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Ethical Principle

According to the American School Counselor Association's (ASCA) Ethical Standards for Counselors (2016) standard E.a. and E.b., if a counselor seriously doubts the ethical behavior of a colleague, he or she must speak directly with the person whose behavior is in question to work to resolve the concern.  The school counselor should also speak with other professional colleagues about the concern, seeking another opinion about whether the behavior seems unethical (ASCA, 2016).

This standard explains what to do in the event that a parent seeks advice from the school counselor if they feel their child is not receiving the appropriate special education services or is not appropriately placed in the least restrictive environment.

Reference

American School Counselor Association (ASCA). (2016). ASCA ethical standards for counselors. Alexandria, VA.

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Non-law Source
Article
Understanding the Concerns of Parents of Students with Disabilities:  Challenges and Roles for School Counselors.

The first step in serving as an advocate is understanding the concerns of parents of children with disabilities. This informative article helps the school counselor understand the perspective of the parent and student with disabilities by recognizing their grief, understanding their protectiveness, and placing importance on friendships and focusing on their abilities rather than their disabilities (Taub, 2017).

Reference

Taub, D. (2017, August 23). Understanding the concerns of parents of students with disabilities: Challenges and roles for school counselors. Retrieved July 15, 2020, from https://www.readingrockets.org/article/understanding-concerns-parents-students-disabilities-challenges-and-roles-school-counselors

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Understanding the Concerns of Parents of Students with Disabilities: Challenges and Roles for School Counselors

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Professional school counselors can be more effective in their work with parents of students with disabilities - as well as with the students themselves, their teachers, and other students - if they understand parent perspectives. Parents' areas of concern are described, and implications for school counselors are discussed.

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Best Practices

Finding the LRE for each student with a disability is a process of figuring out which classroom supports prove successful for their individual needs.

Providing students who have disabilities with an environment where they can learn alongside their non-disabled peers as much as possible is the law.

Students who are not successful in the general education classroom despite efforts to find classroom supports that are effective will be provided other learning environments or a combination of several.

These decisions are made by the ARD committee, which consists of parents, teachers, district representatives, specialists, special education instructors, and other necessary members.

As a school counselor, the first step in advocating for the child and parents of children with disabilities is to understand their concerns.

Inclusion benefits everyone in the classroom by providing each child with a free and appropriate education (FAPE) as well as fostering a classroom community of diversity, respect, caring, cooperation, and valuing each others differences.

Today, schools are facing difficult times as they work to provide appropriate and effective supports for students with disabilities as they likely will be learning from home for at least part of the upcoming school year.

Legally, a school counselor must take action if he or she feels that a colleague is behaving in an unethical way. The first steps are to consult another professional colleague about whether the behavior is unethical and to professionally approach the person to address the concern.

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Texas Administrative Code
Administrative Law

The Texas Administration Code (TAC) outlines the options for educational settings that should be provided to students with disabilities.  According to TAC, students with disabilities should be in the mainstream classroom as long as they can be successful with services such as:

direct instruction

helping teachers

co-teaching

interpreters

education aides

curriculum modifications

instructional modifications

positive behavior supports and interventions

staff development

reduction in class ratio

Reference

Instructional Arrangements and Settings, 19.  Tex. Admin. Code §89.63(c)(1)

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Chapter 89. Adaptations for Special Populations
Subchapter D. Special Education Services and Settings

89.61. Contracting for Residential Educational Placements for Students with Disabilities.

(a) Residential placement. A school district may contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education (FAPE).

(1) A school district may contract for a residential placement of a student only with either public or private residential facilities which maintain current and valid licensure by the Texas Department of Aging and Disability Services, Texas Department of Family and Protective Services, or Department of State Health Services for the particular disabling condition and age of the student. A school district may contract for an out-of-state residential placement in accordance with the provisions of subsection (c)(3) of this section.

(2) Subject to subsections (b) and (c) of this section, the district may contract with a residential facility to provide some or all of the special education services listed in the contracted student's individualized education program (IEP). If the facility provides any educational services listed in the student's IEP, the facility's education program must be approved by the commissioner of education in accordance with subsection (c) of this section.

(3) A school district which intends to contract for residential placement of a student with a residential facility under this section shall notify the Texas Education Agency (TEA) of its intent to contract for the residential placement through the residential application process described in subsection (b) of this section.

(4) The school district has the following responsibilities when making a residential placement.

(A) Before the school district places a student with a disability in, or refers a student to, a residential facility, the district shall initiate and conduct a meeting of the student's ARD committee to develop an IEP for the student in accordance with 34 Code of Federal Regulations, 300.320-300.325, state statutes, and commissioner of education rules.

(B) For each student, the services which the school district is unable to provide and which the facility will provide shall be listed in the student's IEP.

(C) For each student, the ARD committee shall establish, in writing, criteria and estimated timelines for the student's return to the school district.

(D) The appropriateness of the facility for each student residentially placed shall be documented in the IEP. General screening by a regional education service center is not sufficient to meet the requirements of this subsection.

(E) The school district shall make an initial and an annual on-site visit to verify that the residential facility can, and will, provide the services listed in the student's IEP which the facility has agreed to provide to the student.

(F) For each student placed in a residential facility (both initial and continuing placements), the school district shall verify, during the initial residential placement ARD committee meeting and each subsequent annual ARD committee meeting, that:

(i) the facility meets minimum standards for health and safety;

(ii) residential placement is needed and is documented in the IEP; and

(iii) the educational program provided at the residential facility is appropriate and the placement is the least restrictive environment for the student.

(G) The placement of more than one student, in the same residential facility, may be considered in the same on-site visit to a facility; however, the IEP of each student must be individually reviewed and a determination of appropriateness of placement and service must be made for each student.

(H) When a student who is residentially placed by a school district changes his residence to another Texas school district, and the student continues in the contracted placement, the school district which negotiated the contract shall be responsible for the residential contract for the remainder of the school year.

(b) Application approval process. Requests for approval of state and federal funding for residentially placed students shall be negotiated on an individual student basis through a residential application submitted by the school district to the TEA.

(1) A residential application may be submitted for educational purposes only. The residential application shall not be approved if the application indicates that the:

(A) placement is due primarily to the student's medical problems;

(B) placement is due primarily to problems in the student's home;

(C) district does not have a plan, including timelines and criteria, for the student's return to the local school program;

(D) district did not attempt to implement lesser restrictive placements prior to residential placement (except in emergency situations as documented by the student's ARD committee);

(E) placement is not cost effective when compared with other alternative placements; and/or

(F) residential facility provides unfundable/unapprovable services.

(2) The residential placement, if approved by the TEA, shall be funded as follows:

(A) the education cost of residential contracts shall be funded with state funds on the same basis as nonpublic day school contract costs according to Texas Education Code, 42.151;

(B) related services and residential costs for residential contract students shall be funded from a combination of fund sources. After expending any other available funds, the district must expend its local tax share per average daily attendance and 25% of its Individuals with Disabilities Education Act, Part B, (IDEA-B) formula tentative entitlement (or an equivalent amount of state and/or local funds) for related services and residential costs. If this is not sufficient to cover all costs of the residential placement, the district through the residential application process may receive additional IDEA-B discretionary funds to pay the balance of the residential contract placement(s) costs; and

(C) funds generated by the formula for residential costs described in subsection (b)(2)(B) of this section shall not exceed the daily rate recommended by the Texas Department of Family and Protective Services for the specific level of care in which the student is placed.

(c) Approval of the education program for facilities which provide educational services. Residential facilities which provide educational services must have their educational programs approved for contracting purposes by the commissioner of education.

(1) If the education program of a residential facility which is not approved by the commissioner of education is being considered for a residential placement by a local school district, the school district should notify the TEA in writing of its intent to place a student at the facility. The TEA shall begin approval procedures and conduct an on-site visit to the facility within 30 calendar days after the TEA has been notified by the local school district. Approval of the education program of a residential facility may be for one, two, or three years.

(2) The commissioner of education shall renew approvals and issue new approvals only for those facilities which have contract students already placed or which have a pending request for residential placement from a school district. This approval does not apply to residential facilities which only provide related services or residential facilities in which the local accredited school district where the facility is located provides the educational program.

(3) School districts which contract for out-of-state residential placement shall do so in accordance with the rules for in-state residential placement in this section, except that the facility must be approved by the appropriate agency in the state in which the facility is located, rather than by the commissioner of education in Texas.

Statutory Authority: The provisions of this §89.61 issued under the Texas Education Code, §42.151.

Source: The provisions of this 89.61 adopted to be effective September 1, 2000, 25 TexReg 4530; amended to be effective August 24, 2010, 35 TexReg 7212.

89.62. Support of Students Enrolled in the Texas School for the Blind and Visually Impaired and Texas School for the Deaf.

(a) For each student enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf, the school district responsible for providing appropriate special education and related services to the student shall share the cost of the student's education (excluding the summer programs) as provided under the Texas Education Code, 30.003.

(1) The information required in accordance with the Texas Education Code, 30.003(d), must be submitted in a form prescribed by the commissioner of education within 30 calendar days after the student enrolls in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf.

(2) School districts required to remit their shares to the Texas Education Agency in accordance with the Texas Education Code, 30.003(d), shall do so within 60 days of notification by the commissioner of education.

(b) School districts shall provide, annually, in writing to each parent or legal guardian of an eligible student with visual or auditory impairments, the information specified in the Texas Education Code, 30.004(a)(1-3), before considering the student's placement for special education services.

Statutory Authority: The provisions of this §89.62 issued under the Texas Education Code, §§30.003, 30.004, and 42.151.

Source: The provisions of this 89.62 adopted to be effective September 1, 1996, 21 TexReg 5690.

89.63. Instructional Arrangements and Settings.

(a) Each local school district shall be able to provide services with special education personnel to students with disabilities in order to meet the special needs of those students in accordance with 34 Code of Federal Regulations, 300.114-300.118.

(b) Subject to 89.1075(e) of this title (relating to General Program Requirements and Local District Procedures) for the purpose of determining the student's instructional arrangement/setting, the regular school day is defined as the period of time determined appropriate by the admission, review, and dismissal (ARD) committee.

(c) Instructional arrangements/settings shall be based on the individual needs and individualized education programs (IEPs) of eligible students receiving special education services and shall include the following.

(1) Mainstream. This instructional arrangement/setting is for providing special education and related services to a student in the regular classroom in accordance with the student's IEP. Qualified special education personnel must be involved in the implementation of the student's IEP through the provision of direct, indirect and/or support services to the student, and/or the student's regular classroom teacher(s) necessary to enrich the regular classroom and enable student success. The student's IEP must specify the services that will be provided by qualified special education personnel to enable the student to appropriately progress in the general education curriculum and/or appropriately advance in achieving the goals set out in the student's IEP. Examples of services provided in this instructional arrangement include, but are not limited to, direct instruction, helping teacher, team teaching, co-teaching, interpreter, education aides, curricular or instructional modifications/accommodations, special materials/equipment, positive classroom behavioral interventions and supports, consultation with the student and his/her regular classroom teacher(s) regarding the student's progress in regular education classes, staff development, and reduction of ratio of students to instructional staff.

(2) Homebound. This instructional arrangement/setting is for providing special education and related services to students who are served at home or hospital bedside.

(A) Students served on a homebound or hospital bedside basis are expected to be confined for a minimum of four consecutive weeks as documented by a physician licensed to practice in the United States. Homebound or hospital bedside instruction may, as provided by local district policy, also be provided to chronically ill students who are expected to be confined for any period of time totaling at least four weeks throughout the school year as documented by a physician licensed to practice in the United States. The student's ARD committee shall determine the amount of services to be provided to the student in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (b) of this section.

(B) Home instruction may also be used for services to infants and toddlers (birth through age 2) and young children (ages 3-5) when determined appropriate by the child's individualized family services plan (IFSP) committee or ARD committee. This arrangement/setting also applies to school districts described in Texas Education Code, 29.014.

(3) Hospital class. This instructional arrangement/setting is for providing special education instruction in a classroom, in a hospital facility, or a residential care and treatment facility not operated by the school district. If the students residing in the facility are provided special education services outside the facility, they are considered to be served in the instructional arrangement in which they are placed and are not to be considered as in a hospital class.

(4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services whether in a regular education classroom or in a setting other than a regular education classroom. When the only special education or related service provided to a student is speech therapy, then this instructional arrangement may not be combined with any other instructional arrangement.

(5) Resource room/services. This instructional arrangement/setting is for providing special education and related services to a student in a setting other than regular education for less than 50% of the regular school day.

(6) Self-contained (mild, moderate, or severe) regular campus. This instructional arrangement/setting is for providing special education and related services to a student who is in a self-contained program for 50% or more of the regular school day on a regular school campus.

(7) Off-home campus. This instructional arrangement/setting is for providing special education and related services to the following, including, but not limited to, students at South Texas Independent School District and Windham Independent School District:

(A) a student who is one of a group of students from more than one school district served in a single location when a free appropriate public education is not available in the respective sending district;

(B) a student in a community setting or environment (not operated by a school district) that prepares the student for postsecondary education/training, integrated employment, and/or independent living in coordination with the student's individual transition goals and objectives, including a student with regularly scheduled instruction or direct involvement provided by school district personnel, or a student in a facility not operated by a school district (other than a nonpublic day school) with instruction provided by school district personnel; or

(C) a student in a self-contained program at a separate campus operated by the school district that provides only special education and related services.

(8) Nonpublic day school. This instructional arrangement/setting is for providing special education and related services to students through a contractual agreement with a nonpublic school for special education.

(9) Vocational adjustment class/program. This instructional arrangement/setting is for providing special education and related services to a student who is placed on a job (paid or unpaid unless otherwise prohibited by law) with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP. This instructional arrangement/setting shall be used in conjunction with the student's individual transition goals and only after the school district's career and technical education classes have been considered and determined inappropriate for the student.

(10) Residential care and treatment facility (not school district resident). This instructional arrangement/setting is for providing special education instruction and related services to students who reside in care and treatment facilities and whose parents do not reside within the boundaries of the school district providing educational services to the students. In order to be considered in this arrangement, the services must be provided on a school district campus. If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education.

(11) State supported living center. This instructional arrangement/setting is for providing special education and related services to a student who resides at a state supported living center when the services are provided at the state supported living center location. If services are provided on a local school district campus, the student is considered to be served in the residential care and treatment facility arrangement/setting.

(d) The appropriate instructional arrangement for students from birth through the age of two with visual and/or auditory impairments shall be determined in accordance with the IFSP, current attendance guidelines, and the agreement memorandum between the Texas Education Agency (TEA) and the Department of Assistive and Rehabilitative Services (DARS) Early Childhood Intervention (ECI) Services.

(e) For nonpublic day school placements, the school district or shared service arrangement shall submit information to the TEA indicating the students' identification numbers, initial dates of placement, and the names of the facilities with which the school district or shared service arrangement is contracting. The school district or shared service arrangement shall not count contract students' average daily attendance as eligible. The TEA shall determine the number of contract students reported in full-time equivalents and pay state funds to the district according to the formula prescribed in law.

(f) Other program options which may be considered for the delivery of special education and related services to a student may include the following:

(1) contracts with other school districts; and

(2) other program options as approved by the TEA.

Statutory Authority: The provisions of this 89.63 issued under the Texas Education Code, 42.151.

Source: The provisions of this 89.63 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 2000, 25 TexReg4531; amended to be effective August 24, 2010, 35 TexReg 7212; amended to be effective January 1, 2015, 39 TexReg 10443.

For additional information, email rules@tea.state.tx.us.

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Chapter 89. Adaptations for Special Populations Subchapter D. Special Education Services and Settings 89.61. Contracting for Residential Educational Placements for Students with Disabilities. (a) Residential placement. A school district may contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education (FAPE).

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T.R. v. Kingwood Township (3rd Cir. 2000)
Judicial Law

This case established that the least restrictive environment educates the disabled child with their non-disabled peers to the greatest extent possible, and in the same school that they would regularly attend if they were non-disabled.  In this case, a child was placed in a classroom that consisted of half of the students being disabled and the other half were non-disabled.  The court found that this learning environment did not create the least restrictive environment.

Reference

T.R. v. Kingwood Township, 205 F.3d 572 (3rd Cir. 2000)

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KINGWOOD TOWNSHIP BOARD OF EDUCATION, HUNTERDON CO., NEW JERSEY

On Appeal from the United States District Court for the District of New Jersey

District Judge: Honorable Mary L. Cooper

Argued: November 18, 1999

Filed: March 9, 2000

Before: ALITO, BARRY, and STAPLETON, Circuit Judges.

ALITO, Circuit Judge:

Plaintiff N.R., through his parents, T.R. and E.M.R., brought this action against the Kingwood Township Board of Education ("the Board") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.SS 1400-91 (1994), requesting reimbursement for private school tuition and support services. N.R. claims that the Board's proposed placement failed to provide him with a meaningful educational benefit in the least restrictive environment, as required by the IDEA. The District Court granted summary judgment in favor of the Board.

We affirm the District Court's holding that the Kingwood placement provided N.R. with a sufficient educational benefit to constitute a "free and appropriate public education." However, we vacate the court's holding that the Kingwood placement constituted the least restrictive environment, and we remand for a determination of whether the Board failed to consider any appropriate, state-qualified alternate placements within a reasonable distance of N.R's residence. ²

N.R. was born on September 7, 1991, and was classified as preschool handicapped in 1994. During the summer of 1996, N.R.'s parents met with Board officials to discuss an Individualized Education Program ("IEP") for N.R. for the 1996-97 school year. The Board's child study team determined that N.R. had the skills to begin kindergarten in the fall of 1996 and recommended his placement in the Kingwood School's regular kindergarten program. On August 2, 1996, however, T.R. and E.M.R. rejected this proposed placement, stating that they planned to send N.R. to preschool for another year. ¹

At that time, Kingwood Township did not offer a regular preschool program for non-disabled children. Rather, the Township offered a single, half-day preschool class composed of half disabled children and half non-disabled children. The Board drafted a new IEP which provided for N.R.'s placement in this class, with afternoon placement in the school's resource room. N.R.'s parents rejected this proposal and informed the Board that they planned to have N.R. spend the next year at the Rainbow Rascals Learning Center ("Rainbow Rascals"), a private daycare center that N.R. had attended the previous year. At the time, Rainbow Rascals was not accredited as a preschool by the State of New Jersey or by any independent educational accreditation agency. Nevertheless, T.R. and E.M.R. requested that the Board pay for N.R.'s tuition at Rainbow Rascals and provide supplemental special education services there.

The Board filed for due process, seeking a determination that its 1996-97 IEP provided N.R. with a free appropriate public education in the least restrictive environment as required by the IDEA. The Administrative Law Judge found that Kingwood Township's kindergarten program satisfied the IDEA's requirements and that the Board should not be liable for the parents' decision to keep N.R. at Rainbow Rascals.

In April 1997, N.R.'s parents filed suit on his behalf in District Court. They alleged, inter alia, that the ALJ had erred in finding that the Board's proposed IEPs had offered N.R. a free appropriate public education in the least restrictive environment. The parties filed cross-motions for summary judgment, and the District Court granted summary judgment in favor of the Board. The District Court found that the 1996-97 IEP (consisting of placement in Kingwood's half-day preschool class and resource room) provided N.R. with a free, appropriate public education by offering more than a trivial education benefit. See T.R. v. Kingwood Township Bd. of Educ., 32 F. Supp. 2d 720, 728-29 (D.N.J. 1998). The court pointed to testimony by the Board's expert witnesses, Dr. Frances Hobbie and Dr. Leslie Callanan, who stated that the Kingwood program would meet N.R.'s educational needs. The court also referenced the testimony of Darlene Johnson, the teacher of the Kingwood preschool class, who stated that she was familiar with N.R.'s IEP and would work to implement it on a daily basis.

In addition, the District Court found that the Kingwood class constituted the least restrictive environment for N.R. under the IDEA. See id. at 730. Finally, the court held that Rainbow Rascals could not be considered as a possible placement for N.R. because it was not accredited by the state. See id. at 730-31.

N.R. and his parents appeal, seeking reimbursement for N.R.'s tuition at Rainbow Rascals and for his therapy costs for the 1996-97 school year.

We exercise jurisdiction pursuant to 20 U.S.C. S 1415(i)(2). We exercise plenary review of the legal standard applied by the District Court. See Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 181 (3d Cir. 1988). However, we must accept the District Court's findings of fact unless they are clearly erroneous. See Oberti v. Board of Educ. of Borough of Clementon Sch. Dist , 995 F.2d 1204, 1220 (3d Cir. 1993).

The IDEA requires states receiving federal funding under the Act to have "in effect a policy that ensures all children with disabilities the right to a free appropriate public education." 20 U.S.C. S1412(1). Where a state fails to satisfy this statutory mandate, parents have a right to reimbursement for private school tuition. See Burlington v. Department of Educ. of Commonwealth of Mass., 471 U.S. 359, 370 (1985). Appellants argue that the District Court erred in finding that the Board's 1996-97 IEP provided N.R. with a free appropriate public education because the Court applied an incorrect legal standard and failed to conduct an independent review of the record. We reject this argument. Although it appears that the District Court did apply an incorrect legal standard, it is also apparent that the Board introduced more than sufficient evidence to prove, under the proper standard, that the Kingwood preschool placement provided a free and appropriate education (hereinafter "FAPE") for N.R.

The Supreme Court has construed the statute's FAPE mandate to require "education specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to 'benefit' from the instruction." Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982). The education provided must "be sufficient to confer some educational benefit upon the handicapped child," id. at 200, although the state is not required to "maximize the potential of handicapped children." Id. at 197 n.21. Prior to the District Court's decision in this case, our Court interpreted Rowley to require that an IEP offer "more than a trivial or de minimis educational benefit." Oberti, 995 F.2d at 1213; see also Polk, 853 F.2d at 179 (IDEA "calls for more than a trivial educational benefit"). Specifically, we said that a satisfactory IEP must provide "significant learning" and confer "meaningful benefit." Polk, 853 F.2d at 182, 184.

The District Court, in apparent reliance on these precedents, focused its review on "whether [N.R.'s] IEP was sufficient to confer an educational, nontrivial benefit on him," and concluded that it was. T.R., 32 F. Supp. 2d at 728. However, in our most recent explication of the FAPE standard, our Court squarely held that "[t]he provision of merely 'more than a trivial educational benefit' does not meet" the meaningful benefit requirement of Polk. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). By failing to inquire into whether the Board's IEP would confer a meaningful educational benefit on N.R., the District Court applied the incorrect legal standard on this issue. ²

Nevertheless, we believe that the evidence on which the District Court relied amply satisfies the somewhat more stringent "meaningful benefit" test. As the District Court noted, both Dr. Callanan and Dr. Hobbie testified to the benefits N.R. would receive from resource-room work in the areas of communication and motor skills. (App. 32, 45.) Dr. Hobbie also noted the educational advantages of the Kingwood preschool program, including small class size, a full-time aide, and the presence of supplemental staff and a child study team on premises. (App. 38-39.) Darlene Johnson, the teacher of the Kingwood preschool class, testified that she would implement N.R.'s IEP on a daily basis in her class. (App. 34-35.) The District Court's decision to credit this testimony is a finding of fact and is entitled to deference in the absence of clear error. See Oberti, 995 F.2d at 1220. In light of this credible evidence, we believe that the Board satisfied its burden to show that N.R. would receive a meaningful educational benefit from the Kingwood preschool program.

Appellants also argue that the District Court failed to give adequate consideration to N.R.'s individual potential in concluding that the Kingwood IEP was appropriate. In Ridgewood, this Court reiterated that the educational benefit of an IEP "must be gauged in relation to a child's potential." 172 F.3d at 247 (quoting Polk, 853 F.2d at 185). To fulfill this mandate a district court must "analyze the type and amount of learning" of which the student is capable. Ridgewood, 172 F.2d at 248.

Contrary to appellants' suggestion, the District Court did address N.R.'s specific needs in its analysis. The Court noted that "Dr. Frances Hobbie stated that the [Kingwood] preschool program would . . . suit N.R.'s needs," and the Court cited to the portion of Dr. Hobbie's testimony that specifically discussed those needs. T.R., 32 F. Supp. 2d at 728. For example, Dr. Hobbie discussed the specific benefits that N.R. could obtain from resource room work:

I like some individual attention to the areas of need . . . I would definitely think that it would be tremendously beneficial for [N.R.] to have some speech language therapy individually . . . certainly in the resource center I would like to see him get some really individual work on speech language.
As far as the motor component where he has some difficulty, that again could be worked on in that special program. (App. 45.) The District Court also cited Dr. Callanan's testimony, in which she further addressed N.R.'s specific needs and capabilities. See T.R., 32 F. Supp. 2d at 729. Dr. Callanan opined that "N.R.'s particular difficulties" did not necessitate a full-day preschool program. (App. 8.) She noted that N.R.'s participation in lunch and recess in the Kingwood program would provide "additional time for socialization." (App. 8.) She further testified that N.R. would benefit from time in the resource center at Kingwood because of "his need for additional time to rehearse skills" (App. 20) and noted that "N.R.'s motoric [sic] difficulties and his communication difficulties could be greatly benefited by resource center placement." (App. 32.) This testimony-- which was referenced by the District Court in support of its holding--explicitly assessed the Kingwood IEP in light of N.R.'s individual needs and potential.
In sum, the District Court's failure to enunciate the correct "meaningful benefit" test is not fatal to its determination that the 1996-97 IEP offered N.R. a free appropriate public education. Even under the proper standard, the evidence in the record is more than sufficient to support a finding that the Kingwood program would confer on N.R. a meaningful educational benefit in light of his individual needs and potential.

The IDEA also contains a "mainstreaming" component, which requires states to establish "procedures to assure that, to the maximum extent appropriate, handicapped children . . . are educated with children who are not handicapped." 20 U.S.C. S 1412(5)(B) (1994). ³ We have interpreted this mandate to require that a disabled child be placed in the least restrictive environment (hereinafter "LRE") that will provide him with a meaningful educational benefit. "The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995). Appellants contend that the District Court erred in finding that the Kingwood preschool program was the LRE for N.R. We agree with the appellants that the Court failed adequately to investigate potential alternative placements, and we remand for consideration of this issue.

In Oberti, this Court adopted a two-part test for assessing compliance with the LRE requirement. First, the Court must determine "whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily." Oberti, 995 F.2d at 1215. Factors the Court should consider in applying this prong are: (1) the steps the school district has taken to accommodate the child in a regular classroom; (2) the child's ability to receive an educational benefit from regular education; and (3) the effect the disabled child's presence has on the regular classroom. See id. at 1215-17. Second, if the Court finds that placement outside of a regular classroom is necessary for the child's educational benefit, it must evaluate "whether the school has mainstreamed the child to the maximum extent appropriate, i.e., whether the school has made efforts to include the child in school programs with nondisabled children whenever possible." Id. at 1215. These requirements apply to preschool children, see 34 C.F.R. S 300.552, and the Board bears the burden of proving compliance with the IDEA's mainstreaming requirement. See Oberti, 995 F.2d at 1215.

The peculiar facts of this case make a mechanical application of the Oberti test difficult. As the District Court correctly noted, the Kingwood preschool program "cannot be described as a typical 'regular class,' nor is it a typical special education class; half of the children in the class are handicapped, and any preschool child living in Kingwood Township may apply to attend the program." T.R., 32 F. Supp. 2d at 730. Nevertheless, it is clear that the Kingwood preschool class is, under the terms of the IDEA, more restrictive than a 'regular," fully-mainstreamed preschool class would be. Indeed, the Kingwood program's statement of philosophy states that it "has been designed to meet the needs of Kingwood Township students ages three through five who have an identified disabling condition or a measurable developmental impairment and who would benefit from special education." (App. 100) (emphasis added).

Certainly, the IDEA does not contemplate "an all-or-nothing educational system in which handicapped children attend either regular or special education." Oberti, 995 F.2d 1204, 1218 (quoting Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1050 (5th Cir. 1989)). However, we believe that, under the IDEA's strict mainstreaming requirement, a hybrid preschool program like Kingwood's would ordinarily provide the LRE only under two circumstances: first, where education in a regular classroom (with the use of supplementary aids and services) could not be achieved satisfactorily or, second, where a regular classroom is not available within a reasonable commuting distance of the child.

The record contains no indication that N.R. could not have been educated satisfactorily in a regular classroom. Indeed, the Board's own experts admit that N.R.'s placement in Kingwood's regular kindergarten class (which was rejected by the parents) would be fully appropriate. (App. 31-32, 40-41, 46-47, 50-51.) Based on this undisputed testimony, it seems clear that N.R. could have received a meaningful educational benefit from a regular classroom. Moreover, there is no contention that his behavior would have been disruptive to other students.

Of course, a district that does not operate a regular preschool program is not required to initiate one simply in order to create an LRE opportunity for a disabled child. See 34 C.F.R. S 300.552, Note (1996). However, the school district is required to take into account a continuum of possible alternative placement options when formulating an IEP, including "[p]lacing children with disabilities in private school programs for nondisabled preschool children." Id. Under these circumstances, the District Court erred in not inquiring into whether regular classroom options were available within a reasonable distance to implement N.R.'s IEP, and we remand so the District Court may consider this question.

We next address the appellants' contention that the Board and the District Court erred specifically in failing to include Rainbow Rascals in the continuum of available programs. Appellants claim that Rainbow Rascals would have provided N.R. with a free and appropriate public education in the least restrictive environment and that the state's placement of N.R. in the Kingwood preschool program, rather than in Rainbow Rascals, was in error.

As a substantive matter, it seems likely that the Rainbow Rascals program, aside from its lack of accreditation, could have provided N.R. with an FAPE. For example, the Board's experts admitted that N.R. had made substantial gains during his 1995-96 placement at Rainbow Rascals. (App. 25, 48.) In addition, Rainbow Rascals' classroom was fully mainstreamed and thus less restrictive under the IDEA than the Kingwood preschool program. Therefore, unless the state was barred from considering Rainbow Rascals on its continuum of alternative placements for some other reason, the Board would have been required to approve the Rainbow Rascals placement as the one providing an FAPE in the LRE.

Nevertheless, we agree with the District Court's conclusion that the Board was not required to consider placement in Rainbow Rascals because that program was not properly accredited under New Jersey law. Under 20 U.S.C. S 1401(a)(18)(D), the "free and appropriate public education" required under IDEA must "meet the standards of the State educational agency." Although federal regulations envision placing disabled children in "regular" private school classes, the universe of private programs that a state may consider is at least partly defined by state law.

Under the state regulations in place at the time the 1996-97 IEP was formulated, New Jersey's program options for IDEA placement included "[a]n approved private school for the handicapped," and "[a]n accredited nonpublic school which is not specifically approved for the education of children with educational disabilities." N.J.A.C.S 6:28-4.2 (1997).4 The regulations defined an "approved private school for the handicapped" as "an incorporated entity approved by the Department of Education . . . to provide special education and related services to pupils with educational disabilities." N.J.A.C. S 6:28-1.3 (1997). It is undisputed that Rainbow Rascals lacked such approval.

The regulations also permitted placement in a non-approved, accredited private school "with the consent of the Commissioner [of Education] or by an order of a court of competent jurisdiction." N.J.A.C. S 6:28-6.5(a) (1997). Accreditation under this regulation required "the on-going, on-site evaluation of a nonpublic school by a governmental or independent educational accreditation agency which is based upon written evaluation criteria that address educational programs and services, school facilities and school staff." N.J.A.C. S 6:28-6.5(b)(1) (1997). Rainbow Rascals was not accredited as a preschool by any state or independent agency at the time the IEP was formulated, and there is no showing that its personnel possessed the professional certifications and licenses required by N.J.A.C. S 6:28-6.5(b)(5). Indeed, Rainbow Rascals' only license at the time was as a daycare center. (App. 119.) Accordingly, it was not eligible for placement under this regulation, even with the consent of the state Department of Education. ⁵

Because Rainbow Rascals was neither approved nor accredited as a preschool under New Jersey law, it was ineligible for placement consideration by the state under S 1401(a)(18)(D). 6 Accordingly, the Board did not err by failing to consider it when preparing N.R.'s IEP.

Finally, appellants contend that, even if Rainbow Rascals was not an available option for state placement, they are nevertheless entitled for reimbursement for their own unilateral placement under Florence County School District Four v. Carter, 510 U.S. 7 (1993). In Florence, the school district proposed a placement which the court found failed to provide the child with an FAPE. The parents rejected the placement, and enrolled the child in a private program which was not on the state's "approved list," but which did provide a substantive FAPE. The Supreme Court held that the parents were entitled to reimbursement even though the school lacked state approval, because the state standards requirement of 20 U.S.C. S 1401(a)(18)(D) applies only to placements made by a public authority. See id. at 13-14; see alsoWarren G. v. Cumberland County Sch. Dist., 190 F.3d 80 (1999).

Florence does not require reimbursement for appellants' Rainbow Rascals placement. Both Florence and Warren G. involved disputes over the FAPE requirement. They did not address the situation we face in this case, where both the state-chosen (accredited) school and the parent-chosen (unaccredited) school would provide an FAPE, but where the unaccredited school would arguably provide a less restrictive environment. Extending Florence to these circumstances would require a state to ensure the maximally optimal LRE placement for each child, even if such a placement is not available in any qualifying school within a reasonable distance.

Florence's own language forecloses such an interpretation. Florence gives parents the right to reimbursement for a unilateral placement in a non-qualifying school only "if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act." Florence, 510 U.S. at 15 (emphasis added). By its terms, this is a two-pronged inquiry. The threshold question here focuses on the first prong--viz., whether the Board's proposed placement violated the IDEA by failing to consider Rainbow Rascals. The parental reimbursement mandate comes into play only if we answer yes to this initial question.

Florence, while holding that parents are not bound by S 1401(a)(18)(B)'s state standards requirement, did not suggest that the state is required--or even permitted--to overlook that statutory mandate and consider placements that do not meet its substantive educational standards. Such a reading would go against the plain language of the statute and render the state standards requirement of S 1401(a)(18)(D) a nullity. Because we have found that the Board did not err in rejecting Rainbow Rascals as a potential placement, we cannot find that the "public placement violated IDEA" on these grounds. Of course, if the District Court on remand finds that the Board improperly failed to consider other potential placements that met New Jersey's substantive standards (see part III(B), supra), the state may have failed to meet its obligations under the IDEA and reimbursement for the Rainbow Rascals placement may be available under Florence.

We affirm the holding of the District Court that the 1996-97 Kingwood IEP provided N.R. with an FAPE. We vacate the District Court's holding that the Kingwood placement constituted the least restrictive environment, and remand for additional proceedings consistent with this opinion.

STAPLETON, Circuit Judge, Dissenting:

The Court concludes that, although "public agencies that do not operate programs for non-disabled preschool children are not required to initiate such programs," the federal regulations do impose upon them an affirmative duty to make all reasonable efforts to find alternatives that will provide the LRE. 34 C.F.R. S 300.552 Note (1987); see also 34 C.F.R. S 300.551. This includes the alternative of "[p]lacing children with disabilities in private school programs for non-disabled preschool children." 34 C.F.R. S 300.552 Note. I agree.

The Court also concludes, quite properly, that Rainbow Rascals was available to provide N.R. with a free and appropriate public education in a wholly integrated environment. It nevertheless relieves the Board of Education of any duty to provide N.R. access to that education because Rainbow Rascals was not "accredited or approved" under the applicable state regulation at the time the placement decision was made.

I would have no quarrel with this holding if the record indicated that Rainbow Rascals failed to meet educational criteria established by the State. See 20 U.S.C. S 1401(a)(18)(D) (the FRAP required under IDEA must "meet the standards of the State educational agency."). The record in this case, however, does not suggest there are any such criteria that Rainbow Rascals failed to meet. What the record does affirmatively establish is that the State at the relevant point in time was not accrediting private preschools, and that although state law provided for a waiver of the "accredited or approved" requirement, see N.J. Admin. Code S 6:28-4.6 (Supp. 1994), no request for a waiver was made. 1 If a state can so easily avoid its affirmative duty to provide a free and appropriate public education in the least restrictive environment, the promise of the IDEA will be illusory for many. For that reason, I respectfully dissent. I would reverse and remand with instructions to grant tuition reimbursement.

1. In addition to placement in accredited private schools, state law also authorized placement in preschools in approved facilities." N.J. Admin. Code S 6:28-1.1(e)(3) (Supp. 1994). The record does not reflect, however, that the State maintained any list of preschools in "approved facilities."

1. N.R. would have turned five the week that school began, and New Jersey law does not require a parent to enroll a child in kindergarten until the child has reached the age of six.

2. Although the District Court did cite to Polk, it explicitly--and erroneously--applied a "more than trivial benefit" standard. See T.R., 32 F. Supp. 2d at 728.

3. In 1997, Congress amended the IDEA, recodifying the definition of least restrictive environment at 20 U.S.C. S 1412(a)(5)(A) (1998 Supp.) and adding a new provision that requires that state special education funding formulas not result in restrictive or segregated placements, see 20 U.S.C. S 1412(a)(5)(B) (1998 Supp.). Because the Kingwood IEP was formulated prior to 1997, the amendments do not apply in this case.

4. The sections of the New Jersey Administrative Code dealing with special education were repealed and recodified as amended in 1998. However, the pre-amendment regulations govern this case.

5. The special education regulations in force in 1996 did contain what was apparently a general waiver provision, which provided that "[e]xceptions to the requirements of this chapter shall be [m]ade only with prior written approval of the Department of Education through its county office . . . for a period not to exceed one year." N.J.A.C. S 6:28-4.6 (1997). Nevertheless, we do not believe that the IDEA required New Jersey to make an exception for an unaccredited, unapproved program like Rainbow Rascals. Requiring a state to ignore its substantive educational standards by forcing it to make an exception whenever a non-qualifying school provides a somewhat less restrictive environment than an approved school (which also offers the student an FAPE) would effectively replace state standards with the federal courts' case-by-case determinations of educational appropriateness. Such a reading would render S 1401(a)(18)(D) a virtual nullity. As the Supreme Court emphasized in Rowley, the IDEA was not intended to "displace the primacy of states in the field of education" but rather "to assist them in extending their educational systems to the handicapped." 458 U.S. at 208.

6. The dissent suggests that New Jersey's accreditation requirement was a mere formality, unconnected to any substantive criteria. This is untrue. The accreditation regulations in effect at the time required, inter alia, that there be ongoing, on-site evaluation of the school by a government or independent accreditation agency based on written evaluation criteria, see N.J.A.C. S 6:28-6.5(b)(1) (1997); that personnel providing educational or related services hold appropriate educational certifications, see N.J.A.C. S 6:28-6.5(b)(5) (1997); and that the pupil receive a program comparable to that required to be provided by the public schools under the relevant statutes and regulations, see N.J.A.C. S 6:28-6.5(b)(6) (1997). There is no record evidence that Rainbow Rascals met any of these substantive criteria. Moreover, the dissent's contention that "the State at the relevant point in time was not accrediting private preschools" is without basis in the record. Even if the state had imposed some sort of accreditation moratorium, Rainbow Rascals would still have been free to qualify for IDEA placement by obtaining accreditation from a private agency--as it in fact did the following year. In short, there is no evidence that New Jersey's accreditation and approval standards were being used systematically to avoid the state's affirmative obligations under the IDEA.

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individuals with disabilities education act

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Wrightslaw - Law - Caselaw - T. R. v. Kingwood Township (3rd Cir. 2000)

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KINGWOOD TOWNSHIP BOARD OF EDUCATION, HUNTERDON CO., NEW JERSEY On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Mary L. Cooper Argued: November 18, 1999 Filed: March 9, 2000 Before: ALITO, BARRY, and STAPLETON, Circuit Judges. ALITO, Circuit Judge: Plaintiff N.R., through his parents, T.R.

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Allen Independent School District (AISD) Board Policy
Local Administrative Law

According to AISD Board Policy, AISD requires schools to follow all federal and state laws regarding providing students with a free and appropriate public education (FAPE).  AISD offers:

Mainstream

Homebound

Hospital class

Speech therapy

Resource room/services

Self-contained (mild, moderate, or severe)

Off-home campus

Nonpublic day school

Vocational adjustment class/program

Residential care and treatment facility (not district resident)

State supported living center

Reference

Allen Independent School District.  (2019, November 8).  Allen ISD Board Policy Manual, §EHBA. Retrieved from https://pol.tasb.org/Policy/Download/305?filename=EHBA(LEGAL).html&title=SPECIAL%20PROGRAMS&subtitle=SPECIAL%20EDUCATION

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Note: The policies in the EHBA series are statements of principles governing special education programs for Texas school districts. In no way are these policies intended to cover the entire scope and detail involved in administering any special education program.

Nondiscrimination

No qualified student with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any district service, program, or activity. [See also FB]

Free Appropriate Public Education (FAPE)

Eligible students with disabilities shall enjoy the right to a free appropriate public education, which may include instruction in the regular classroom, instruction through special teaching, or instruction through approved contracts. Instruction shall be supplemented by the provision of related services when appropriate. Education Code 29.003(a)

"Free appropriate public education" (FAPE) means special education and related services that:

1. Have been provided at public expense, under public supervision and direction, and without charge;

2. Meet standards set out by TEA;

3. Include an appropriate preschool, elementary school, or secondary school education; and

4. Are provided in conformity with the student's individualized education program (IEP).

Least Restrictive Environment

A district shall ensure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, shall be educated with children who are not disabled. Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment shall occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. 1412(a)(5); 34 C.F.R. 300.114(a)(2)

Discipline

All disciplinary actions regarding students with disabilities shall be in accordance with federal requirements, Education Code Chapter 37, and 19 Administrative Code 89.1053. 19 TAC 89.1050(k) [See FOF]

Instructional Arrangements and Settings

Instructional arrangements/settings shall be based on the individual needs and IEP s of eligible students receiving special education services and shall include the following:

1. Mainstream: providing services in a regular classroom;

2. Homebound: providing services at home or hospital bedside;

3. Hospital class: providing services in a classroom, hospital facility, or residential care and treatment facility not operated by a district;

4. Speech therapy: providing speech therapy services in a regular education classroom or other setting;

5. Resource room/services: providing services in a setting other than the regular classroom for less than 50 percent of the regular school day;

6. Self-contained (mild, moderate, or severe) regular campus: providing services to a student who is in a self-contained program for 50 percent or more of the regular school day on a regular school campus;

7. Off-home campus: providing services to nondistrict students in a single location, through district personnel at a nondistrict facility, or at a district campus that provides only special education and related services;

8. Nonpublic day school: providing services through a contractual agreement with a nonpublic school for special education;

9. Vocational adjustment class/program: providing services to a student who is placed on a job (paid or unpaid) with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP;

10. Residential care and treatment facility (not district resident): providing services to students who reside in care and treatment facilities and whose parents do not reside within the boundaries of the district; or

11. State supported living center: providing services to a student who resides at a state supported living center when the services are provided at the state supported living center location.

Other Program Options

Other program options that may be considered for the delivery of special education and related services to a student include contracts with other districts and programs approved by TEA.

Related Services

Definition

"Related services" means transportation, and such developmental, corrective, and other supportive services as may be required to assist a child with a disability to benefit from special education, including the early identification and assessment of disabling conditions in children.

The term includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive FAPE as described in the child's IEP, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that medical services shall be for diagnostic and evaluation purposes only.

The term does not include a medical device that is surgically implanted, the optimization of the device's functioning, or the replacement of such device.

Extended School Year Services

Extended school year (ESY) services are defined as individualized instructional programs beyond the regular school year for eligible students with disabilities.

A district shall ensure that ESY services are available as necessary to provide a student with a disability with FAPE.

ESY services must be provided only if the ARD committee determines, on an individual basis, that the services are necessary for FAPE. A district may not limit ESY services to particular categories of disability or unilaterally limit the type, amount, or duration of ESY services.

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Note: The policies in the EHBA series are statements of principles governing special education programs for Texas school districts. In no way are these policies intended to cover the entire scope and detail involved in administering any special education program.

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Allen Independent School District (AISD) Board Policy
Local Administrative Law

According to the AISD School Board Policy, the district complies with the federal and state regulations concerning creating and implementing a student's IEP.  The district shall:

create an ARD committee to discuss the evaluation, placement, reevaluation, and determination of eligibility of students who may have a disability

comply with the LRE standard

take various steps to ensure one or both parents are involved in each ARD committee meeting, including allowing alternate ways of participating

meet at least once each year to determine the student's placement and review the IEP

ensure all members of the ARD committee (parents, general education teachers, special education teachers, district representative, specialists, the student if applicable, and an interpreter if needed) are able to participate and collaborate in developing the IEP

Reference

Allen Independent School District.  (2018, July 23).  Allen ISD Board Policy Manual, §EHBAB. Retrieved from https://pol.tasb.org/Policy/Download/305?filename=EHBAB(LEGAL).html&title=SPECIAL%20EDUCATION&subtitle=ARD%20COMMITTEE%20AND%20INDIVIDUALIZED%20EDUCATION%20PROGRAM

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Admission, Review, and Dismissal Committee

Responsibilities of ARD Committee

The responsibilities of the ARD committee and the district include:

1. Evaluation, reevaluation, and determination of eligibility for special education and related services;

2. Placement of students with disabilities including disciplinary changes in placement;

3. Development of the student's IEP;

4. Development and implementation of service plans for students who have been placed by their parents in private schools and who have been designated to receive special education and related services;

5. Compliance with the least restrictive environment standard;

6. Compliance with state requirements for reading diagnosis and state assessments;

7. Development of junior high or middle school personal graduation plans;

8. Development of accelerated instruction under Education Code 28.0211 and intensive programs of instruction under Education Code 28.0213 [see EHBC];

9. Evaluation, placement, and coordination of services for students who are deaf, hard of hearing, blind, or visually impaired; and

10. Determining eligibility for extracurricular activities, under Education Code 33.081.

Committee Members

A district shall ensure that each ARD committee meeting includes all of the following:

1. The parents of a student with a disability;

2. At least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment);

3. At least one special education teacher or, if appropriate, at least one special education provider of the student;

4. A representative of the district who:

1. Is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities;

2. Is knowledgeable about the general education curriculum; and

3. Is knowledgeable about the availability of resources of the district;

5. Other individuals who have knowledge or special expertise regarding the student at the discretion of the district or the parent;

6. An individual who can interpret the instructional implications of evaluation results, who may be a member of the ARD committee described in items 2-5;

7. The student, if appropriate;

8. For a student with an auditory impairment, including deaf-blindness, a teacher who is certified in the education of students with auditory impairments;

9. For a student with a visual impairment, including deaf-blindness, a teacher who is certified in the education of students with visual impairments;

10. For a student with limited English proficiency, a member of the language-proficiency assessment committee (LPAC), who may also be a member as described at items 2 or 3;

11. A representative of any participating agency likely to be responsible for providing transition services for a student, as appropriate, and with the consent of the student's parents or a student who has reached the age of majority; and

12. When considering initial or continued placement of a student in a career and technical education program, a representative from career and technical education, preferably the teacher.

20 U.S.C. 1414(d)(1)(B); 34 C.F.R. 300.321; 19 TAC 75.1023(d)(1), 89.1050(c)
A district member of the ARD committee shall not be required to attend an IEP meeting, in whole or in part, if the parent and the district agree in writing that the attendance is not necessary because the member's area of the curriculum or related services is not being modified or discussed during the meeting.

Regular Education Teacher

If an ARD committee is required to include a regular education teacher, the regular education teacher must, to the extent practicable, be a teacher who is responsible for implementing a portion of the child's IEP. Education Code 29.005(a)

Parent Involvement

A district shall take steps to ensure that one or both parents of a student with a disability are present at each ARD committee meeting or are afforded an opportunity to participate, including:

1. Notifying the parents of the meeting early enough to ensure that they will have an opportunity to attend (the notice shall include the purpose, time, and location of the meeting, who will be in attendance, that persons with knowledge or special expertise may be invited by either the parent or the district, and that the Part C service coordinator or other representatives of the Part C system may be invited to the initial meeting for a child previously served under a Part C early childhood intervention program); and

2. Scheduling the meeting at a mutually agreed on time and place.

If the purpose of the meeting is to consider transition services, the notice must also indicate this purpose, indicate that the district will invite the student, and identify any other agency that will be invited to send a representative.

Alternative Means of Meeting Participation

If neither parent can attend an ARD meeting, the district must allow other methods of participation, such as through telephone calls or video conferencing. 20 U.S.C. 1414(f); 34 C.F.R. 300.322(c); 19 TAC 89.1050(d)

An ARD meeting may be conducted without a parent in attendance if a district is unable to convince the parents that they should attend, but the district shall have a record of its attempts to arrange a mutually agreed on time and place, such as detailed records of telephone calls, correspondence, or visits made or attempted and the results of any of those actions. 34 C.F.R. 300.322(d)

Meetings

A district shall initiate and conduct ARD committee meetings for the purpose of developing, reviewing, and revising the IEP of a child with a disability. The committee shall review each child's IEP periodically, and, if appropriate, revise the IEP. A meeting must be held for this purpose at least once a year. The ARD committee must also determine the child's placement once a year.

A "meeting" does not include informal or unscheduled conversations involving district personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provisions if those issues are not addressed in the child's IEP. A "meeting" also does not include preparatory activities that district personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

Meeting at Parent's Request

Upon receipt of a written request for an ARD committee meeting from a parent, the school district must schedule and convene a meeting in accordance with the procedures in 19 Administrative Code 89.1050(d) or within five school days, provide the parent with written notice explaining why the district refuses to convene a meeting. 19 TAC 89.1050(e)

Written Notice

If a parent is unable to speak English, a district must provide the parent with a written notice regarding the ARD committee meeting required under 19 Administrative Code 89.1050(d) (notice for purposes of scheduling) or (e)(2) (notice explaining why the district refuses to convene a meeting) in the parent's native language, unless it is clearly not feasible to do so. If the parent's native language is not a written language, the school district must take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication so that the parent understands the content of the notice. 19 TAC 89.1050(f)

Transfer Students

In-State Transfers

When a student transfers to a new district within the state in the same school year and the parents verify that the student was receiving special education services in the previous district or the previous district verifies in writing or by telephone that the student was receiving special education services, the new school district must meet the requirements of 34 C.F.R. 300.323(e) regarding the provision of special education services. The time line for completing the requirements outlined in 34 C.F.R. 300.323(e)(1) or (2) is 30 school days from the date the student is verified as being a student eligible for special education services.

Transfers from Another State

When a student transfers from a district in another state in the same school year and the parents verify that the student was receiving special education services in the previous district or the previous district verifies in writing or by telephone that the student was receiving special education services, the new district must meet the requirements of 34 C.F.R. 300.323(f) regarding the provision of special education services. If the new district determines that an evaluation is necessary, the evaluation is considered a full individual and initial evaluation and must be completed within the time lines established by 19 Administrative Code 89.1011(c) and (e). The time line for completing the requirements in 34 C.F.R. 300.323(f)(2), if appropriate, is 30 calendar days from the date of the completion of the evaluation report. If the school district determines that an evaluation is not necessary, the time line for completing the requirements outlined in 34 C.F.R. 300.323(f)(2) is 30 school days from the date the student is verified as being a student eligible for special education services.

Transfer of Records

The district 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 district.

The previous district shall take reasonable steps to promptly respond to the request from the new district and must furnish the new school district with a copy of the student's records, including the student's special education records, not later than the tenth working day after the date a request for the information is received by the previous school district.

Military Dependents

A district shall initially provide comparable services to a military student with disabilities based on his or her current IEP. This does not preclude the district from performing subsequent evaluations to ensure appropriate placement of the student. Education Code 162.002 art. V, C [See FDD]

Individualized Education Program

A district shall develop, review, and revise an IEP for each child with a disability. 20 U.S.C. 1412(a)(4); 34 C.F.R. 300.320(a)

At the beginning of each school year, a district shall have in effect, for each child with a disability in its jurisdiction, an IEP. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.323(a)

The term "individualized education program" means a written statement for each student with a disability that documents the decisions of the ARD committee with respect to issues discussed at each committee meeting and includes:

1. A statement of the student's present levels of academic achievement and functional performance;

2. A statement of measurable annual goals, including academic and functional goals;

3. A description of how the student's progress toward the annual goals will be measured and when periodic reports on the progress of the student will be provided;

4. A statement of the specific special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the student;

5. A statement of the program modifications or supports for school personnel that will be provided for the student;

6. An explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in extracurricular and nonacademic activities;

7. The projected dates for initiation of services and modifications and the anticipated frequency, location, and duration of these services and modifications;

8. A statement of any individual appropriate and allowable accommodations that are necessary to measure the academic achievement and functional performance of the student on state or district-wide assessments;

9. If the ARD committee determines that the student must take an alternative assessment instead of a particular regular state or district-wide assessment, a statement of why the student cannot participate in the regular assessment and why the particular assessment selected is appropriate for the student;

10. If the ARD committee determines that a student is in need of extended school year (ESY) services, identification of the goals and objectives that will be addressed during ESY services;

11. Beginning not later than when a student reaches 14 years of age and updated annually thereafter, the ARD committee's consideration and decisions regarding the transition issues under 19 Administrative Code 89.1055(j) [see EHBAD];

12. Beginning not later than the first IEP to be in effect when the student is 16, or younger if determined appropriate by theARD committee, and updated annually thereafter, a statement of appropriate measurable postsecondary goals and transition services needed to assist the student in reaching those goals [see EHBAD];

13. Beginning not later than one year before the student reaches the age of 17, a statement that the student has been informed of the rights that will transfer to the student upon reaching the age of majority;

14. The date of the meeting;

15. The name, position, and signature of each member participating in the meeting; and

16. An indication of whether the child's parents, the adult student, if applicable, and the administrator agreed or disagreed with the decisions of the ARD committee.

20 U.S.C. 1414(d); 34 C.F.R. 300.320; Education Code 29.005(b‑1), .011; 19 TAC 89.1055
The written statement of a student's IEP may be required to include only information included in the model form developed by TEA under Education Code 29.0051(a) and posted on the TEA website. A district may use the model form to comply with the requirements for an IEP under 20 U.S.C. 1414(d). Education Code 29.005(f), .0051

Behavioral Intervention Plan

The ARD committee may determine that a behavior improvement plan or a behavioral intervention plan (BIP) is appropriate for a student for whom the committee has developed an IEP. If the committee makes that determination, the BIP shall be included as part of the student's IEP and provided to each teacher with responsibility for educating the student. Education Code 29.005(g); 19 TAC 89.1055(g)

Translation of IEP into Native Language

If the parent is unable to speak English and Spanish is the parent's native language, a district shall provide a written or audiotaped copy of the student's IEP translated into Spanish. If the parent's native language is other than Spanish or English, a district shall make a good faith effort to provide a written or audiotaped copy of the student's IEP translated into the parent's native language.Education Code 29.005(d)

A written copy of the student's IEP translated into Spanish or the parent's native language means that all of the text in the student's IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.

If a parent's native language is not a written language, the district must take steps to ensure that the student's IEP is translated orally or by other means to the parent in his or her native language or other mode of communication.

Autism/Pervasive Developmental Disorder

For students with autism/pervasive developmental disorders, the following strategies shall be considered by the ARD committee, based on peer-reviewed, research-based educational programming practices to the extent practicable and, when needed, addressed in the IEP:

1. Extended educational programming;

2. Daily schedules reflecting minimal unstructured time and active engagement in learning activities;

3. In-home training and community-based training or viable alternatives that assist the student with the acquisition of social/behavioral skills;

4. Positive behavior support strategies based on relevant information;

5. Beginning at any age, futures planning for integrated living, work, community, and educational environments that considers skills necessary to function in current and postsecondary environments;

6. Parent/family training and support, provided by qualified personnel with experience in Autism Spectrum Disorders (ASD);

7. Suitable staff-to-student ratio appropriate to identified activities and as needed to achieve social/behavioral progress based on the student's developmental and learning level (acquisition, fluency, maintenance, generalization) that encourages work towards individual independence;

8. Communication interventions, including language forms and functions that enhance effective communication across settings;

9. Social skills supports and strategies based on social skills assessment/curriculum and provided across settings;

10. Professional educator/staff support; and

11. Teaching strategies based on peer-reviewed, research-based practices for students with ASD.

If the ARD committee determines that services are not needed in one or more of the areas in 1-11 above, the IEP shall include a statement reflecting that decision and the basis upon which the determination was made.

Visual Impairment

If a district provides special education services to students with visual impairments, it shall have written procedures as required in Education Code 30.002(c)(10) (staff access to resources). 19 TAC 89.1075(b)

Collaborative Process

All members of the ARD committee shall have the opportunity to participate in a collaborative manner in developing the IEP. Decisions of the ARD committee concerning the required elements of the IEP shall be made by mutual agreement, if possible. The ARD committee may agree to an annual IEP or an IEP of shorter duration.

Ten-Day Recess

1. The student's presence on campus represents a danger of physical harm to the student or others;

2. The student has committed an expellable offense; or

3. The student has committed an offense that may lead to placement in a disciplinary alternative education program. [See FOF]

These requirements do not prohibit the ARD committee from recessing an ARD committee meeting for reasons other than the failure to reach mutual agreement about all required elements of an IEP.

During the recess, the ARD committee members must consider alternatives, gather additional data, prepare further documentation, and/or obtain additional resource persons who may assist in enabling the ARD committee to reach mutual agreement.

Failure to Reach Agreement

If a recess is implemented and the ARD committee still cannot reach mutual agreement, a district shall implement the IEP it has determined to be appropriate for the student. Each member of the ARD committee who disagrees with the IEP developed by the ARD committee is entitled to include a statement of disagreement in the IEP.

If the IEP is not developed by agreement, the written statement of the program must include the basis of the disagreement. Each member of the ARD committee who disagrees with the IEP developed by the committee is entitled to include a statement of disagreement in the written statement of the program.

Modification of Existing IEP

Upon request, a parent shall be provided with a revised copy of the IEP with amendments incorporated.

To the extent possible, a district shall encourage the consolidation of reevaluation meetings for the child and other ARD meetings for the child.

Teacher Access to IEP

Each district must ensure that each teacher who provides instruction to a student with a disability has access to relevant sections of the student's current IEP, is informed of the teacher's specific responsibilities related to implementation of the IEP, and has an opportunity to request assistance regarding implementation of the student's IEP. 19 TAC 89.1075(c)

Teacher Request to Review IEP

Each district shall develop a process to be used by a teacher who instructs a student with a disability in a regular classroom setting:

1. To request a review of the student's IEP;

2. To provide input in the development of the student's IEP;

3. That provides for a timely district response to the teacher's request; and

4. That provides for notification to the student's parent or legal guardian of that response.

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The responsibilities of the ARD committee and the district include: Evaluation, reevaluation, and determination of eligibility for special education and related services; Placement of students with disabilities including disciplinary changes in placement; Development of the student's IEP; Development and implementation of service plans for students who have been placed by

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Education Week
Does Special Education Work for Students with Learning Disabilities?
By Corey Mitchell

This study tracks the math and reading performance of 44,000 New York City school children in grades 3 through 8, looking to determine if there is a change in their test scores over the period of time that they receive special education services. According to research, students who are diagnosed with a learning disability at an earlier age, grades 4 and 5 to be specific, are more likely to be placed in a less restrictive learning environment and are more likely to to see better testing results because of it (Mitchell, ).

Reference

Mitchell, C. (2019, November 06). Does special education work for students with learning disabilities? Retrieved July 15, 2020, from https://blogs.edweek.org/edweek/speced/2019/11/does_special_education_work_learning_disabilities.html

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Test scores for students with learning disabilities improve after they are classified into special education, and the gains are greatest for students who entered special education before they reached middle school, a recently released report finds.

The report, " The Effects of Special Education on the Academic Performance of Students With Learning Disabilities," used data from the New York City schools to track the academic performance of more than 44,000 students with learning disabilities over seven years.

The study tracked student scores on New York's statewide math and English/language arts exams for students in grades 3 through 8. Having access to the longitudinal data allowed the researchers to document how the selected students performed before and after they began special education services.

On average, scores improved in both English and math for the special education students, and the effects were largest for students who entered special education in grades 4 and 5. The study found no statistically significant effects on test scores for students who began services in grade 7, just a few years later.

"These larger effects for early classification are consistent with hypotheses described earlier-the particular benefits of supports in earlier grades, duration of receipt, or efficacy of parent or school advocacy in earlier grades-although we cannot distinguish between these," the report reads.

The research, part of the Annenberg Institute at Brown University's working paper series, was led by Amy Ellen Schwartz, a professor at the Maxwell School of Citizenship and Public Affairs at Syracuse University, and Leanna Stiefel, a professor at New York University's Wagner School of Public Service.

Their work only examined the performance of students with a learning disability classification, such as dyslexia or ADHD-not those with health impairments or emotional disturbances that require special education services, or for those with autism.
Troubling Gaps
Overall, students who began special education services in grades 4 and 5 "were more likely to be placed, and remain, in less restrictive service settings" than students who began later, the researchers found. The findings suggest that support services that help students remain in the general education classrooms may be "particularly effective" for students with learning disabilities.

Girls and Asian students, regardless of gender, had the largest gains while the increases for black students, especially black boys, were smallest. The relatively small impact of special education services on black boys' test scores may "bolster concerns" about them being overclassified as in need of special education services, also known as disproportionality, according to the authors.

The researchers also questioned whether the low incidence of special education among Asians and the large impact of special education raises questions about whether Asian parents are particularly resistant to special education services and whether that means that Asian students with only the most severe disabilities and the "greatest potential to benefit from services" are receiving them.

The researchers decided to tackle the question because of persistent gaps in performance between students with disabilities compared to general education students.

"Some of what happens with the special education conversation, is people say that we're spending a lot of money and we're not getting anything for it," Schwartz said. "People who are in the world of helping kids with their learning disabilities, they're going to say, 'Yes, we know this works. As it turns out, we know how to teach kids with learning disabilities.'"

Here's a copy of the working paper:

Special Education Working Paper by corey_c_mitchell on Scribd
Related Reading Special Education is Broken Most Classroom Teachers Feel Unprepared to Support Students with Disabilities Survey Offers Front-Line View Into Special Education

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Does Special Education Work for Students With Learning Disabilities?

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Test scores for students with learning disabilities improve after they are classified into special education, and the gains are greatest for students who entered special education before they reached middle school, a recently released report finds.

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Education Week
Students With Disabilities Deserve Inclusion.  It's Also the Best Way to Teach.
By Hannah Grieco

The question arises often about whether inclusion is what is best for every student in the classroom.  Parents sometimes worry that their non-disabled child will not receive as much attention and support as a student with a disability. This article addresses that not only is it the law for these students to receive their instruction in the general education setting when possible, but that with time and patience, all students benefit by enhancing the ability for everyone to work together cooperatively as well as value different perspectives (Greico, 2019).

Reference

Grieco, H. (2020, April 07). Students with disabilities deserve inclusion. It's also the best way to teach. Retrieved July 15, 2020, from https://www.edweek.org/ew/articles/2019/05/08/students-with-disabilities-deserve-inclusion-its-also.html

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Opinion

Inclusion is not the same as thoughtlessly integrating disabled students without support

Students with disabilities face substantially increased rates of abuse and restraint in schools. As an education and disability advocate seeking to change that, I frequently encounter well-meaning arguments for separating higher-needs students from the general population.

Many parents and teachers express sympathy, yet also a desire to keep certain groups of students away from the general population for a variety of reasons.

"Is mainstreaming special needs kids a good idea if it prevents the other kids from learning?"

"And what were the 20-something other kids in the room doing when the teacher was spending most of her time attending to your special-needs child?"

"It's too bad the other children are the ones who lose out when special-needs kids are mainstreamed. This story is all well and good, but it means that this woman's child got way more than the other children did in terms of support and attention."

These are the types of comments found in parent forums and in response to articles about autism and other disabilities in the classroom. And they are echoed by teachers who are facing poorly integrated classrooms with strong behavior challenges. Resistance to inclusion itself as a practice remains entrenched.

Many teachers and parents do not know the pedagogy behind inclusive instruction. Inclusion is not about throwing disabled children into general education classrooms without support or tools and leaving teachers to clean up the resultant chaos. Schools don't meet anyone's needs when they integrate thoughtlessly.

They also do not meet the legal requirements defined by the Individuals with Disabilities Education Act, which guarantees all children the right to free appropriate public education. That includes education for disabled students in the least-restrictive environment possible-not segregated and sequestered away from their peers.

It might be less convenient at first for teachers and students (and parents) to learn about and embrace the disabled student populations at their schools. But there is no inherent right to be free from inconvenience. Perhaps it's time to look more closely at why we as educators and parents are demanding that to begin with.

Inclusion, by definition, involves carefully assessing a child's needs and then implementing a strategic plan to support that child within the general classroom setting. This is done by a special education team, rather than one general education teacher. The team offers options such as teacher training, team-teaching, pushed-in special education instruction, classroom accommodations (a standing desk, computer workstation, etc.), an interpreter, or a classroom assistant added to the room for portions of the day.

My son is autistic, and he has an assistant in his mainstream classroom to support him and several other students as needed. The rest of my son's accommodations rarely affect his classmates at all. He uses a keyboard to write, he meets with the school counselor when he's overwhelmed, and he has social-skills mentoring. The staff at his school meets and works together, mainstreaming children of all abilities. Test scores and academic achievement remain strong, even with a push-in of students from a countywide behavioral program for students with significant emotional disabilities. The general education students are doing great!

Cost is frequently at the heart of arguments against inclusion. It does take money to adequately support special needs students in mainstream classrooms, of course. It costs significantly less to push an assistant in and offer training, however, than to create a separate classroom with a special education teacher or place a child in a specialized private school.

The cost of time is more significant. Inclusion requires teachers, schools, and entire school systems to commit to the model. It requires training and a general overhaul in perspective-about the role of education and the inherent value of each child and his or her learning experience-disabled or not.

However, inclusion is best practice for disabled and non-disabled students alike. Studies show that when inclusion is done well, the whole class benefits. It doesn't take away from one group to focus on another-quite the opposite. It enhances the ability of non-disabled kids to cooperate, work together, understand and value different perspectives, think critically, and even test well.

Yes, research indicates that a majority of general education students test the same or better on standardized tests when they are educated in the same classroom environment as their disabled peers. Classrooms that have several unsupported students with severe behavioral disabilities are the exception. But diagnoses like this are rare, and added supports for those students seems to be key.

When supported and given adequate training and tools, teachers in inclusive classrooms understand and instruct a variety of learners, individualizing instruction to meet the needs of all learners better. Students have varied needs and strengths, whether disabled or not. Teachers in inclusion settings learn to address this and teach better because of it.

Empathy-which cannot be measured quantitatively-matters, too. How children view peers who look and learn differently from themselves is also a consideration as they grow to adulthood and become members of their communities, and as they live and work alongside a diverse array of citizens. It's a critical factor in whether communities and workplaces are able to function and thrive.

Finally, and most importantly, disabled students can achieve. Their talents and gifts are varied, as are the talents and gifts of all students. They are legally entitled to an appropriate public education, but they also have so much to offer their non-disabled peers, teachers, and schools.

Inclusion works when educators collaborate, get the support they need, and believe in the value of all students. It's time for schools and teachers to reevaluate their long-held biases, and it's time to address the initial financial investment required for training and staffing. It's also the law.

Inclusion is the least expensive, most effective method of teaching students. It starts from the top, with administrators making this a priority. When administrators model inclusivity and support teachers in its implementation, the entire school (and school system) culture changes. Test scores are rarely negatively impacted and often go up. More importantly, children become better citizens.

Inclusion is best practice. It is also, quite simply, the right way to teach.

Published in Print: May 8, 2019, as What Students With Disabilities Deserve

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Students With Disabilities Deserve Inclusion. It's Also the Best Way to Teach

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Opinion Students with disabilities face substantially increased rates of abuse and restraint in schools. As an education and disability advocate seeking to change that, I frequently encounter well-meaning arguments for separating higher-needs students from the general population. Many parents and teachers express sympathy, yet also a desire to keep certain groups of students away from the general population for a variety of reasons.

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Education of Individuals with Disabilities
Statutory Law

In the United States Code, under the Individuals with Disabilities Education Improvement Act of 2004, the regulations clarify the Least Restrictive Environment (LRE)

Students with disabilities are educated with their non-disabled peers

Special classes or separate schooling will be provided only in special circumstances to be determined by the IEP team

Does not support removing children from the general education classroom unless it is not possible to ensure an appropriate educational environment with supplementary aids and supports.

Reference

Education of Individuals with Disabilities, 20 USC § 1412(5)

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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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Professional perspective and audience:

As a future elementary school counselor and current elementary school teacher, questions come up each school year of where to place students of varying abilities, how to group them, and which placement will allow those students to be the most successful.  Often, teachers are unaware of the legal requirements when placing students who have learning disabilities or differences, and parents struggle with understanding what to expect, their rights and their child's rights, and how to help their child.  I chose to complete the legal guide on understanding the importance of Least Restrictive Environment (LRE) to not only expand my own learning on the subject, but to have a toolkit available for other teachers and counselors who may have questions or who may need to guide parents through the process.

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Interview Summary:

I interviewed Calli Smith who is the school counselor at Preston Elementary in Allen, Texas.  She has been a school counselor for 14 years and has been at Preston for 3 years.  As we discussed topics of legal and ethical decision making, Smith explained the importance of following all laws, emphasizing that there will be times when she is unsure. In those moments, it is important to take a minute, not rush into any decision making, and either ask for guidance or find the answers (C. Smith, personal communication, July 13, 2020).  When asked about the importance of providing students with the Least Restrictive Environment (LRE) smith points out that there is no guide to finding the LRE for each type of disability.  Instead, the LRE is determined by what works best for each individual, it evolves as the child grows and changes, and it is the law that children with disabilities receive their education alongside their non-disabled peers (C. Smith, personal communication, July 13, 2020.  Smith mentions that finding the appropriate LRE for each child is sometimes a difficult balance between what the parents want, what the special education professionals recommend, and what the teacher feels is best.  She has had several conversations with both parents and teachers about finding that balance, and she finds it helpful to remind teachers that it is all about doing what is best for the student (C. Smith, personal communication, July 13, 2020).  Smith feels the best practice for teachers in helping determine a student's LRE is to put the child's needs first, be willing to try new ideas as students are being mainstreamed into the classroom, and do not be afraid to ask for help (C. Smith, personal communication, July 13, 2020). Currently, working to fulfill a child's Individualized Education Plan (IEP) and striving to provide the LRE, schools are facing tremendous difficulty.  Many of these students need inclusion support, supports through accommodations,  and other individualized academic supports that are difficult to provide in an at-home learning environment due to COVID-19.  Smith explains that our education system is designed to work in a school building with the support of professionals trained to manage the needs of multiple students, and they are finding it challenging to switch gears and create an at-home environment that meets the student's needs (C. Smith, personal communication, July 13, 2020).  As the first day of school approaches, schools are making plans to ensure all students' needs will be met, while anxiously awaiting new guidance as to what school will look like for everyone this fall.

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National Center for Learning Disabilities (NCLD)

The current pandemic has brought into view that our educational system was unprepared to meet the needs of a variety of learners with special needs.  This guide was created by the National Center for Learning Disabilities (NCLD) in partnership with 10 other organization to help schools evaluate their current educational technology and make a plan to improve as the new school approaches (National Center for Learning Disabilities, 2020).

Reference

National Center for Learning Disabilities. (2020, July 13). New resource: Inclusive technology during the COVID-19 crisis. Retrieved July 15, 2020, from https://www.ncld.org/news/resources-tools-covid-19/new-resource-inclusive-technology-during-the-covid-19-crisis/