(A) In general

The Secretary shall not take any final action under this subsection until the State educational agency affected by such action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary or the Secretary's designee to show cause why such action should not be taken.

(B) Review of action

If a State educational agency is dissatisfied with the Secretary's final action after a proceeding under subparagraph (A), such agency may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based the Secretary's action, as provided in section 2112 of title 28.

(C) Review of findings of fact

The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.

(D) Jurisdiction of court of appeals; review by United States Supreme Court

Upon the filing of a petition under subparagraph (B), the United States court of appeals shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.

( Pub. L. 91-230, title VI, §612, as added Pub. L. 108-446, title I, §101, Dec. 3, 2004, 118 Stat. 2676; amended Pub. L. 114-95, title IX, §§9214(d)(2), 9215(ss)(3), Dec. 10, 2015, 129 Stat. 2164, 2182.)

References in Text

The McKinney-Vento Homeless Assistance Act, referred to in subsec. (a)(11)(A)(iii), (21)(B)(v), is Pub. L. 100-77, July 22, 1987, 101 Stat. 482, as amended. Subtitle B of title VII of the Act is classified generally to part B (§11431 et seq.) of subchapter VI of chapter 119 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 11301 of Title 42 and Tables.

The Controlled Substances Act, referred to in subsec. (a)(25)(A), is title II of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1242, as amended, which is classified principally to subchapter I (§801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables.

For the effective date of the Individuals with Disabilities Education Improvement Act of 2004, referred to in subsec. (c)(1), (3), see section 302(a), (b) of Pub. L. 108-446, set out as an Effective Date note under section 1400 of this title.

The Social Security Act, referred to in subsec. (e), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and XIX of the Act are classified generally to subchapters V (§701 et seq.) and XIX (§1396 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Prior Provisions

A prior section 1412, Pub. L. 91-230, title VI, §612, as added Pub. L. 105-17, title I, §101, June 4, 1997, 111 Stat. 60, related to State eligibility for assistance, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108-446.

Another prior section 1412, Pub. L. 91-230, title VI, §612, Apr. 13, 1970, 84 Stat. 178; Pub. L. 92-318, title IV, §421(b)(1)(C), June 23, 1972, 86 Stat. 341; Pub. L. 93-380, title VI, §§614(b), (f)(1), 615(a), title VIII, §843(b), Aug. 21, 1974, 88 Stat. 581, 582, 611; Pub. L. 94-142, §§2(a)(4), (c), (d), 5(a), Nov. 29, 1975, 89 Stat. 773, 774, 780; Pub. L. 98-199, §3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99-457, title II, §203(a), Oct. 8, 1986, 100 Stat. 1158; Pub. L. 100-630, title I, §102(b), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101-476, title IX, §901(b)(33)-(46), (c), Oct. 30, 1990, 104 Stat. 1143, 1144, 1151; Pub. L. 102-119, §25(a)(5), (b), Oct. 7, 1991, 105 Stat. 606, 607, related to eligibility requirements, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Amendments

2015-Subsec. (a)(14)(C). Pub. L. 114-95, §9214(d)(2)(A), substituted "secondary school-" for "secondary school is highly qualified by the deadline established in section 6319(a)(2) of this title" and added cls. (i) to (iii).

Subsec. (a)(14)(D). Pub. L. 114-95, §9214(d)(2)(B), substituted "personnel who meet the applicable requirements described in this paragraph" for "highly qualified personnel".

Subsec. (a)(14)(E). Pub. L. 114-95, §9214(d)(2)(C), substituted "staff person to meet the applicable requirements described in this paragraph" for "staff person to be highly qualified".

Subsec. (a)(15)(A)(ii). Pub. L. 114-95, §9215(ss)(3)(A)(i), added cl. (ii) and struck out former cl. (ii) which read as follows: "are the same as the State's definition of adequate yearly progress, including the State's objectives for progress by children with disabilities, under section 6311(b)(2)(C) of this title;".

Subsec. (a)(15)(B). Pub. L. 114-95, §9215(ss)(3)(A)(ii), which directed substitution of "including measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i)" for "including measurable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)", was executed by making the substitution for "including measurable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)(cc)", to reflect the probable intent of Congress.

Subsec. (a)(16)(C)(ii)(I). Pub. L. 114-95, §9215(ss)(3)(B)(i), substituted "challenging State academic content standards under section 6311(b)(1) of this title and alternate academic achievement standards under section 6311(b)(1)(E) of this title" for "State's challenging academic content standards and challenging student academic achievement standards".

Subsec. (a)(16)(C)(ii)(II). Pub. L. 114-95, §9215(ss)(3)(B)(ii), substituted "section 6311(b)(1)(E) of this title," for "the regulations promulgated to carry out section 6311(b)(1) of this title,".

Effective Date of 2015 Amendment

Amendment by Pub. L. 114-95 effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114-95, set out as a note under section 6301 of this title.

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(a) In general A State is eligible for assistance under this subchapter for a fiscal year if the State submits a plan that provides assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets each of the following conditions: (1) Free appropriate public education (A) In general A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.

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Evaluations, eligibility determinations, individualized education programs, and educational placements

This section under IDEA provides information regarding evaluations, eligibility, individual education programs, and educational placement

Parents of child or state agencies may request initial evaluation of child to see if there is a disability. Parents may refuse services.

Individual Education Programs are written statements designed to accommodates each student personal needs.

Students are to be placed in the least restrictive environment (LRE).

20 U.S.C. § 1414

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Individuals with Disabilities Education Act

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§1414. Evaluations, eligibility determinations, individualized education programs, and educational placements

(a) Evaluations, parental consent, and reevaluations

(1) Initial evaluations

(A) In general

A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this subchapter.

(B) Request for initial evaluation

Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

(C) Procedures

(i) In general

Such initial evaluation shall consist of procedures-

(I) to determine whether a child is a child with a disability (as defined in 1401 of this title) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and

(II) to determine the educational needs of such child.

(ii) Exception

The relevant timeframe in clause (i)(I) shall not apply to a local educational agency if-

(I) a child enrolls in a school served by the local educational agency after the relevant timeframe in clause (i)(I) has begun and prior to a determination by the child's previous local educational agency as to whether the child is a child with a disability (as defined in section 1401 of this title), but only if the subsequent local educational agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent local educational agency agree to a specific time when the evaluation will be completed; or

(II) the parent of a child repeatedly fails or refuses to produce the child for the evaluation.

(D) Parental consent

(i) In general

(I) Consent for initial evaluation

The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 1401 of this title shall obtain informed consent from the parent of such child before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

(II) Consent for services

An agency that is responsible for making a free appropriate public education available to a child with a disability under this subchapter shall seek to obtain informed consent from the parent of such child before providing special education and related services to the child.

(ii) Absence of consent

(I) For initial evaluation

If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may pursue the initial evaluation of the child by utilizing the procedures described in section 1415 of this title, except to the extent inconsistent with State law relating to such parental consent.

(II) For services

If the parent of such child refuses to consent to services under clause (i)(II), the local educational agency shall not provide special education and related services to the child by utilizing the procedures described in section 1415 of this title.

(III) Effect on agency obligations

If the parent of such child refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide such consent-

(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide such child with the special education and related services for which the local educational agency requests such consent; and

(bb) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this section for the child for the special education and related services for which the local educational agency requests such consent.

(iii) Consent for wards of the State

(I) In general

If the child is a ward of the State and is not residing with the child's parent, the agency shall make reasonable efforts to obtain the informed consent from the parent (as defined in section 1401 of this title) of the child for an initial evaluation to determine whether the child is a child with a disability.

(II) Exception

The agency shall not be required to obtain informed consent from the parent of a child for an initial evaluation to determine whether the child is a child with a disability if-

(aa) despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;

(bb) the rights of the parents of the child have been terminated in accordance with State law; or

(cc) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

(E) Rule of construction

The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.

(2) Reevaluations

(A) In general

A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)-

(i) if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(ii) if the child's parents or teacher requests a reevaluation.

(B) Limitation

A reevaluation conducted under subparagraph (A) shall occur-

(i) not more frequently than once a year, unless the parent and the local educational agency agree otherwise; and

(ii) at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary.

(b) Evaluation procedures

The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 1415 of this title, that describes any evaluation procedures such agency proposes to conduct.

(2) Conduct of evaluation

In conducting the evaluation, the local educational agency shall-

(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining-

(i) whether the child is a child with a disability; and

(ii) the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;

(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(3) Additional requirements

Each local educational agency shall ensure that-

(A) assessments and other evaluation materials used to assess a child under this section-

(i) are selected and administered so as not to be discriminatory on a racial or cultural basis;

(ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer;

(iii) are used for purposes for which the assessments or measures are valid and reliable;

(iv) are administered by trained and knowledgeable personnel; and

(v) are administered in accordance with any instructions provided by the producer of such assessments;

(B) the child is assessed in all areas of suspected disability;

(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided; and

(D) assessments of children with disabilities who transfer from 1 school district to another school district in the same academic year are coordinated with such children's prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

(4) Determination of eligibility and educational need

Upon completion of the administration of assessments and other evaluation measures-

(A) the determination of whether the child is a child with a disability as defined in section 1401(3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and

(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent.

(5) Special rule for eligibility determination

In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is-

(A) lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 6368(3) of this title, as such section was in effect on the day before December 10, 2015);

(B) lack of instruction in math; or

(C) limited English proficiency.

(6) Specific learning disabilities

(A) In general

Notwithstanding section 1406(b) of this title, when determining whether a child has a specific learning disability as defined in section 1401 of this title, a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.

(B) Additional authority

In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures described in paragraphs (2) and (3).

(c) Additional requirements for evaluation and reevaluations

(1) Review of existing evaluation data

As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team and other qualified professionals, as appropriate, shall-

(A) review existing evaluation data on the child, including-

(i) evaluations and information provided by the parents of the child;

(ii) current classroom-based, local, or State assessments, and classroom-based observations; and

(iii) observations by teachers and related services providers; and

(B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine-

(i) whether the child is a child with a disability as defined in section 1401(3) of this title, and the educational needs of the child, or, in case of a reevaluation of a child, whether the child continues to have such a disability and such educational needs;

(ii) the present levels of academic achievement and related developmental needs of the child;

(iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and

(iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general education curriculum.

(2) Source of data

The local educational agency shall administer such assessments and other evaluation measures as may be needed to produce the data identified by the IEP Team under paragraph (1)(B).

(3) Parental consent

Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond.

(4) Requirements if additional data are not needed

If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child's educational needs, the local educational agency-

(A) shall notify the child's parents of-

(i) that determination and the reasons for the determination; and

(ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability and to determine the child's educational needs; and

(B) shall not be required to conduct such an assessment unless requested to by the child's parents.

(5) Evaluations before change in eligibility

(A) In general

Except as provided in subparagraph (B), a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

(B) Exception

(i) In general

The evaluation described in subparagraph (A) shall not be required before the termination of a child's eligibility under this subchapter due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for a free appropriate public education under State law.

(ii) Summary of performance

For a child whose eligibility under this subchapter terminates under circumstances described in clause (i), a local educational agency shall provide the child with a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals.

(d) Individualized education programs

(1) Definitions

In this chapter:

(A) Individualized education program

(i) In general

The term "individualized education program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes-

(I) a statement of the child's present levels of academic achievement and functional performance, including-

(aa) how the child's disability affects the child's involvement and progress in the general education curriculum;

(bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; and

(cc) for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives;

(II) a statement of measurable annual goals, including academic and functional goals, designed to-

(aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum; and

(bb) meet each of the child's other educational needs that result from the child's disability;

(III) a description of how the child's progress toward meeting the annual goals described in subclause (II) will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided;

(IV) a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child-

(aa) to advance appropriately toward attaining the annual goals;

(bb) to be involved in and make progress in the general education curriculum in accordance with subclause (I) and to participate in extracurricular and other nonacademic activities; and

(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this subparagraph;

(V) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in subclause (IV)(cc);

(aa) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments consistent with section 1412(a)(16)(A) of this title; and

(bb) if the IEP Team determines that the child shall take an alternate assessment on a particular State or districtwide assessment of student achievement, a statement of why-

(AA) the child cannot participate in the regular assessment; and

(BB) the particular alternate assessment selected is appropriate for the child;

(VII) the projected date for the beginning of the services and modifications described in subclause (IV), and the anticipated frequency, location, and duration of those services and modifications; and

(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter-

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

(bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and

(cc) beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under this chapter, if any, that will transfer to the child on reaching the age of majority under section 1415(m) of this title.

(ii) Rule of construction

Nothing in this section shall be construed to require-

(I) that additional information be included in a child's IEP beyond what is explicitly required in this section; and

(II) the IEP Team to include information under 1 component of a child's IEP that is already contained under another component of such IEP.

(B) Individualized education program team

The term "individualized education program team" or "IEP Team" means a group of individuals composed of-

(i) the parents of a child with a disability;

(ii) not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

(iii) not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;

(iv) a representative of the local educational agency who-

(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(II) is knowledgeable about the general education curriculum; and

(III) is knowledgeable about the availability of resources of the local educational agency;

(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);

(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(vii) whenever appropriate, the child with a disability.

(C) IEP Team attendance

(i) Attendance not necessary

A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting.

A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if-

(I) the parent and the local educational agency consent to the excusal; and

(II) the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.

(iii) Written agreement and consent required

A parent's agreement under clause (i) and consent under clause (ii) shall be in writing.

(D) IEP Team transition

In the case of a child who was previously served under subchapter III, an invitation to the initial IEP meeting shall, at the request of the parent, be sent to the subchapter III service coordinator or other representatives of the subchapter III system to assist with the smooth transition of services.

(2) Requirement that program be in effect

(A) In general

At the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in the agency's jurisdiction, an individualized education program, as defined in paragraph (1)(A).

(B) Program for child aged 3 through 5

In the case of a child with a disability aged 3 through 5 (or, at the discretion of the State educational agency, a 2-year-old child with a disability who will turn age 3 during the school year), the IEP Team shall consider the individualized family service plan that contains the material described in section 1436 of this title, and that is developed in accordance with this section, and the individualized family service plan may serve as the IEP of the child if using that plan as the IEP is-

(i) consistent with State policy; and

(ii) agreed to by the agency and the child's parents.

(C) Program for children who transfer school districts

(i) In general

(I) Transfer within the same State

In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in the same State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.

(II) Transfer outside State

In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in another State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency conducts an evaluation pursuant to subsection (a)(1), if determined to be necessary by such agency, and develops a new IEP, if appropriate, that is consistent with Federal and State law.

(ii) Transmittal of records

To facilitate the transition for a child described in clause (i)-

(I) the new school in which the child enrolls shall take reasonable steps to promptly obtain the child's records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child, from the previous school in which the child was enrolled, pursuant to section 99.31(a)(2) of title 34, Code of Federal Regulations; and

(II) the previous school in which the child was enrolled shall take reasonable steps to promptly respond to such request from the new school.

(3) Development of IEP

(A) In general

In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider-

(i) the strengths of the child;

(ii) the concerns of the parents for enhancing the education of their child;

(iii) the results of the initial evaluation or most recent evaluation of the child; and

(iv) the academic, developmental, and functional needs of the child.

(B) Consideration of special factors

The IEP Team shall-

(i) in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;

(ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP;

(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and

(v) consider whether the child needs assistive technology devices and services.

(C) Requirement with respect to regular education teacher

A regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports, and other strategies, and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(i)(IV).

(D) Agreement

In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child's current IEP.

(E) Consolidation of IEP Team meetings

To the extent possible, the local educational agency shall encourage the consolidation of reevaluation meetings for the child and other IEP Team meetings for the child.

(F) Amendments

Changes to the IEP may be made either by the entire IEP Team or, as provided in subparagraph (D), by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated.

(4) Review and revision of IEP

(A) In general

The local educational agency shall ensure that, subject to subparagraph (B), the IEP Team-

(i) reviews the child's IEP periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved; and

(ii) revises the IEP as appropriate to address-

(I) any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate;

(II) the results of any reevaluation conducted under this section;

(III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B);

(IV) the child's anticipated needs; or

(V) other matters.

(B) Requirement with respect to regular education teacher

A regular education teacher of the child, as a member of the IEP Team, shall, consistent with paragraph (1)(C), participate in the review and revision of the IEP of the child.

(5) Multi-year IEP demonstration

(A) Pilot program

The purpose of this paragraph is to provide an opportunity for States to allow parents and local educational agencies the opportunity for long-term planning by offering the option of developing a comprehensive multi-year IEP, not to exceed 3 years, that is designed to coincide with the natural transition points for the child.

(ii) Authorization

In order to carry out the purpose of this paragraph, the Secretary is authorized to approve not more than 15 proposals from States to carry out the activity described in clause (i).

(I) In general

A State desiring to participate in the program under this paragraph shall submit a proposal to the Secretary at such time and in such manner as the Secretary may reasonably require.

The proposal shall include-

(aa) assurances that the development of a multi-year IEP under this paragraph is optional for parents;

(bb) assurances that the parent is required to provide informed consent before a comprehensive multi-year IEP is developed;

(cc) a list of required elements for each multi-year IEP, including-

(AA) measurable goals pursuant to paragraph (1)(A)(i)(II), coinciding with natural transition points for the child, that will enable the child to be involved in and make progress in the general education curriculum and that will meet the child's other needs that result from the child's disability; and

(BB) measurable annual goals for determining progress toward meeting the goals described in subitem (AA); and

(dd) a description of the process for the review and revision of each multi-year IEP, including-

(AA) a review by the IEP Team of the child's multi-year IEP at each of the child's natural transition points;

(BB) in years other than a child's natural transition points, an annual review of the child's IEP to determine the child's current levels of progress and whether the annual goals for the child are being achieved, and a requirement to amend the IEP, as appropriate, to enable the child to continue to meet the measurable goals set out in the IEP;

(CC) if the IEP Team determines on the basis of a review that the child is not making sufficient progress toward the goals described in the multi-year IEP, a requirement that the local educational agency shall ensure that the IEP Team carries out a more thorough review of the IEP in accordance with paragraph (4) within 30 calendar days; and

(DD) at the request of the parent, a requirement that the IEP Team shall conduct a review of the child's multi-year IEP rather than or subsequent to an annual review.

Beginning 2 years after December 3, 2004, the Secretary shall submit an annual report to the Committee on Education and the Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate regarding the effectiveness of the program under this paragraph and any specific recommendations for broader implementation of such program, including-

(i) reducing-

(I) the paperwork burden on teachers, principals, administrators, and related service providers; and

(II) noninstructional time spent by teachers in complying with this subchapter;

(ii) enhancing longer-term educational planning;

(iii) improving positive outcomes for children with disabilities;

(iv) promoting collaboration between IEP Team members; and

(v) ensuring satisfaction of family members.

(C) Definition

In this paragraph, the term "natural transition points" means those periods that are close in time to the transition of a child with a disability from preschool to elementary grades, from elementary grades to middle or junior high school grades, from middle or junior high school grades to secondary school grades, and from secondary school grades to post-secondary activities, but in no case a period longer than 3 years.

(6) Failure to meet transition objectives

If a participating agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(i)(VIII), the local educational agency shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in the IEP.

(7) Children with disabilities in adult prisons

(A) In general

The following requirements shall not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons:

(i) The requirements contained in section 1412(a)(16) of this title and paragraph (1)(A)(i)(VI) (relating to participation of children with disabilities in general assessments).

(ii) The requirements of items (aa) and (bb) of paragraph (1)(A)(i)(VIII) (relating to transition planning and transition services), do not apply with respect to such children whose eligibility under this subchapter will end, because of such children's age, before such children will be released from prison.

(B) Additional requirement

If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child's IEP Team may modify the child's IEP or placement notwithstanding the requirements of sections 1412(a)(5)(A) of this title and paragraph (1)(A) if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

(e) Educational placements

Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

(f) Alternative means of meeting participation

When conducting IEP team meetings and placement meetings pursuant to this section, section 1415(e) of this title, and section 1415(f)(1)(B) of this title, and carrying out administrative matters under section 1415 of this title (such as scheduling, exchange of witness lists, and status conferences), the parent of a child with a disability and a local educational agency may agree to use alternative means of meeting participation, such as video conferences and conference calls.

# data[].attributes.attachment_link.title
Section 1414 - Individuals with Disabilities Education Act

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Statute/Regs Main " Statute " Subchapter II (Part B) " 1414§1414.

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This section gives information on early interventions for students with disabilities. This section also defines what "child find" is and information about how it operates in each state.

NASET. (2019, July 23). NASET.org Home Page. Retrieved November 20, 2020, from https://www.naset.org/index.php?id=earlyintervention2

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It is difficult to discuss early intervention and early childhood development in the absence of discussing health care concerns. Health issues, health care, the role of the pediatrician in diagnosing developmental delays or disabilities, how to address health costs...the list goes on and on. All are topics worthy of stand-alone Foundations pages. Lacking that at this moment, we will list several "starter" resources below, with the clear recognition that there is much, much more to say. We will, in the future. For now...start with these resources, which will lead you to more.

IFSP is the cornerstone of family involvement and early intervention services provided to infants and toddlers with disabilities. Find out the basics and more below.

Families, most particularly parents, are vital participants in early intervention programming, both at an organizational level determining policies and scope and at the individual level where they are intimately involved in determining the EI services that their own child will receive. How might the EI system promote the active involvement of families at either the organizational and individual levels? Both types of involvement drive directly to the effectiveness of the system overall and for individual children.
Out of EI and into preschool: What's it all about?
Pull a thread and find a minibibliography.
www.nectac.org/~pdfs/pubs/transition.pdf
Transitions From Infant Toddler Services to Preschool Education - Minibibliography is available online from NECTAC. This annotated bibliography presents resources related to transitions from infant-toddler services to preschool education.
2004, 8 pages.

Here are some resources you can use in professional development. There are quite a few. Even those from other states can be useful in developing staff knowledge and competencies.
Assistive technology: Training staff and families.
Find out where to begin in accessing training:
https://www.washington.edu/doit/who-offers-training-assistive-technology-and-design-accessible-technology

Dealing with specific disabilities.
While professional practice guidelines are generally available within the individual professional disciplines (e.g., speech-language pathology, mobility and orientation, hearing habilitation), here are some resources you might find useful for working with children (or parents) who have specific disabilities.

Down syndrome and speech-language treatment.

"Comprehensive Speech and Language Treatment for Infants, Toddlers, and Children with Down Syndrome," is a chapter from a 1998 book called, Down Syndrome: A Promising Future, Together, which appears online with permission of Wiley-Liss, Inc., a subsidiary of John Wiley & Sons, Inc.

More articles can be accessed via the home page (www.ds-health.com/), including "Why Physical Therapy?" and "Occupational Therapy and DS."

Depending on your needs, you may wish to visit the websites of commercial publishers as they offer a very useful range of materials helpful in early intervention, including recommended practices for working with children with specific disabilities, DVDs, training guides, and much more. We have listed some of the "biggies" below to get you started. More are listed in disAbilities Books Press, LLC.

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=“ emotional disturbance child disturbance emotional

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curriculum for children with disabilities

# data[].attributes.attachment_link.title
National Association of Special Education Teachers: Early Childhood Intervention Program - National Association of Special Education Teachers

# data[].attributes.attachment_link.description
It is difficult to discuss early intervention and early childhood development in the absence of discussing health care concerns. Health issues, health care, the role of the pediatrician in diagnosing developmental delays or disabilities, how to address health costs...the list goes on and on. All are topics worthy of stand-alone Foundations pages.

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Dallas ISD for Identification of Special Education Students

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Dallas ISD for Identification of Special Education Students

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Dallas ISD provides notices for identifying students for special education services. This document gives parents information regarding students with disabilities and their rights as a parent/guardian.

Dallas ISD. (n.d.). Special Education / Child Find. Retrieved November 15, 2020, from https://www.dallasisd.org/cms/lib/TX01001475/Centricity/Domain/153/Procedural%20Safeguards%20-%20English%20Access.pdf

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Adaptation for Special Populations

This section gives information for referring a child for special education.

Schools have no more than 15 days to fulfill a request made by a parent asking for evaluation to receive special education services.

19 T.A.C §89.1011

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(a) Referral of students for a full individual and initial evaluation for possible special education services must be a part of the district's overall, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to evidence-based intervention; and other academic or behavior support services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full individual and initial evaluation. This referral for a full individual and initial evaluation may be initiated by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student. (b) If a parent submits a written request to a school district's director of special education services or to a district administrative employee for a full individual and initial evaluation of a student, the school district must, not later than the 15th school day after the date the district receives the request: (1) provide the parent with prior written notice of its proposal to conduct an evaluation consistent with 34 Code of Federal Regulations (CFR), §300.503; a copy of the procedural safeguards notice required by 34 CFR, §300.504; and an opportunity to give written consent for the evaluation; or (2) provide the parent with prior written notice of its refusal to conduct an evaluation consistent with 34 CFR, §300.503, and a copy of the procedural safeguards notice required by 34 CFR, §300.504. (c) Except as otherwise provided in this section, a written report of a full individual and initial evaluation of a student must be completed as follows: (1) not later than the 45th school day following the date on which the school district receives written consent for the evaluation from the student's parent, except that if a student has been absent from school during that period on three or more school days, that period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent; or (2) for students under five years of age by September 1 of the school year and not enrolled in public school and for students enrolled in a private or home school setting, not later than the 45th school day following the date on which the school district receives written consent for the evaluation from the student's parent. (d) The admission, review, and dismissal (ARD) committee must make its decisions regarding a student's initial eligibility determination and, if appropriate, individualized education program (IEP) and placement within 30 calendar days from the date of the completion of the written full individual and initial evaluation report. If the 30th day falls during the summer and school is not in session, the student's ARD committee has until the first day of classes in the fall to finalize decisions concerning the student's initial eligibility determination, IEP, and placement, unless the full individual and initial evaluation indicates that the student will need extended school year services during that summer. (e) Notwithstanding the timelines in subsections (c) and (d) of this section, if the school district received the written consent for the evaluation from the student's parent at least 35 but less than 45 school days before the last instructional day of the school year, the written report of a full individual and initial evaluation of a student must be provided to the student's parent not later than June 30 of that year. The student's ARD committee must meet not later than the 15th school day of the following school year to consider the evaluation. If, however, the student was absent from school three or more days between the time that the school district received written consent and the last instructional day of the school year, the timeline in subsection (c)(1) of this section applies to the date the written report of the full individual and initial evaluation is required. If an initial evaluation completed not later than June 30 indicates that the student will need extended school year services during that summer, the ARD committee must meet as expeditiously as possible. (f) If a student was in the process of being evaluated for special education eligibility by a school district and enrolls in another school district before the previous school district completed the full individual and initial evaluation, the new school district must coordinate with the previous school district as necessary and as expeditiously as possible to ensure a prompt completion of the evaluation in accordance with 34 CFR, §300.301(d)(2) and (e) and §300.304(c)(5). The timelines in subsections (c) and (e) of this section do not apply in such a situation if: (1) the new school district is making sufficient progress to ensure a prompt completion of the evaluation; and (2) the parent and the new school district agree to a specific time when the evaluation will be completed. (g) For purposes of subsections (b), (c), and (e) of this section, school day does not include a day that falls after the last instructional day of the spring school term and before the first instructional day of the subsequent fall school term. (h) For purposes of subsections (c)(1) and (e) of this section, a student is considered absent for the school day if the student is not in attendance at the school's official attendance taking time or at the alternate attendance taking time set for that student. A student is considered in attendance if the student is off campus participating in an activity that is approved by the school board and is under the direction of a professional staff member of the school district, or an adjunct staff member who has a minimum of a bachelor's degree and is eligible for participation in the Teacher Retirement System of Texas.

Source Note: The provisions of this §89.1011 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective February 15, 2018, 43 TexReg 763

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(a) Referral of students for a full individual and initial evaluation for possible special education services must be a part of the district's overall, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to evidence-based intervention; and other academic or behavior support services.

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A.W. v. Jersey City Public Schools

A school district in New Jersey failed to identify a student who had severe dyslexia.

From 1988-2000, the school district failed to provide A.W. with a free appropriate public education (FAPE) under Individuals with Disabilities Education Act (IDEA)

A.W. v. Jersey City Public Schools (486 F.3d 791) 2007

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Plaintiff A.W. is a high school student with a learning disability (severe dyslexia). Defendants are the Jersey City School District, the New Jersey Department of Education, and a number of the entities' employees. Plaintiff alleges that Defendants failed to either identify or account for his condition in a timely fashion, and as a result deprived him of a free appropriate public education for over ten years. Plaintiff's complaint seeks a declaratory judgment that Defendants violated his rights as secured by federal and state law, and seeks financial recovery in the form of compensatory and punitive damages, as well as attorney's fees and costs.

This matter is now before the Court on the motion of Defendant New Jersey Department of Education and its Defendant employees, namely Dr. Jeffrey Osowski, Barbara Gantwerk, and Melinda Zangrillo (collectively, "State Defendants"), to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Defendants contend that they should be dismissed from this action because they are insulated by the doctrine of sovereign immunity, and because Plaintiff failed to exhaust his available administrative procedures.

Each of the foregoing individuals was named as a defendant in his or her official capacity. Defendants Gantwerk and Zangrillo were also sued in their individual capacities.

Defendants had originally argued that Plaintiff's action should also be dismissed on statute of limitations grounds. Defendants subsequently agreed to withdraw their limitations argument for purposes of this motion.

The Court has jurisdiction pursuant to 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. § 1331, 1343, 1367, and 2201. For the following reasons, State Defendants' motion to dismiss is denied.

I. BACKGROUND

A. Procedural History

On January 10, 2001 Plaintiff commenced this action. Plaintiff claims that State Defendants, and others, violated his rights under the Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. ("IDEA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 ("RA"); the Civil Rights Act of 1971, 42 U.S.C. § 1983 ("Section 1983"); Art. VIII, § 4, ¶ 1 of the New Jersey Constitution; and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD").

State Defendants received a pair of extensions of time to answer, move, or otherwise respond to the Complaint. On April 17, 2001, State Defendants timely served Plaintiff with their Motion to Dismiss Plaintiff's Complaint, pursuant to Fed.R.Civ.P. 12(b)(6). In compliance with Appendix N of the Local Rules of Civil Procedure, Defendants filed their completed motion packet with the Court on June 28, 2001. Simultaneously, Plaintiff filed a cross-motion to amend his complaint. Pursuant to Rule 78, the Court took both motions under advisement on July 23, 2001.

In March, 2002, having carefully reviewed the parties' submissions and the relevant law, it became apparent to the Court that Defendants' motion should be denied, and that Plaintiff's cross-motion to amend should be granted. Mindful of the lengthy pendency of the parties' motions, on March 18, 2002 the Court entered an Order denying Defendants' motion and granting Plaintiff's motion. Although the Court had begun preparing an Opinion to explain its decision, so as to expeditiously resolve this matter the Court issued its March 18, 2002 Order before the Opinion was ready for issuance.

This Opinion, which was completed after Plaintiff's motion to amend was granted, refers in every instance to Plaintiff's Amended Complaint, and the causes of action contained therein.

On April 8, 2002, the Court referred this matter to mediation, and stayed all proceedings. On April 11, 2002, State Defendants filed their Answer to Plaintiff's Amended Complaint, as well as a jury demand and cross-claims. On April 17, 2002, before the Court issued this Opinion, State Defendants appealed the Court's March 18, 2002 Order. Defendants' appeal is presently pending. Although Defendants have appealed the Order that this Opinion discusses, the Court has nonetheless elected to issue the Opinion in order to assist the Third Circuit in its review of the Court's March 18, 2002 decision.

B. Factual History

Plaintiff A.W. is a twenty-year-old tenth grade student with severe dyslexia who has been enrolled in the Jersey City Public Schools from September, 1988, when he entered the second grade, through the present. A.W.'s dyslexia, which impairs his ability to read and write, was never diagnosed by Defendants. Consequently, from September, 1988 until May, 2000, Plaintiff did not receive an appropriate educational program and made minimal, if any, progress in the areas of reading, writing, and spelling.

For purposes of Defendants' motion to dismiss, the factual allegations in Plaintiff's pleadings are accepted as true. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 n. 1 (3d Cir. 1987).

At all relevant times, A.W. was eligible for special education and related services under the Individuals with Disabilities Act, and was a qualified individual with a disability under the Rehabilitation Act. During that same time, Defendants received federal financial assistance for educational programs, including funds under the IDEA.

On January 28, 2000, after A.W. obtained an independent educational evaluation diagnosing his condition, the District developed an Individualized Education Program ("IEP") for him, which required specialized reading, writing, and spelling instruction to address his inability to read, write, and spell. As a result, Plaintiff concedes that appropriate educational services were implemented for him in May, 2000.

The Court assumes that A.W. has continued to receive appropriate educational services following the implementation of his IEP.

Prior to the implementation of A.W.'s IEP in 2000, in December 1997, A.W.'s grandmother (who was his legal guardian), participated in the filing of a complaint with the New Jersey Department of Education ("NJDOE") on behalf of A.W. and other Jersey City students with dyslexia. Through that complaint, A.W.'s grandmother brought the specifics of A.W.'s case to the attention of the NJDOE and its employees responsible for the complaint investigation. Those employees included State Defendant Barbara Gantwerk, Director of the Office of Special Education Programs, and Melinda Zangrillo, Coordinator of Compliance.

As a result of the complaint investigation, NJDOE ultimately issued a report in June, 1998. The report concluded the District was noncompliant because it failed to demonstrate that its written reading curricula could be adapted to meet the needs of classified pupils. Despite this finding, NJDOE did not provide A.W. with any relief as a result of the complaint investigation. In part because he failed to receive relief, A.W. now alleges that NJDOE and its employees knew or reasonably should have known of his dyslexia, and should have known that an educational program effective at remediating his condition should have been implemented.

Relevant to the State Defendants' motion to dismiss, A.W.'s Amended Complaint alleges that the State Department of Education violated the IDEA by failing to identify and address his dyslexia (Count I); violated the IDEA by failing to develop and implement a program to deal with dyslexic students, and by failing to train its employees accordingly (Count II); and violated Section 504 of the Rehabilitation Act by denying A.W. a free appropriate public education (Count IV).

A.W.'s Amended Complaint further alleges that State Defendants Osowski, Gantwerk, and Zangrillo (sued in their official capacities), violated the IDEA by failing to identify, address, or provide for A.W.'s dyslexia (Count I). Finally, A.W. alleges that State Defendants Gantwerk and Zangrillo (sued in their individual capacities) should be held liable pursuant to 42 U.S.C. § 1983 for violating his rights as secured by the IDEA and § 504 of the RA, by virtue of their personal participation in the allegedly ineffective investigation of his grandmother's December, 1997 complaint (Count VIII).

II. ANALYSIS

A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for a dismissal based upon the pleader's "failure to state a claim upon which relief can be granted." Since the long-established federal policy of civil litigation is to decide cases on the proofs, district courts generally disfavor Rule 12(b)(6) motions. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965); Panek v. Bogucz, 718 F. Supp. 1228, 1229 (D.N.J. 1989).

In deciding a motion to dismiss for failure to state a claim, all allegations in the pleadings must be accepted as true and the plaintiff must be given the benefit of every favorable inference that can be drawn from those allegations. See Conley v. Gibson, 355 U.S. 41, 48 (1957); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 n. 1 (3d Cir. 1987); Markowitz, 906 F.2d at 103.

Rule 12(b)(6) does not countenance "dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheur v. Rhodes, 416 U.S. 232, 236 (1974). Accepting the facts in the pleadings as true and giving them all reasonable inferences, a court must dismiss under Rule 12(b)(6) "[i]f as a matter of law `it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Neitzke, 490 U.S. at 326-27 State Defendants claim that the causes of action against them should be dismissed because even when all of the facts alleged in Plaintiff's complaint are taken as true, pursuant to the Eleventh Amendment, State Defendants are immune from suits by private citizens for money damages. Plaintiff disagrees, and argues that State Defendants' motion should be denied because Congress, by enacting the RA and the IDEA, validly abrogated the State Defendants' Eleventh Amendment immunity. Plaintiff further contends that even if the State Defendants' immunity from suit was not validly abrogated by Congress, the State nonetheless waived its immunity from suit when it accepted federal funds for educational purposes.

B. Eleventh Amendment Immunity Generally

The Eleventh Amendment to the Constitution of the United States provides that:

[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State or Subjects of any Foreign State.

U.S. Const., Amend. XI.

It is well settled that the Eleventh Amendment provides each state with immunity not only from suits brought by citizens of other states, but also from suits brought by its own citizens. See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974). The Supreme Court has also interpreted Eleventh Amendment immunity to extend to state agencies and instrumentalities, so long as the state is a real party-in-interest. Regents of Univ. of Cal. v. Doe, 519 U.S. 425 (1997); Chisolm v. McManimon, 275 F.3d 315 (3d Cir. 2001). Additionally, the Eleventh Amendment bars suits for money damages against state officials acting in their official capacities. See Edelman, 415 U.S. at 663-67; Will v. Michigan Dep't. of State Police, 491 U.S. 58, 70-71 (1989). Here, there is no dispute that all of the State Defendants are state agencies or state officials entitled to the protection of the Eleventh Amendment.

Case law makes it clear that Eleventh Amendment immunity is not absolute, and that it can at times be circumvented. First, Eleventh Amendment immunity can be abrogated by Congress, against the will of the individual states. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Alternatively, a state can elect to voluntarily waive its immunity from suit under the Eleventh Amendment. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999).

The US Supreme Court established a two-part test to determine whether Congress has abrogated the States' Eleventh Amendment immunity. According to Seminole Tribe, in order to abrogate the States' sovereign immunity, Congress must (1) unequivocally express its intent to abrogate the immunity; and (2) have acted pursuant to a valid exercise of power. 517 U.S. at 44.

Here, it is undisputed that Congress unequivocally expressed its intent to abrogate the States' sovereign immunity by the plain language of the IDEA and the RA. Therefore, the first part of the Seminole Tribe test has been satisfied. Thus, the central abrogation issue is whether Congress enacted these statutes pursuant to a valid exercise of power.

20 U.S.C. § 1403(a) provides "A state shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter."

42 U.S.C. § 2000d-7(a)(1) provides "A State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act." See also, Doe v. Div. Of Youth Family Svcs., 148 F. Supp.2d 462, 491 n.5 (D.N.J. 2001)

State Defendants argue that Congress overstepped its bounds when it sought to abrogate the states' immunity from IDEA and RA suits. Defendants note that in recent years, the Supreme Court has invalidated six separate statutes as exceeding congressional authority in this area: City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious Freedom Restoration Act of 1993); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (Patent and Plant Variety Protection Remedy Clarification Act); College Savings Bank v. Florida Prepaid, 527 U.S. 666 (1999) (Trademark Remedy Clarification Act); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act); and Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) (Title I of the Americans with Disabilities Act).

Building on the foregoing decisions, State Defendants have assembled an intricate and scholarly argument to support their position that the IDEA and the RA should be added to the expanding list of statutes with unconstitutional abrogation provisions. Plaintiff disagrees, and argues at length that both the IDEA and RA satisfy the general test for abrogation set out by the Supreme Court, and are valid exercises of Congressional power.

Neither the Supreme Court nor the Third Circuit have specifically addressed the issue of whether the IDEA and the RA validly abrogate states' immunity. The appellate court that addressed the issue most recently, the Eighth Circuit, concluded that Congress had not validly abrogated the states' immunity under either the IDEA or the RA. Bradley v. Arkansas Dep't. of Educ., et al., 189 F.3d 745, 755 (8th Cir. 1999), rev'd on other grounds sub nom, Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en banc), cert den. Arkansas Dept. of Education v. Jim C., 533 U.S. 949 (2001). In doing so, the Bradley/ Jim C. decision went against recent rulings in other circuits which concluded that Congress had validly abrogated the states' immunity. See, e.g., Amos v. Maryland Dep't of Pub. Safety Correctional Svces., 178 F.3d 212, 222-23 (4th Cir. 1999), decision vacated and rehearing en banc granted, ___ F.3d ___ (Dec. 28, 1999); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997).

The Eighth Circuit also concluded that even though Congress had not validly abrogated the states' immunity, the state (Arkansas, in that case) could still be held liable because it had waived its immunity from suit under both the RA and the IDEA.

Given the preceding conflict in other circuits' jurisprudence and the absence of any binding precedent to clarify matters, the Court finds itself in a predicament where it has been asked to choose between the parties' arguments either in favor or against abrogation. Fortunately, the Court need not lend its voice to the growing abrogation muddle by picking one side or the other, for it is apparent to the Court that Defendants' motion to dismiss must be denied on other grounds. Specifically, the Court finds that if the allegations in Plaintiff's Amended Complaint are assumed to be true, then New Jersey has waived its immunity from IDEA and RA suits.

As previously noted, the Supreme Court has determined that a state may voluntarily consent to waive the immunity provided to it under the Eleventh Amendment. College Savings Bank, 527 U.S. at 670; Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d Cir. 2000). In order for waiver to be valid, there must be an "intentional relinquishment or abandonment of a known right or privilege." Id. at 682 ( quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

One way for a state to waive its immunity is by voluntarily participating in federal spending programs where Congress has conditioned such participation on the state's consent to waive its sovereign immunity. College Savings Bank, 527 U.S. at 686; Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000); Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999). Congress' grant to states of conditional funds is "in the nature of a contract," the legitimacy of which "rests on whether the State voluntarily and knowingly accepts the terms." Bell Atlantic MD, Inc. v. MCI WorldCom, Inc., 240 F.3d 279 (4th Cir 2001) (citing Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).

Therefore, in order for the waiver to be valid, Congress must "manifest a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1984). Additionally, the state must voluntarily participate in the program by accepting federal funds under the Act. College Savings Bank, 527 U.S. at 686. Finally, the requirement that a state waive its immunity for receipt of funds must not be so coercive as to amount to unconstitutional compulsion. Id. at 687 ( citing South Dakota v. Dole, 483 U.S. 203, 211 (1987)); Jim C., 235 F.3d at 1081.

C. Waiver of Immunity for Rehabilitation Act Claims

The Supreme Court in Atascadero held that Congress had not unambiguously expressed its intent to abrogate the States' Eleventh Amendment immunity in the Rehabilitation Act, and that the States accordingly were not "subject to suit in federal court by litigants seeking retroactive monetary relief under §§ 504." 473 U.S. at 235. Congress subsequently amended the RA in response to Atascadero, providing:

(1) A State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1).
The issue is whether this amended provision manifests a clear intent to condition a state's participation on its consent to waive its Eleventh Amendment immunity. State Defendants argue that it does not. They contend that the word "waiver" does not appear anywhere in the provision. Nor are there any words indicating that acceptance of funds is "conditioned" upon the state's waiver of immunity. Accordingly, State Defendants contend that while this language may constitute an attempt at an abrogation provision, it does not constitute a valid waiver provision.

The Third Circuit, however, recently said that a statute need not "include magic words such as `waiver' or `immunity' or `suit'" in order to constitute a valid waiver provision. MCI Telecommunication Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 513 (3d Cir. 2001). Indeed, the Supreme Court, in dicta, characterized the amended provision as "an unambiguous waiver of the States' Eleventh Amendment immunity," recognizing that Congress, in response to Atascadero, had crafted the sort of unequivocal notice of waiver that precedent demanded. Lane v. Pena , 518 U.S. 187, 198 (1996).

Although Defendants baldy assert that the language of 42 U.S.C. § 2000d-7(a)(1) "is insufficient to manifest a clear intent to condition participation in the Act's programs on a state's consent to waive its constitutional immunity," (Defendants' Reply Brief, p. 6), several circuit courts of appeal and district courts within this circuit have expressly found that Section 504, as amended, contains an unambiguous waiver of the States' Eleventh Amendment immunity. See, e.g., Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 113-14 (2d Cir. 2001); Jim C., 235 F.3d at 1082; Litman, 186 F.3d at 554; Clark, 123 F.3d at 1271; Bowers v. National Collegiate Athletic Ass'n. Act, Inc., 171 F. Supp.2d 389 (D.N.J. 2001); Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509, 521 (E.D.Pa. 2001); F.P., et al. v. State of New Jersey, Department of Education, et al., Civ. No. 00-2217 (JWB), slip op. at p. 16 (D.N.J. June 27, 2001); M.A. v. Newark Public Schools, et al., Civ. No. 01-3389 (KSH), bench ruling (D.N.J. Feb. 6, 2002). In fact, Defendants have not made this Court aware of any decision in any other court that has held the RA's waiver provision to be invalid. Accordingly, this Court concludes that Section 504 unambiguously expresses Congress' intent to condition the grant of federal funds on a state's consent to suit.

Defendants do cite to the Eighth Circuit's decision in Bradley, which held in relevant part that Arkansas had not waived its immunity from RA suits. As Defendants concede, however, the RA waiver portion of the Bradley decision was later overruled in Jim C., after a rehearing en banc. Accordingly, although Bradley might once have lent support to Defendants' argument, it has subsequently been negated by Jim C., which squarely rejected the argument now advanced by Defendants.

Defendants alternatively argue that even if the language of the RA constitutes an otherwise valid waiver provision, the financial inducements employed by Congress were so coercive as to make waiver involuntary. However, courts have consistently found this argument unpersuasive, finding that "with section 504, Congress has not crossed the line separating pressure and compulsion." Frederick, 157 F. Supp.2d at 523, citing, Jim C., 235 F.3d at 1081-82; see also Bowers, 171 F. Supp.2d at 407. The Court agrees, and finds that to avoid suit in federal court for its educational programs' allegedly discriminatory conduct against the handicapped, a state could simply decline federal funding for it educational programs if it wished. See Frederick, 157 F. Supp.2d at 523; Jim C., 235 F.3d at 1082; MCI, 271 F.3d at 491. Absent any precedent to the contrary, the Court cannot conclude that New Jersey's waiver of immunity in exchange for receipt of federal funds was sufficiently the result of coercion so as to amount to unconstitutional compulsion.

In concluding that States accepting federal funds under the RA waive their Eleventh Amendment immunity, this Court notes that such immunity is waived only with regard to the individual agency that receives federal funding. Jim C., 235 F.3d at 1081. Plaintiffs allege, and State Defendants do not dispute, that State Defendants are the recipient of federal educational funding relevant to Plaintiff's claims under the RA. Assuming the truth of these allegations, as a Court must on a motion to dismiss, State Defendants' acceptance of funds constitutes a valid waiver of immunity, which precludes dismissal of Plaintiffs' claims under the RA.

D. Waiver of Immunity for IDEA Claims

Similarly, section 604(a) of the IDEA, 20 U.S.C. § 1403(a), provides that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter." Courts have considered this an unequivocal expression of waiver. See John T. ex rel. Robert T. v. Iowa Dept. of Educ., 258 F.3d 860, 864 (8th Cir. 2001); Board of Educ. of Oak Park v. Kelly E., 207 F.3d 931, 935 (7th Cir. 1999); Bradley, 189 F.3d at 753. The absence of words such as "consent" or "waiver" from the IDEA should not matter. Kelly E., 207 F.3d at 935 (the "[o]ne string attached to money under the IDEA is submitting to suit in federal court.")

Plaintiffs allege, and State Defendants do not dispute, that State Defendants are the recipient of federal funding under the IDEA. Assuming the truth of these allegations, as a Court must on a motion to dismiss, State Defendants' acceptance of funds constitutes a valid waiver of immunity, which precludes dismissal of Plaintiffs' claims under the IDEA.

E. Exhaustion of Administrative Procedures

State Defendants next argue that even if Eleventh Amendment immunity does not present a bar to Plaintiff's suit, the claims against them should still be dismissed because Plaintiff failed to exhaust his available administrative procedural remedies. Plaintiff does not dispute that he failed to request a due process hearing as required by the IDEA, but argues that given the factual circumstances of his case, the exhaustion requirement should be excused.

The IDEA requires that a plaintiff exhaust available administrative remedies prior to filing a court action seeking relief. 20 U.S.C.A. § 1415(i)(2); W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995). Although the exhaustion requirement is not absolute, it "may not be circumvented by casting an IDEA claim as a § 1983 action predicated on IDEA." Matula, 67 F.3d at 495. Therefore, even though Plaintiff's action contains IDEA, RA, and § 1983 claims, Defendants argue that the entire action should be dismissed as a result of Plaintiff's failure to request a due process hearing.

The Third Circuit has carved out a limited number of exceptions to the administrative exhaustion requirement. These include circumstances where exhaustion would be futile and inadequate, see, e.g., Komninos v. Upper Saddle River Bd. Of Ed., 13 F.3d 775, 778 (3d Cir. 1994); and where the administrative agency cannot grant the relief sought. See, e.g. Beth V. v. Carroll, 87 F.3d 80, 88 (3d Cir. 1994); Matula, 67 F.3d at 496.

As Plaintiff rightly notes, the compensatory and punitive damages he seeks are not available remedies in administrative proceedings. Mindful that monetary damages are available under § 1983 but not under the IDEA, the Third Circuit has previously held that "where the relief sought in a civil action is not available in an IDEA administrative proceeding, recourse to such proceedings would be futile and the exhaustion requirement is excused." Matula, 67 F.3d at 496.

"Although exhaustion cannot be waived whenever a plaintiff seeks monetary damages rather than relief that is available under the administrative scheme, where there is no administrative remedy for a wrong that the plaintiff suffered, exhaustion is futile and may be waved." Plasencia v. California, 29 F. Supp.2d 1145, 1150 (C.D.Cal. 1998) ( citing Matula). In this case, the Court will excuse the exhaustion requirement, because the relief sought by Plaintiff could not now be obtained via a due process hearing. Although such a hearing would once have been the ideal forum for Plaintiff's claims, Plaintiff's dyslexia has now been identified and a suitable IEP implemented.

Plaintiff does not seek to challenge his IEP, his educational placement going forward, or any other aspect of his present educational circumstances. If in addition to money damages Plaintiff also sought a change in his present or future educational circumstances, a due process hearing would have real benefits, despite the fact that Plaintiff's claims for money damages could not also be addressed at the hearing. Instead, Plaintiff seeks a declaration that his rights were violated in the past, and seeks monetary relief to make him whole for injuries allegedly suffered as a result of Defendants' past failures.

Because an administrative body could not redress Plaintiff's alleged injuries or punish Defendants' alleged past wrongs, it would be futile to now subject Plaintiff to administrative procedures in this case. Although the Court is very aware that the IDEA's exhaustion requirement should only rarely be excused, see Matula, 67 F.3d at 496, the Court finds that Plaintiff's case presents one of the handful of exceptional circumstance worthy of doing so.

Because of the facts of Plaintiff's case, the Court finds N.B. v. Alachua County School Board, 84 F.3d 1376 (11th Cir. 1996) (a case quoted at length by Defendants) to be inapposite. In N.B., a deaf student challenged a school district's busing practice without first having exhausted her administrative remedies. The Eleventh Circuit declined to excuse plaintiff's failure, and dismissed the action, even though the plaintiff also sought money damages that were unavailable in a due process hearing. Tacit in the Eleventh Circuit's decision was the fact that an administrative proceeding could still have ended the discriminatory practice and returned the student to school, which would have given the student meaningful, albeit partial, relief. Distinct from the facts in N.B., because no meaningful partial relief would be available to Plaintiff A.W. in a due process hearing, the Court finds waiver of the exhaustion requirement justified.

F. Plaintiff's § 1983 Claims

Finally, the Court must address whether Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 are independently viable. State Defendants originally moved to dismiss the 42 U.S.C. § 1983 claims contained in A.W.'s Complaint on a variety of grounds that the Court need not restate here. By way of response to Defendants' motion, Plaintiff conceded that defects existed in some of his § 1983 claims as pled, and submitted his Amended Complaint, which sought to either correct or withdraw the defective § 1983 claims. Having granted Plaintiff's motion to amend his complaint, the Court now has before it only one argument relevant to Plaintiff's § 1983 claims that has not been rendered moot. Specifically, Defendants contend that Plaintiff's § 1983 claim against Defendant Gantwerk should be dismissed, because Plaintiff's complaint contains only conclusory allegations about Defendant Gantwerk's individual conduct, which was at best supervisory.

Defendant has argued that § 1983 liability can not attach for conduct that is merely supervisory.

Having reviewed the Amended Complaint, the Court does not accept Defendants' argument. The Court is mindful that "all the rules require is a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Accepting all of Plaintiff's allegations as true for purposes of Defendants' motion to dismiss, the Court finds that Plaintiff has put forth a valid § 1983 claim against Defendant Gantwerk, premised on her direct participation in the investigation of his grandmother's complaint. Although this claim may ultimately be disposed of via a motion for summary judgment, at the very least Plaintiff should be given the opportunity to substantiate his claim via discovery. Accordingly, Defendants' motion to dismiss Plaintiff's § 1983 claim is denied.

III. CONCLUSION

For all of the foregoing reasons, Defendants' motion to dismiss Plaintiff's Complaint is denied.

An appropriate Order was entered on March 18, 2002.

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Plaintiff A.W. is a high school student with a learning disability (severe dyslexia). Defendants are the Jersey City School District, the New Jersey Department of Education, and a number of the entities' employees. Plaintiff alleges that Defendants failed to either identify or account for his condition in a timely fashion, and as a result deprived him of a free appropriate public education for over ten years.

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Fourteenth Amendment

In the 14th Amendment, this law provides equal protection and due process of the law.

States must provide equal access to schooling regardless of a disability.

U.S. Const. amend. XIV

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Fourteenth Amendment | Browse | Constitution Annotated | Congress.gov | Library of Congress

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The Constitution Annotated provides a legal analysis and interpretation of the United States Constitution based on a comprehensive review of Supreme Court case law.