Primers on Implementing Special Education in Charter Schools

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Background Presentation

This section is divided into two parts:

a discussion of the legal status of charter schools and their linkage to other local education agencies (LEAs), and
a synopsis of federal laws that are most relevant to special education in charter schools.

The content of this section is intended for those readers who may not fully understand the critical importance of a charter school’s legal status within a state’s public education system, or may not have a working knowledge of, or need a brief update on, federal special education laws and regulations.

Charter School Legal Status and Linkage to an LEA
Introduction
Charter schools must abide by federal special education laws and regulations because they are part of the public education system. However, the way this gets carried out in practice differs widely due to many factors, the most important of which are a charter school's legal identity and its linkage to a traditional LEA for purposes of special education. Familiarity with these concepts is critical to understanding a charter school's level of responsibility for special education.

How is the public education system structured and how do charter schools fit into it?
The elements of the public education system are:

the state education agency (SEA);
school districts (known in many states under different terms such as school district, parish, or LEAs); and
schools that are part of an LEA.

(Many states also include intermediate school districts/agencies as part of their system.)An LEA is usually defined as an entity that has responsibility for the education of all children who reside within a designated geographical area of a state. Charter schools do not completely fit into this definition since they are schools of choice and have responsibility only for students who are enrolled in the school. However, the regulations for the Individuals with Disabilities Education Act (IDEA) specifically include charter schools and clearly provide that "Children with disabilities who attend public charter schools and their parents retain all rights under this part" [CFR 34 Sec. 300.209].

The place a charter school occupies in the public education system depends on the charter school's legal identity, usually referred to as a charter school's LEA status. LEA status is assigned by the state charter school law or other state policy that is legally binding. However, status is not always clearly delineated and a charter school's legal status for special education may be different from its legal status for all other matters. Depending on the state in which it is located, an individual charter school may be classified as:

a separate LEA, or
part of another LEA.

In addition, some states allow charter schools to have either status based on a choice by the charter school or the authorizer who sponsored the school.

Why is charter school legal identity for special education important?
The exact nature of a charter school's identity for purposes of special education is important because, under federal requirements, an LEA has many more programmatic and financial responsibilities than a school that is only a part of an LEA. While the state is ultimately responsible for the education of all its resident children, states delegate responsibility to LEAs, e.g., states typically assign the responsibility to their LEAs for providing a free appropriate public education (FAPE). In addition, LEA status determines how funds for special education will flow to the charter school.

How does a charter school's LEA status impact its operations?
The major effect of a charter school's LEA status is the type of linkage that is mandated or voluntarily established between that charter school and a traditional LEA. In other words, a charter school's legal status is reflected in the way it relates to other LEAs. There are three types of linkage:

NO LINK: a charter school that is its own LEA has full responsibility for special education and usually has No-Link to another LEA (although a charter could negotiate some working relationship with an LEA if it chooses to do so);
TOTAL LINK: the charter is considered a part of an LEA and the LEA is responsible for the students with disabilities; and
PARTIAL LINK: the connection between a charter school and an LEA when there is a required or negotiated connection, e.g., the charter school has responsibility for services, but the child's home LEA carries out evaluation team tasks, or the charter school is responsible for only those services that can be delivered in the school and the LEA resumes responsibility when the child needs more specialized day or residential placement.

Relationship Between Legal Identity and Linkage

What are the indicators of linkage?
Since there may be a considerable amount of variability in the way linkage is enacted in a specific charter school, the types of linkage can be said to fall along a continuum. Often, the specifics of how linkage will work is described in a contract between a charter school and an LEA. The box below provides one way to determine the type of linkage a particular charter school has with a traditional LEA.

Indicators of a State's Linkage

Note:	The term "LEA" in these items refers to a traditional school district and does not mean a charter school that is its own LEA.

Yes No

	Does the LEA retain responsibility for student evaluations for special education eligibility?

	Does the LEA maintain or supervise the IEP team to develop, revise and implement a student's IEP and make placement decisions?

	Is the LEA responsible for hiring (or delegating the responsibility for hiring) qualified special education personnel?

	Is the LEA responsible for providing (or delegating responsibility for providing) a full continuum of placements?

	Do all federal, state and local special education dollars designated for charter schools flow through the LEA?

	If in describing your state you answered "yes" to most of these statements, your state is most likely a total-link state. Conversely, if you answered "no" to most of these statements, your state is most likely a no-link state. A mixture of "yes" and "no" responses indicates that your state is most likely a partial-link state.

Why is linkage important?
Linkage is important because it determines the way that responsibilities for special education evaluation and services will be carried out. While the widest degree of variability occurs in partial-link situations, assignment of responsibility can also vary in total-link and no-link states. Usually, state law is not completely clear about all the details of accountability for special education in charter schools, so the specifics have to be negotiated between the charter school and the LEA. Often, some responsibilities are assigned while other operational elements are not. It is critical for a charter school to arrange in advance and commit to writing as clearly as possible an understanding with the LEA(s) to avoid future problems.

How do charter schools access services from intermediate school districts/agencies?
Many states operate a network of intermediate school districts or agencies that provide a variety of services to schools in their geographic region; including services for students with disabilities. In some states, the intermediate districts/agencies are self-governing entities operated by members while in other states, the districts/agencies are authorized by state statutes and governed by the SEA. Individual state laws govern the relationship between charter schools and intermediate districts but, in general, if a charter school is an independent LEA, it should be able to access the same services provided to other districts by these intermediate entities. Similarly, if a charter school is part of a district, it should be able to obtain the same services that other schools in the district obtain.

Federal Laws Relevant to Special Ed in Charter Schools
Introduction
The following brief overview of federal education laws as they pertain to special education is intended to be an orientation for those who are not very familiar with this legislation. Links are included for locating the full text of these laws and/or their regulations.

Which federal laws are most relevant to special education in charter schools?
For charter schools, the federal laws (and their regulations) that have most relevance for implementing special education are the Individuals with Disabilities Education Act (IDEA); the Elementary and Secondary Education Act (ESEA), that was reauthorized in 2002 as the No Child Left Behind Act (NCLB); Section 504 of the Rehabilitation Act of 1973 (504); the Americans with Disabilities Act (ADA) and the Family Education Rights and Privacy Act (FERPA).

Are copies of these laws or regulations available on the Internet?
Yes.

IDEA: Revisions to the IDEA were enacted in December 2004 as P. L. 108-446. The regulations related to IDEA 2004 were issued in August 2006. Copies of both the law and the regulations and other techncial assistance related to them are available on the OSEP website at http://idea.ed.gov/explore/home and at http://www.nichcy.org/idea.htm

NCLB: Links to the law, regulations and policy guidance are available online at http://www.ed.gov/about/offices/list/oese/legislation.html#leg

504: Regulations can be found online at http://www.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html#D

ADA: Regulations and technical assistance are available
online at http://www.usdoj.gov/crt/ada/publicat.htm

FERPA: An explanation is available online at http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html and brochures about FERPA for schools and parents are available at: http://www.ed.gov/policy/gen/guid/fpco/ferpa/safeschools/index.html

Which federal agency is responsible for overseeing these laws?
In the U. S. Department of Education (ED), the Office of Special Education Programs (OSEP) is in charge of the IDEA, the Office for Civil Rights (OCR) is responsible for Section 504 and the ADA and the Office of Elementary and Secondary Education (OESE) manages the ESEA and NCLB. The Family Compliance Policy Office provides technical assistance for FERPA requirements.

Do students with disabilities have a federally protected right to attend charter schools?
Yes. Section 504 specifically prohibits discrimination solely on the basis of disability to public and private programs and activities that receive federal financial assistance. Children who attend charter schools are covered by these civil rights laws in the same way as children in any other public school.

What is the Individuals with Disabilities Education Act (IDEA)?
The IDEA provides federal financial assistance to state education agencies (SEAs) and local education agencies (LEAs) to guarantee special education and related services to eligible children with disabilities. Every state receives these funds and must follow all of IDEA's specific procedures, including those for an evaluation to determine if students are eligible for special education and the additional requirements for subsequent services and re-evaluation.

What are the basic requirements of IDEA?
The basic requirements, often discussed using a set of acronyms, are:

IEP: The term individualized education program (IEP) is used for both the team that meets to develop the child’s program and the written program. The IEP team composed of professionals and parents arranges for the child's evaluation, determines eligibility, decides on the individualized special education and related services for the child and prepares an IEP that contains specific content that must be reviewed at least annually. An IEP includes measurable annual goals, how the child will be included in state and district assessments and how the child will access the general education curriculum in order to meet state standards.
FAPE: Students with disabilities are entitled to a free appropriate public education (FAPE) provided at
no charge to parents.
LRE: The least restrictive environment (LRE) refers to placement in a setting that is the closest to the regular classroom. Students with disabilities must have available to them a continuum of placements that range from full time in a regular classroom to full time in a special setting. They are entitled to be placed in the setting that will meet their individual needs while removing them as little as possible from the regular classroom.

The OSEP website at http://idea.ed.gov/explore/home provides extensive information concerning specific requirements of the IDEA.

What does the IDEA say about charter schools?
The 2004 amendments to IDEA continued to affirm that students who attend charter schools are covered under this law. The law makes specific references to charter schools including the following provisions:

Children with disabilities who attend public charter schools and their parents retain all rights under IDEA.
Charter schools are included in the definition of an LEA when they are established as LEAs by state law.
Students with disabilities in charter schools that are part of an LEA must be served in the same manner as that LEA serves children with disabilities in its other schools including that the LEA must provide supplementary and related services on site at the charter school to the same extent to which the local educational agency has a policy or practice of providing such services on the site to its other public schools. The LEA must also provide funds under this part to those charter schools on the same basis as that LEA provides funds to the its other public schools, including proportional distribution based on relative enrollment of children with disabilities, and at the same time as the agency distributes other federal funds to the agency's other public schools, consistent with the state's charter school law.
A charter school that is its own LEA is responsible for ensuring that the requirements of IDEA are met unless state law assigns that responsibility to some other entity.
If a charter school is a school of an LEA that receives IDEA funding, the LEA is responsible for ensuring that the requirements are met, unless state law assigns that responsibility to some other entity.
Charter schools that are LEAs cannot be required to join with other LEAs to establish joint eligibility for funds. (States can require traditional LEAs to join together for funding purposes if they would not be able to establish and maintain programs of sufficient size and scope individually).
The state special education advisory panel must include a representative of charter schools.
Special education teachers in charter schools may not have to meet certification requirements in IDEA if their state's charter school law does not require that teachers in charter schools be certified.
Charter schools that are their own LEAs are specifically included in eligibility to access the resources of an LEA risk pool for high need children with disabilities if the state establishes such a fund.

These specific requirements involve a charter school's legal status as an LEA or part of an LEA. See Section I of this Background for a discussion of that concept.

What happens if a parent disagrees with the school about special education?
The IDEA contains procedural safeguards and due process rights for parents in the identification, evaluation and placement of their child. The law put various procedures in place for resolving conflicts between parents and schools. Parents must be provided with prior written notice of these rights at least once a year and at the time they request a due process hearing. Every state must have a formal complaint system and must provide for mediation and due process hearings to settle conflicts.

Are there children with disabilities who may not be covered by IDEA?
Yes. To be eligible under IDEA, children must meet the criteria of one of the specific disability categories as defined in the law. However, children who are not eligible under IDEA may qualify as students with disabilities under Section 504.

How do Section 504 and the ADA differ from IDEA?
Section 504 and the ADA define disability much more broadly than the IDEA. They include any individual who has a physical or mental impairment that substantially limits one or more life activities, or who has a record of such an impairment, or who is regarded as having such an impairment. Reasonable accommodations are required by both of these laws and Section 504 goes further by specifically requiring the provision of educational and related aids and services that are designed to meet the individual educational needs of the child. The exact wording of the definitions in the regulations for IDEA and Section 504 are as follows:

IDEA REGULATIONS:
§300.8 Child with a disability.
(a) General. (1) Child with a disability means a child evaluated in accordance with §§300.304 through 300.311 as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§300.304 through 300.311, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part.
(ii) If, consistent with §300.39(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged three through nine experiencing developmental delays. Child with a disability for children aged three through nine (or any subset of that age range, including ages three through five), may, subject to the conditions described in §300.111(b), include a child--
(1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related services.
SECTION 504 OF THE REHABILITATION ACT OF 1973—REGULATIONS:
34 CFR 104.3
(j) Handicapped persons (1) Handicapped persons means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, and/or genitourinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(ii) Major life activities mean functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

What are some examples of disabilities that may be covered under Section 504 but not by the IDEA?
Children who have chronic illnesses such as diabetes, or a physical impairment, such as those connected with cerebral palsy, may require specific accommodations or services, but may not meet the criteria of the IDEA definitions or additional specifications applied through state law. Such children are entitled to an evaluation and to FAPE if they are found to meet the definition of "handicapped person" as specified in the law. A 504 plan is usually written in these cases. Further details are available in the document Frequently Asked Questions about Section 504 and IDEA available online at http://www.ed.gov/about/offices/list/ocr/504faq.html?exp=0

Are funds available under Section 504?
No, there are no funds available as part of Section 504 and IDEA funds may not be used to serve children who are eligible only under Section 504.

What requirements about accessibility of facilities do charter schools have to follow?
The state and federal requirements for accessibility of facilities are complex. It is important that authorizers and operators of charter schools have appropriate legal and technical assistance on this topic. Federal regulations can be found online at http://www.usdoj.gov/crt/ada/publicat.htm

What parts of NCLB are particularly relevant to students with disabilities?
There are many parts of NCLB that pertain to students with disabilities in charter schools, but the most relevant ones are the accountability requirements related to assessment and highly qualified teachers.

What NCLB assessment requirements pertain to students with disabilities?
Charter schools are subject to the same Title I accountability requirements as other public schools in a state and all state charter laws currently require charter schools to participate in their state's assessment system for public schools. Policy guidance for NCLB says a state's assessment system must be designed to be valid and accessible for use by the widest possible range of students, including students with disabilities. The participation of students with disabilities in such assessments is covered in the IDEA and requires the following:

Students with disabilities must be included in state and district-wide assessment programs with appropriate accommodations if necessary.
Alternate assessments must be provided for those children who cannot participate in state and districtwide assessment programs even with accommodations.
The IEP for all students with disabilities will specify how they will participate in state assessments.

It is important to note that procedures for the inclusion of all students with disabilities in large scale assessments is a developing area of knowledge and practice. Extensive resources on this topic are available at the website of the National Center on Educational Outcomes at http://www.education.umn.edu/nceo/

Are students with disabilities included in their state's adequate yearly progress (AYP) requirements?
Yes. As stated in NCLB, AYP applies the same high standards of academic achievement to all public elementary and secondary school students in the state. The law also requires selected subgroups, one of which is students with disabilities, to be considered separately under certain conditions in determining whether a school has met AYP targets.
An important part of the NCLB regulations, known as "the one percent rule" that applies to students with significant disabilities, was added to the NCLB regulations in December 2003. The Department of Education has issued a summary of that rule that is available at http://www.usu.edu/mprrc/workgroups/ci/011404Material1.pdf
In addition, another regulation, known as the "two percent rule" was added to NCLB in 2007 - see http://www.ed.gov/policy/speced/guid/modachieve-summary.html

How must students with disabilities be included in NCLB accountability reports?
Students with disabilities is one of the subgroups for which NCLB requires disaggregated reports of assessment results. However, NCLB provides that a state may not use disaggregated data for one or more subgroups to report achievement results if the number of students in those subgroups is insufficient to yield statistically reliable information or if the results would reveal personally identifiable information about an individual student. Each state has established the minimum size (known as the "minimum n") of the subgroup for these two purposes that must be met for inclusion in public reporting.

Which NCLB teacher qualification requirements pertain to students with disabilities?
It is important to note that the NCLB law does not specifically refer to the teachers who provide special education services - that issue is covered in the IDEA law and regulations. In addition, state laws and policies that cover certification for charter schools must be carefully reviewed by everyone involved with charter schools. The IDEA special education teacher qualification requirements are complex and are quoted in full from the 2004 IDEA Regulations as follows:

§300.18 Highly qualified special education teachers.
(a) Requirements for special education teachers teaching core academic subjects. For any public elementary or secondary school special education teacher teaching core academic subjects, the term highly qualified has the meaning given the term in section 9101 of the ESEA and 34 CFR 200.56, except that the requirements for highly qualified also--
(1) Include the requirements described in paragraph (b) of this section; and
(2) Include the option for teachers to meet the requirements of section 9101 of the ESEA by meeting the requirements of paragraphs (c) and (d) of this section.
(b) Requirements for special education teachers in general. (1) When used with respect to any public elementary school or secondary school special education teacher teaching in a State, highly qualified requires that--
(i) The teacher has obtained full State certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, highly qualified means that the teacher meets the certification or licensing requirements, if any, set forth in the State's public charter school law;
(ii) The teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
(iii) The teacher holds at least a bachelor’s degree.
(2) A teacher will be considered to meet the standard in paragraph (b)(1)(i) of this section if that teacher is participating in an alternative route to special education certification program under which--
(i) The teacher--
(A) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;
(B) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;
(C) Assumes functions as a teacher only for a specified period of time not to exceed three years; and
(D) Demonstrates satisfactory progress toward full certification as prescribed by the State; and
(ii) The State ensures, through its certification and licensure process, that the provisions in paragraph (b)(2)(i) of this section are met.
(3) Any public elementary school or secondary school special education teacher teaching in a State, who is not teaching a core academic subject, is highly qualified if the teacher meets the requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and (b)(2) of this section.
(c) Requirements for special education teachers teaching to alternate achievement standards. When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under 34 CFR 200.1(d), highly qualified means the teacher, whether new or not new to the profession, may either--
(1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56 for any elementary, middle, or secondary school teacher who is new or not new to the profession; or
(2) Meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards, as determined by the State.
(d) Requirements for special education teachers teaching multiple subjects. Subject to paragraph (e) of this section, when used with respect to a special education teacher who teaches two or more core academic subjects exclusively to children with disabilities, highly qualified means that the teacher may either--
(1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56(b) or (c);
(2) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under 34 CFR 200.56(c) which may include a single, high objective uniform State standard of evaluation (HOUSSE) covering multiple subjects; or
(3) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate, not later than two years after the date of employment, competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under 34 CFR 200.56(c), which may include a single HOUSSE covering multiple subjects.
(e) Separate HOUSSE standards for special education teachers. Provided that any adaptations of the State’s HOUSSE would not establish a lower standard for the content knowledge requirements for special education teachers and meets all the requirements for a HOUSSE for regular education teachers-–
(1) A State may develop a separate HOUSSE for special education teachers; and
(2) The standards described in paragraph (e)(1) of this section may include single HOUSSE evaluations that cover multiple subjects.
(f) Rule of construction. Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular SEA or LEA employee to be highly qualified, or to prevent a parent from filing a complaint under §§300.151 through 300.153 about staff qualifications with the SEA as provided for under this part.
(g) Applicability of definition to ESEA; and clarification of new special education teacher. (1) A teacher who is highly qualified under this section is considered highly qualified for purposes of the ESEA.
(2) For purposes of §300.18(d)(3), a fully certified regular education teacher who subsequently becomes fully certified or licensed as a special education teacher is a new special education teacher when first hired as a special education teacher.
(h) Private school teachers not covered. The requirements in this section do not apply to teachers hired by private elementary schools and secondary schools including private school teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities under §300.138.
(Authority: 20 U.S.C. 1401(10))