Federal law governing the education of students with disabilities requires that children with disabilities receive a free and appropriate public education (FAPE) in the least restrictive environment (LRE). Due to the inclusion of special education students into regular classrooms, more educators must become familiar with the requirements of the federal IDEA 2004. Federal regulations to implement the reauthorized law were issued in 2006, and key changes are incorporated here.

Discipline

• In general, school officials can remove any child with a disability from his/her regular school placement for up to 10 consecutive school days at a time, even over the parents’ objections. However, school officials cannot use this authority to repeatedly remove a child from his/her current placement if that series of removals constitutes a change in placement. A change in placement occurs when:

• The removal is for more than 10 consecutive school days; or
• The child has been subjected to a series of removals that constitute a pattern: (1) because the series of removals total more than 10 school days in a school year; (2) because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in a series of removals; and (3) because of additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
• If a child with a disability is removed for more than 10 cumulative school days in a school year, FAPE must be provided. Also, within 10 school days of any decision to change the placement of a child, the school district must convene an Individualized Education Program (IEP) team [same as the Admission, Review and Dismissal (ARD) committee] meeting to determine whether the child’s behavior is related to the disability (manifestation determination). The reauthorized law clarifies that behavior is a manifestation of a disability only when it is caused by, or has a direct and substantial relationship to, the disability or when the conduct in question was the direct result of the district’s failure to implement the IEP. The IEP team also must develop a behavioral assessment plan or review and modify the plan if one has already been developed and implemented. If the IEP team concludes that a child’s behavior is not due to his/her disability, the child can be disciplined in the same way and for as long as nondisabled children, except that a FAPE must continue to be provided to the child with a disability. If the removal is not a change in placement, the IEP team must only meet if one or more members of the IEP team think modifications are necessary.

• School authorities can remove a child from his/her regular school placement for up to 45 school days at a time, without regard to a manifestation determination, if the child has brought a weapon to school or to a school function, knowingly possessed or used illegal drugs or sold or solicited the sale of controlled substances while at school or a school function, or has inflicted serious bodily injury upon another person while at school, on school premises or at a school function.

Serious bodily injury is defined in U.S. Code, Title 18, Section 1365(h)(3) as a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary, that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

• If school officials believe that maintaining a child’s current placement is substantially likely to result in injury to the student or others in the child’s regular placement, they can ask an impartial hearing officer to order that the child be removed to an interim disciplinary alternative educational placement for up to 45 days. If at the end of the disciplinary alternative educational placement school officials believe that it would be dangerous to return the child to the regular placement because the child would be substantially likely to injure him/her self in that placement, they can ask an impartial hearing officer to order that the child remain in the disciplinary alternative educational placement for an additional 45 days. If necessary, school officials also can request subsequent extensions of these interim disciplinary alternative educational settings for up to 45 days at a time if they continue to believe that the child would be substantially likely to injure him/her self or others if returned to the regular placement.

Eligibility
The law provides that a child shall not be determined to be a child with a disability if the determinant factor is:

(A) lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965);
(B) lack of instruction in math; or
(C) limited English proficiency.

Specific Learning Disability (SLD)
A student cannot be labeled with a SLD if the child’s low achievement is due to lack of appropriate instruction in reading or math. The U.S. Department of Education stated in comments accompanying the federal regulations that “Whether a child has received ‘appropriate instruction’ is appropriately left to State and local officials to determine.”

Additionally, the reauthorized law and regulations indicate that the traditional way of determining whether a child has a SLD, the “discrepancy” model, in which a severe discrepancy between IQ and achievement is found, is no longer in favor. The new regulations provide that states must adopt criteria for determining whether a child has a SLD, and the criteria cannot require schools to use the discrepancy model, but instead must permit the use of a process based on the child’s response to intervention (RTI). Accordingly, states can permit the use of discrepancy models, but it is more likely states will use other models, such as the research-based RTI.

Help for struggling learners
The reauthorized law allows schools to use up to 15 percent of the federal special education funds they receive to develop and implement coordinated, early intervention services for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3) who have not been identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment.

Personnel
Federal law states that paraprofessionals who are “appropriately trained and supervised” can “assist” in providing special education and related services. State law clarifies that aides can only be used to support special education instruction. Special education instruction can only be provided by properly certified professionals, even in disciplinary alternative education programs. State rules require aides who work with special education students to be certified.

Referral for special education services
State rules clarify that if a student continues to experience difficulty in the general classroom after the provision of intervention, district personnel must refer the student for evaluation for special services. Texas law provides that the district must conduct an assessment of the referred student within 60 calendar days of receipt of written consent for the evaluation from the parent/guardian. The IEP team must then meet to develop an IEP for the child within 30 days of the evaluation (or determination that the child needs special education services). The IEP must be implemented “as soon as possible” after the IEP team meeting, meaning “without undue delay.”

Who must attend IEP team meetings?
Federal law requires that at least one regular education teacher be a member of the IEP team (or ARD committee) if the student is or may be placed in a regular education setting. However, the law provides that members of the IEP team/ARD committee are not required to attend meetings if the parent of the student and the school district agree that the attendance of such member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting. If the member’s area of the curriculum is being discussed, the member can still be excused by submitting written input on the development of the IEP prior to the meeting.

Also the law allows the parent and the school district to agree to make changes to an IEP after the annual IEP meeting without convening another meeting, but by merely making the changes in writing; by allowing the IEP team to meet via conference call or video; and by requiring school districts to consolidate IEP team meetings as much as possible.

What if there is more than one regular education teacher responsible for implementing the IEP?
Only one is required to be part of the IEP team, but comments accompanying the federal regulations state that it should be a teacher who is or may be responsible for implementing a portion of the child’s IEP, so that the teacher can participate in discussions about how best to instruct the child.

What must the IEP contain?
The IEP must contain a statement of the program modifications or supports for school personnel that will be provided for the child. These are things that will help school personnel work more effectively with the child and could include special training for the child’s teacher. It must be enough information to enable teachers to understand what is required to effectively implement the IEP.

Who gets the IEP?
Current federal regulations require that the child’s IEP must be accessible to each regular education teacher and anyone else responsible for its implementation as soon as possible after it is finalized and before beginning work with the child (current Texas rules require that each teacher of the child be provided with a copy of the IEP). Each teacher who will provide services to the child must be informed of his/her specific responsibilities related to implementing the child’s IEP and the specific accommodations, modifications and supports that must be provided for the child in accordance with the IEP. Schools and teachers have continuing obligations to make good faith efforts to assist the child in achieving the IEP goals and objectives.

TCTA offers an online continuing professional education seminar relating to IDEA. Members can earn 1.25 CPE credit hours by taking “IDEA 2004, the final regulations,” which is available online.

Further information regarding IDEA can be accessed via the following Internet resources:

Federal regulations, state laws, and SBOE and commissioner rules for special education

U.S. Department of Education resources, IDEA 2004

A Guide to the Individualized Education Program:

State law regarding special education: (Texas Education Code, Chapter 29)

State regulations regarding special education and also this link.

Inclusion and ARDs for regular education teachers

A federal rule implementing IDEA requires that “to the maximum extent appropriate, children with disabilities…are educated with children who are nondisabled; and that…removal of children with disabilities from the regular [classroom] occurs only if the…disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

A district should not require a mainstream classroom teacher to choose between teaching students with disabilities and the rest of the class. State law says that in a mainstream classroom “students with disabilities and their teachers [must] receive the direct, indirect, and support services… necessary to enrich the regular classroom and enable student success.”

A state rule gives a mainstream classroom teacher the right to request support including, but not limited to, direct instruction, helping teacher, team teaching, aides, instructional modifications/accommodations, special materials or equipment, staff development, and reduction of the student-to-instructional staff ratio. The use of the phrase “including, but not limited to” gives teachers the right to ask for support not specifically included in the list, such as clerical help to assist with abundant modifications or paperwork. Another state rule gives teachers the right to request assistance with and modifications to individualized education programs.

IDEA 2004 changed requirements related to teacher participation in Admission, Review and Dismissal (ARD) meetings in some cases. If issues considered at an ARD meeting do not require a specific teacher’s participation, the parents and the district can agree in writing to have the teacher not attend. If a specific teacher’s participation is required, the parents and the district can agree to have that teacher provide information in writing, in lieu of attending.

Additional information and links to resources are available from the TCTA website. TCTA members who have questions or problems regarding inclusion issues may contact the TCTA Legal Department at (888) 879-8282.

Restraint of students with disabilities

Texas Education Agency rules (19 TAC, Sec. 89.1053) limit the use of physical force or a mechanical device that would significantly restrict the free movement of all or a portion of a student’s body.

The use of restraint must be:

• limited to such force as is reasonable to address an emergency,
• discontinued when an emergency no longer exists, and
• implemented to protect the health and safety of the student and others.

Exceptions
Actions that are not considered restraint include limited physical contact with a student to promote safety (e.g., holding a student’s hand), prevent a potentially harmful action (e.g., running into the street), teach a skill, redirect attention, provide guidance to a location, or provide comfort. Anyone who restrains a student must receive training within 30 school days, if not previously trained in restraint. The training must include prevention and de-escalation techniques, restraint alternatives, accepted practices and standards regarding behavior management.

If an employee restrains a student:

• a principal or designee must receive notice of the restraint that day,
• a good faith effort must be made that day to notify the student’s parent(s),
• written notice to the parent must be placed in the mail or given to the parent within one business day, and
• the student’s eligibility folder must contain documentation of the use of restraint.

The documentation of the restraint and the parent notice must include the who, what, when, where and how of the restraint, and a description of the conduct requiring the restraint and the alternatives and de-escalation attempted.

The rules also include limitations on the use of time-out and seclusion. Time-out occurs when a student is separated from other students for a limited period in a setting in which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object. The rules can be viewed online.

Web posted: 08/03/07