Panel Members:
Moderator
Tom Hehir, Director
Office of Special Education
Programs
Presenters:
Francisco Lopez, Attorney
Office of General Counsel
Jeanette Lim, Director
Program Legal Group
Office for Civil Rights
Anne Hoogstraten, Senior Staff Attorney
Program/Legal Group
Office for Civil Rights
* * * * *
Table of Contents:
- Introduction
- Overview - Section 504 of the Rehabilitation Act & Title II of the Americans with Disabilities Act
- Overview - Individuals with Disabilities Education Act (IDEA)
- Overview - IDEA Amendments of 1997
- Question #1 - Can a school district stop providing services to a special education youngster when he or she leaves the district to go to a charter school?
- Question #2 - When a child who has been labeled as a special education student transfers from one school district to another, does the student have to be placed within 30 days?
- Question #3 - When a child's parents decide they want to send their child to his charter school, and the school is a freestanding LEA, does the school have an obligation to provide a continuation of services?
- Question #4 - When you have a State, that on a routine basis, fails to comply with federal regulations, what can your office do to force them to come into compliance?
- Question #5 - Specifically, as a charter school, are we required to use the assessment provided by the district, or may we use independent assessments?
- Question #6 - How far do parents rights go in specifying what kind of intervention they can have for their child, such as ìI want this particular program delivered?
- Question #7 - If other schools in the district offer different kinds of services than our school, and a parent chooses to send their student to our school, do we have to change our program to accommodate them?
- Question #8 - Oftentimes, parents are pulling their kids out of special education to bring them to us. In that circumstance, when a kid comes to us, can the parent waive the IEP at that point?
- Question #9 - Can the child still have a disability but not require special education?
- Question #10 - If a student is over 18 and they choose to stop coming to school, at what point can we just withdraw them?
- Question #11 - Are other charter schools expressing the concern that local education districts are really trying to get rid of their special education kids?
- Question #12 - Is a charter school allowed to tell a prospective special education student that we really think that the more appropriate program is back with the child's school?
- Question #13 - What role does your office play in making sure that charter schools are compensated for providing special services?
Contents
The passage of IDEA `97 this past June clarified obligations to provide free appropriate educational services for students with disabilities attending public charter schools and the availability of IDEA funds for these students in charter schools. The relevant provisions of IDEA `97 were discussed during this workshop, and participants explored ways that public charter schools could ensure that their disabled students receive educational programs that are in full compliance with IDEA and other Federal
disability laws. The following are edited excerpts from the
workshop, with additional clarifications from the Office of Special
Education Programs and the Office for Civil Rights. This is not
intended to be a verbatim transcription.
P R O C E E D I N G S
INTRODUCTION
DR. HEHIR: My name is Tom
Hehir. I am the director of the Office of Special Education
Programs for the Department of Education here in Washington.
I am joined today by Jeanette
Lim from the Office for Civil Rights in the Department
of Education.
We are going to be speaking
today and, hopefully, answering questions. If this session is
anything like the last session, there will be one or two questions
about the applicability of federal laws regarding the education
of children with disabilities to charter schools. Specifically,
we will cover Section 504 of the Rehabilitation Act, the
Americans with Disabilities Act (ADA) and, most relevant,
the Individuals with Disabilities Education Act (IDEA),
the federal special education law.
Jeanette is going to begin
by giving us an overview of the fundamental civil rights protections
that children with disabilities have under Section 504 and the
Americans with Disabilities Act.
Section 504 of the Rehabilitation
Act & Title II of the Americans with Disabilities Act
MS. LIM: As Tom said, I am
from the Office for Civil Rights. Norma Cantu is the Assistant
Secretary.
As Tom indicated, there are
three federal statutes and actually two constitutional provisions
that define the legal obligations of States, school districts
and public schools, including public charter schools, with regard
to students with disabilities.
The IDEA, "Individuals
with Disabilities Education Act," will be discussed by Tom
after I am through discussing Section 504 of the Rehabilitation
Act of 1973. Regulations interpreting Section 504 are at 34 Code
of Federal Regulations, Part 104, in case you want to have resource
documents. I will also be discussing Title II of the Americans
with Disabilities Act (ADA), which also has interpretive regulations
available at 28 Code of Federal Regulations, Part 35.
The two constitutional provisions
that I referred to are the equal protection guarantees of the
Fifth and the Fourteenth Amendments.
Let me return to Section 504
and Title II of the ADA. Section 504 applies to any recipient
of federal financial assistance. To the degree charter schools
receive federal financial assistance, and to the degree that any
program or activity benefits from that federal aid, Section 504
requirements apply.
Title II applies to all services,
programs and activities provided or made available by public entities.
"Public entities" in those regulations that I cited
is broadly defined. Taken together Section 504 and Title II will
cover all public charter schools, because they are either a federal
fund recipient or a public entity. I will collapse the brief
discussion of the coverage and the requirements of these two laws.
The provisions of Section
504 and Title II are actually more extensive than the IDEA in
the types of disabilities that they cover and the class of individuals
that they protect. IDEA eligibility depends on whether a student's
disabilities require special education, defined as "specially
designed instruction." These students are also protected
by Section 504 and Title II. But some students with disabilities,
such as some students with orthopedic disabilities, would be covered
by Section 504 and Title II but not necessarily by IDEA. They
may be ineligible for special education and related services under
the IDEA, but would still be protected under Section 504 and Title
II.
With regard to a free and
appropriate public education (FAPE), Section 504 regulations
require the provision of FAPE -- that is, regular or special education
and related aids and services -- in the least restrictive environment.
Some students may be covered because they need related aids and
services but do not need special education. Though not required
by Section 504, one way of meeting the 504 requirements for FAPE
is through the individualized education plan (IEP) developed
in accordance with IDEA. Tom will speak much more extensively
about those requirements. Where a child with a disability is
ineligible for services under the IDEA, the FAPE requirements
of Section 504 and Title II then come into play.
That is general background.
I would like to turn it over now to Tom who can give you an overview
of the IDEA.
Individuals with Disabilities Education Act (IDEA)
DR. HEHIR: Thank you, Jeanette.
I am going to talk today about
how IDEA applies to charter schools. I think an important point
to make about IDEA is that IDEA came after Section 504 and certain
court cases-- that is, after the establishment of the fundamental
civil rights for children with disabilities to go to school, which
504 and these constitutional cases established. Prior to the
existence of 504, school districts discriminated against disabled
children by excluding them from public education.
It was a common practice.
School districts did, in pretty significant numbers, bar children
with disabilities from education. Estimates are that between
750,000 to one million children with disabilities were barred
from education prior to the passage of 504. IDEA came after 504,
as a continuation of the federal effort to help States educate
these children in public schools.
One of the things I want folks
to realize is that IDEA, from a government perspective, is referred
to as a "State grant program".
States do not have to participate
in IDEA; this is a voluntary program for States. By participating
in IDEA, which every State and the District of Columbia has chosen
to do, States seek funding from the federal government, and with
that funding come obligations in terms of special education for
children with disabilities. Currently, the federal government
funds about 10 percent of the total cost of educating children
with disabilities; the rest is borne by States and local governments.
All States participate in
IDEA, so every charter school as part of the State's educational
system, will have obligations under IDEA. The reason that most
States participate is that, even if IDEA did not exist, the fundamental
civil rights protections that exist under Section 504 would still
apply. Essentially, because of Section 504, States would still
have to do much of what they are required to do under IDEA.
From a legal perspective,
the federal government puts ultimate responsibility for the implementation
of IDEA on State departments of education. Although our monitors
visit local educational agencies (LEAs) and individual schools,
they do so in order to monitor how States meet their responsibilities
for implementing IDEA. That is an important distinction for you
all to understand, because States are whom we rely on to set up
a system to implement this program.
Generally, as a charter school,
you are all either public schools within school systems, or in
some States, freestanding LEAs. States have the responsibility
for establishing policies and procedures as to how they are going
to implement IDEA within each of those scenarios. You need to
be included in those implementation plans.
The way in which IDEA plays
out from State to State is different in some respects due to the
way in which States organize their service delivery system, and
that is okay. That is allowed under the federal statute as long
as the individual rights of kids are adhered to. Of course, the
way in which States have chosen to implement charter schools is
also different from State to State.
What is important for you
to understand is the interaction between how the State has implemented
IDEA and how they have implemented charter school laws. That
is really very important for you to understand at your State level.
In general, charter schools
are either organized as freestanding LEAs within States, they
are part of LEAs within States, or they are given the option to
choose one or the other. I know this is a gross simplification.
Again, it is also important to look at State law to understand
what your obligations are as well as the opportunities you have
in serving children with disabilities.
One of the things that I think
is extremely exciting about the charter school movement is that
you have the potential, and indeed many of you are actualizing
this potential, of offering an alternative for children in the
American education system.
Often, people increasingly
look to you to provide alternatives for kids who have not been
served well in the existing education system. As charter schools,
you are likely to have parents of kids with disabilities looking
very closely at you as a potential option for their children.
There are too many children
with disabilities in this country that have not received what
they should from the education system. That does not mean that
IDEA has not been a good law. We have made major strides in this
country in the past 22 years in improving education for children
with disabilities. We have increased employment for younger people
with disabilities, helped them leave our schools with much higher
rates of participation in post-secondary education, and we have
virtually eliminated institutionalization of students with mental
retardation in this country all since IDEA has been
passed.
You, as folks involved in
charter schools, I think, have a tremendous opportunity, particularly
as it involves children with disabilities, to be showing a better
way. Many of you are doing that all the time.
However, I have gone around
the country and I have met many parents of kids with disabilities
who praise what has happened for their children in charter schools.
They say that this has been a lifeline for their children who
have not performed well in more traditional schools. Again, I
think you have a tremendous opportunity for children with disabilities.
Let me talk about a couple
of things that I think are important for you to know and then
open up for questions, because last time we had more than we could
possibly answer.
IDEA Amendments of 1997
DR. HEHIR: One of the things
you need to know about, is that IDEA had significant amendments
to it in 1997 which specifically addressed charter school issues.
The president signed the reauthorization of IDEA on June 4 and
there were specific amendments that had to do with charter schools.
They reflect an affirmation that charter schools are responsible,
like other public schools are responsible, for implementing the
IDEA.
There is a very clear statement
in the Committee Report language. From my perspective, that is
not a change, we would always have interpreted law that way.
However, this statement makes it clearer.
The IDEA amendments allow
for federal funding to flow to charter schools in ways that they
have perhaps not previously flowed. Specifically, if a charter
school is a freestanding LEA, they must be treated in the same
way as other freestanding LEAs in the State in terms of being
able to apply for federal funds, which recently amounted to over
$600 per student. Again, charter schools are eligible to apply
for and receive these funds if they are freestanding LEAs. They
can also apply to the State directly, unless the State charter
school laws explicitly require that they join another LEA in their
application.
The other change which may
also have a fiscal impact, is that charter schools that are part
of a local school district, or LEA, have to be treated the same
way that other schools in the district are treated, as far as
federal funds and special education services are concerned. I
think that there is recognition, certainly among the administration
and among Congress, of charter schools' tremendous potential
for our American education system, and that this potential extends
to kids with disabilities as well.
As a legal matter, generally,
there are differences in how you would be treated under IDEA if
you are a freestanding LEA or if you are a part of a school district.
In general, if you are a freestanding LEA, you probably have
greater legal obligations than you would if you were part of a
local school district.
Essentially, the way that
you need to conceptualize yourself if you are a freestanding LEA,
is that you are like a small town in your State.
Many States have small LEAs,
but not all States do. Some of the States around here only have
county systems, but many States have small LEAs. Essentially,
you would have the same obligations as other small LEAs if your
charter school is a freestanding LEA. Many people look at that
and ask how a charter school can do all of these things.
Well, to some extent, the
good news is that States have had to deal with small LEAs ever
since the law was passed. Many States have regional programs
that help small LEAs meet special education needs. If they have
those in your State, and you are a freestanding LEA, you should
be connected to that system.
Some States have particular
funding mechanisms that are applied to small LEAs when they have
a high cost kid. Again, you should be connected to those funding
systems as you develop your charter schools.
A PARTICIPANT: Would you
mind repeating what you just said, connecting with the other networks?
DR. HEHIR: Again, I think
one of the important things, and this is advice, is that as a
freestanding LEA, one of the things that is likely to happen is
that you are going to have some demands made on you to implement
IDEA that may be difficult for you to meet.
I think it is extremely important
that you are connected to the same system that exists in the State
that would apply to small entities in that State in terms of supporting
your ability to serve kids who come to your door. Some States
have made those arrangements; others, I am not sure, based on
some of the questions that I heard this morning.
The important thing is that
if you are a freestanding LEA, you are likely to have significant
obligations under the Act. They are analogous, in general, to
the obligations that, in a very general sense, a small town school
system would have.
Again, from our perspective,
going back to the distinction I made in the beginning, if we require
States to implement the Act through its public education programs,
that would include you. If you are providers of educational services
in the State, which you certainly are as a LEA, then the State
has to have systems for you to successfully implement the Act.
You need to be part of that broad system, I believe, in order
to meet your obligations.
If you are part of an LEA,
generally, you should think of yourself as being treated in the
same way as another school in that LEA is treated, as far as IDEA
is concerned. That has to do with some basic fundamentals.
As "basic fundamentals,"
what we require under IDEA is that local education agencies have
child find efforts. You have to identify eligible children
with disabilities. You have to assess them to determine whether
or not they have disabilities and whether they need special education
and related services. You need to develop and implement an Individualized
Education Program (IEP) for each of those children found eligible.
Those children need to be
educated in what is referred to under the law as the least
restrictive environment, in general, in an integrated fashion.
Their parents have due process protections in relationship to
the IEP and the educational services that their children receive.
For example, they may request an administrative hearing if they
disagree with the proposed placement.
I think most people are familiar
with those fundamentals. As a practical matter, as a charter
school, you should have worked out, if you have not already, what
your participation in the child find system is. Who assesses
whether children have disabilities and what kind of team is available
to you? I think some folks are still working through some of
those issues.
As a general rule, I think
you should develop your program assuming that you are going to
have kids with disabilities in it, because kids have a right to
access your programs. The great majority of kids with disabilities
have what are called high incidence disabilities: learning
disabilities, emotional disturbance and mild mental retardation.
There will also likely be kids who have more unusual needs or
lowincidence disabilities. Sometimes these are more
intense needs and these parents are also going to want their kids
to go to your schools. Some of you may have organized yourselves
to serve some of those populations of kids. I understand there
are some charter schools that have focused on the needs of deaf
children, a low-incidence disability. Conversely, I know that
there are some charter schools that have focused on the needs
of kids with learning disabilities.
As a general rule, you need
to have the capability of evaluating children, developing IEPs
and providing the services that are likely to be required in your
school. You also need to have a mechanism for dealing with
the more complex needs. If you are part of a school system, an
overall school system, you need to have worked out with the central
office, or the special education office, exactly how you would
address those issues.
If you are a freestanding
LEA, you need to negotiate with the State department of education
how you can address those needs. This will generally be a similar
way to how State departments handle small LEAs, because almost
every State department has policies and procedures on how they
handle small LEAs, both from a fiscal perspective, as well as
for serving particularly lowincidence disabled students.
You need to be part of that, I believe, if you are going to be
able to do what you need to do to run the school.
Those are some of the basics
that I think are important for people who run charter schools
to know about in terms of the law. There are lots of other things,
but if this session is anything like the last session, the questions
are going to bring up every possible issue that you all have in
terms of serving kids with disabilities. I do not want to lecture
on any longer; I want to try to answer your questions.
QUESTIONS AND ANSWERS
Question #1
A PARTICIPANT: The school
district has stated that any youngster that is now identified
as a special education youngster who transfers to a charter school
will be dropped as a special education youngster and will not
receive district services until the youngster has been reevaluated,
whenever that takes place. Can a school district stop providing
services to a special education youngster when he or she leaves
the district to go to a charter school?
DR. HEHIR: If the charter
school is part of the school district, it is illegal. It is patently
illegal. A public entity, a local school district, cannot unilaterally
drop children from eligibility under IDEA because kids with disabilities
in public schools are entitled to certain due process protections.
The way in which we change eligibility under IDEA is through a
well-defined process set out in federal statute; you must
reevaluate the child, reviewing the data and the IEP, and give
the other protections of due process.
A PARTICIPANT: Why is it illegal,
just for my information?
Essentially, because, prior
to the existence of IDEA, children with disabilities were either
not served by education systems at all, or they were in the education
system and did not have their needs that arose out of their disabilities
addressed.
A PARTICIPANT: So it is by
federal statute?
DR. HEHIR: It is by federal
statute. Jeanette, do you want to say anything more?
MS. LIM: Yes. I was just
going to say that in addition to being based upon the concepts
of equal education opportunity, it is specific, tailored, individualized
treatment in order for that disabled student, who is qualified
by virtue of age and residency, to have a free appropriate public
education. That is fundamental; it is an entitlement.
A PARTICIPANT: But special
education must be continued? It cannot just be dropped by the
school district?
DR. HEHIR: It cannot.
MS. LIM: It cannot be dropped.
DR. HEHIR: What an IEP is
supposed to be doing is addressing the assessed needs of a disabled
child; what that child needs, based on their disability, to receive
an education.
Certainly all disabled kids
who are served under IDEA need something more or something different
or they would not be served under IDEA. Simply saying to a deaf
person, we are not going to discriminate against you, but we also
are not going to provide you with an interpreter if that is what
you need to be educated, is also discriminatory. Again, it is
fundamental civil rights.
Question #2
A PARTICIPANT: When a
child who has been labeled as a special education student transfers
from one school district to another, does the student have to
be placed within 30 days?
DR. HEHIR: There may be a
State law. What is required under the federal statute is that
if a child moves from one district in a State to another, their
IEP has to be implemented. That IEP can be reviewed, and the
IEP team may recommend changes that are consistent with the goals
and objectives of the curriculum of the charter school that they
are in, but that IEP is a legally binding document and it must
address the educational needs of the student. For example, where
a child with an IEP is enrolled in a charter school with an emphasis
on technology, and the IEP team believes that to meet the child's
educational needs, the IEP should address computer skills, then
the team must review and revise the IEP accordingly.
Question #3
THE PARTICIPANT: When
a child's parents decide they want to send their child to his
charter school, and the school is a freestanding LEA, does the
school have an obligation to provide a continuation of services?
DR. HEHIR: Where the charter
school is a freestanding LEA, that child continues to be entitled
to special education, but you must look to State law, policies,
and procedures, as to how the charter school must serve that student.
Some States establish educational service agencies that are designed
to cover several school districts. In States where this is the
case, you may want these service agencies to cover charter schools
as well. In other States, the responsibility to provide educational
services to a student with a disability enrolled in a charter
school that is a freestanding LEA, may fall squarely on the charter
school. Again, we look to the State as having the ultimate responsibility
for ensuring that there is a system in place for serving children
with disabilities who are enrolled in charter schools.
The reason we have these protections
is because, prior to federal law, school districts did not, in
general, provide for the needs of these kids. One of the reasons
that school districts did not is because there is cost involved,
but excluding kids on the basis of a disability is now illegal
in this country.
What we have said in the federal
statute backed up by the Constitution, the Fifth and the Fourteenth
Amendments, is that children with disabilities are entitled to
a free, appropriate public education. We say that such education
must address the needs that arise out of their disabilities.
The States have some degree
of flexibility in determining eligibility under IDEA, but there
is a baseline you cannot go below. In addition, all kids who
have an identified disability are covered under Section 504, even
if they do not need special education. That is a basic civil
rights protection.
Another question?
Question #4
A PARTICIPANT: When you
have a State, that on a routine basis, fails to comply with federal
regulations, what can your office do to force them to come into
compliance?
DR. HEHIR: Boy, that is a
great question. I get asked that by parents all the time.
We try to work with States
to move them into higher levels of compliance. Most States are
consistently moving towards higher levels of compliance, but that
is not always the case.
One of the vehicles we have
available to us is withholding funds. Under IDEA, the Department
of Education can withhold IDEA funds. We have withheld or considered
withholding, in several instances in the past. If there are systemic
violations of civil rights under Section 504, the Department can
seek to withhold all federal funds.
I used to work in Chicago
public schools where I was the Associate Superintendent. Prior
to my coming to Chicago, OCR would have withdrawn all $100 million
that Chicago public schools would potentially get in federal funds
if Chicago had not come into compliance with Section 504.
We have an additional enforcement
tool. We can refer noncompliance with IDEA to the Department
of Justice, which IDEA `97 makes clear. Again, one of the important
points that you need to know about IDEA, which is different from
504, is that we employ sanctions to States not directly to local
school districts.
Under the Office for Civil
Rights' authority, in cases where there has been disability,
gender, and/or racial discrimination at the school district level,
the sanctions can be applied to a local school district. That
was the case in Chicago; that was a 504 issue.
MR. LOPEZ: Before you move
on, I just want to say that we also have other enforcement options.
Withholding can be in whole or in part. We can try to get "cease
and desist orders." There is a mechanism for getting a
compliance agreement, where States continue to receive funds but
have a period of time, up to three years, for voluntary compliance
with the requirements. We have a whole bunch of enforcement options.
Question #5
A PARTICIPANT: Specifically,
as a charter school, are we required to use the assessment provided
by the district, or may we use independent assessments? In
other words, are we required to go through the entire district
assessment?
DR. HEHIR: Again, this is
complex in terms of "are you required." Perhaps "what
options do you have" may be a better way of looking at this.
THE PARTICIPANT: Okay.
DR. HEHIR: As a general rule,
you have to consider the assessment that you already have if it
is current.
Can you reevaluate the child?
Yes. Under the law, you would have to get the parent's permission
to do that. In terms of "who are the assessors"
and "what types of assessments go on," if it is an
independent evaluation, then that is something you can agree to
or that the parent can seek under IDEA.
I would strongly suggest -- this is technical assistance, this is not the official Department
position -- I would strongly suggest that you have your
own assessment capability in your building. I would say that
to other public schools as well. I think that it is important
to have assessment teams that are at least assigned to your building,
know your kids, know your school. I think that is when the process
works the best, when that occurs.
If you are a freestanding
LEA, it is more likely that you would have to develop that capacity
itself, and that may be good. If you are a part of an LEA, you
would have to negotiate with your LEA how all that works.
As a general rule, I think
it is better to try to have assessment teams associated with a
building or a group of buildings, and I would say that to public
schools as well as charter schools.
Question #6
A PARTICIPANT: How far
do parents' rights go in specifying what kind of intervention
they can have for their child, such as "I want this particular
program delivered?"
DR. HEHIR: Parents are part of the IEP and placement
teams; they are not unilateral dictators of how their child receives
services. They are a part of the IEP and placement teams. However,
they have, appropriately in my view, more real power because a
parent may say, "well, I don't like this, so I'm going to
go to request a due process hearing." Now, under the new
IDEA, they can also go to voluntary mediation from the State department
of education as an alternative to a hearing. But it is important
to note that parents are equal members of the teams.
THE PARTICIPANT: They have
recourse if they are not satisfied?
DR. HEHIR: They have recourse.
That is correct, they have recourse.
THE PARTICIPANT: Because
sometimes parents come to a nontraditional program and they want
that and more traditional things too.
DR. HEHIR: Again, the determining
factor should be the assessment of the child and the IEP. I mean,
there is not one model that serves all kids with disabilities.
I have not seen it yet, and I think it is unlikely to be developed
ever. Kids have individual needs and there is a process for making
those decisions. I mean, that parent may be right and may have
a right to those services.
Again, under IDEA, the driving
force for the decision-making process for all kids, whether
they are in charter schools or they are in traditional public
schools, is the assessment and the IEP of the child.
Question #7
THE PARTICIPANT: If other
schools in the district offer different kinds of services than
our school, and a parent chooses to send their student to our
school, do we have to change our program to accommodate them?
DR. HEHIR: You might. It
is difficult to address this in the abstract, but let me explain
some of the underlying principles. Kids with disabilities sometimes
need things done differently, not the standard way. That applies
in any education setting. Indeed, you may have to change your
program. Again, there are limits to what may you be required
to do, but you know, kids have different needs.
THE PARTICIPANT: I guess
I don't mean change our school program but change the way we provide
special education, you know, if we are staffing a certain way
and if what they want requires a whole new configuration.
MR. LOPEZ: You have to make
an individual determination about how to appropriately serve the
child's needs.
DR. HEHIR: Yes.
THE PARTICIPANT: And, if
we feel like we are meeting the needs?
MR. LOPEZ: Then that is your
decision, as long as the parent has been a participant in that
team, but it is not going to insulate you from the possibility
of a parent challenging that determination. However, as long as
you have involved the parent in the process, and you have used
your professional judgment, I think that is what the law generally
requires.
A PARTICIPANT: Can a parent
waive, elect to waive, an IEP or do they have to go through the
due process hearing? I mean, can they decide no, I don't want
to participate in this and the school can do what they want?
DR. HEHIR: Again, as a general
rule, parents do not have a right to waive their children's right
to an appropriate public education, as far as IDEA is concerned.
Now, if a school district and parents agree, after a reevaluation,
that the child does not need special education any more, that
is different, and the child would no longer be eligible under
IDEA.
There are instances where
there could be a conflict between what a parent and the school
district believe a child needs. Again, there is a process. The
IEP process is supposed to address those things. If the conflict
continues, parents also have a right to get an impartial determination
through an administrative hearing or they can go to mediation.
Yes, sir?
Question #8
A PARTICIPANT: As kind of
a follow-up to that -- the school that I am at -- quite often you get students who come to us with
IEPs where the IEP calls for individualized attention, smaller
classrooms and individualized assignments and those are all part
of our charter. Oftentimes, parents are pulling their kids
out of special education to bring them to us. In that circumstance,
when a kid comes to us, can the parent waive the IEP at that point?
DR. HEHIR: As a general rule,
what you should be doing in that situation is reviewing the IEP
to determine its appropriateness in meeting the needs of the student
and revising it consistent with the provisions of IDEA. In addition,
if in reviewing the IEP, you suspect that the child really does
not have a disability or does not need specialized instruction,
then you should reevaluate that child and, if appropriate, consider
declassifying her from special education.
There may be kids who were
not well-served by their former school district and have very
inappropriate IEPs, and that may be why the parents are coming
to your door, because they want something different for their
kids. In an instance like that, the child may still have a disability
and need specialized instruction, but they need to have a different
IEP, a better IEP, one that more accurately reflects their needs.
You would review and revise that IEP and develop a new IEP that
better fits the child. If the team suspects that this child does
not have a disability or does not need special education, then,
under the law, the team would propose to reevaluate that child
and, if appropriate, consider declassifying him.
Question #9
A PARTICIPANT: Can the
child still have a disability but not require special education?
DR. HEHIR: Yes. Again, this
happens with many kids with disabilities, particularly if they
have had a good program, whether it is in a public school or a
charter school. They may not need special education any more,
but they may still have a disability under Section 504 because
they need related aids and services. Those children are still
protected under Section 504 and should have 504 plans.
One of the people in the previous
session made a great comment. We have kids who are doing so well.
They are still disabled, but they do not need special education
any more. Some may need extended time on tests, which they may
be entitled to if they have a disability like dyslexia, for instance.
Those are the kids that may still be covered by Section 504, and
you should consider the need for 504 plans to meet their educational
needs and protect their interests as disabled kids.
Yes, ma'am?
Question #10
A PARTICIPANT: If a student
is over 18 and they choose to stop coming to school, at what point
can we just withdraw them? In other words, contact with them
has ceased, they do not respond to phone calls, they do not respond
to letters.
DR. HEHIR: There are two
things involved. One has to do with the age of eligibility, which
varies from State to State. You also need to know what your age
of majority situation is in your State and whether parental rights
under the IDEA transfer at the age of majority. Of course, the
parent of an eligible individual must still get notice of what
is happening regarding that individual's education.
You also need to know if you
have eligible students who, although above the age of majority,
are unlikely to be able to make their own decisions. They may
need guardianships even as adults. Some adults with disabilities
continue to have guardianship from parents or other significant
adults in order to make major life decisions. If that is the case,
you need to know it because the IDEA has new provisions that cover
such situations.
State law will govern most
of those decisions. In some States, the age of majority is age
18, and State law transfers parental rights at that point, but
kids with disabilities may continue to be eligible for services
until their 22nd birthday. In those States, if the
student is 18 and does not need guardianship, then she is an emancipated
adult capable of making informed decisions about her education.
As long as the parents receive notice, the school need only document
that they made available a free appropriate public education,
but that the individual has not responded.
Question #11
THE PARTICIPANT: I have one
other question, and it is more of a concern. We are a standalone
district. In other words, we are not part of the other district.
The bulk of our students who are under the age of 18 who come
to us are being referred from their local schools, because they
believe that we could most probably be a better place for them.
They are usually the very high discipline incident students.
My question is-- are other charter schools expressing the concern
that local education districts are really trying to get rid of
their special education kids?
DR. HEHIR: Well, the question
is what is meant by "get rid of." You could look at
this in two ways. One, you could look at this as easy marketing
for students to attend your school. I mean that very sincerely.
One of the people here in the last session was talking about
the fact that she has a charter school for the kids who have been
completely rejected by the system that they were in. These kids
have had a lot of discipline problems, and they have set up their
charter school for that purpose.
This is exactly what we would
like to see happening with charter schools, showing a better way.
You asked have we heard this.
Yes, we have heard this-- school districts refer students to
charter schools. The question is, again, are they referring children
directly to you to avoid serving them or are they recommending
that parents should consider your charter school as an appropriate
placement option?
Question #12
A PARTICIPANT: Is a charter
school allowed to tell a prospective special education student
that we really think that the more appropriate program is back
with the child's school?
DR. HEHIR: Oh absolutely.
There should never be an assumption that a charter school is
appropriate for every single type of child. We do not make that
assumption with other public schools. In general, what we find
is that school systems have to offer a continuum of services to
children with disabilities, that one size does not fit all. However,
charter schools that are freestanding LEAs will need to determine
what is an appropriate placement for the child and make arrangements
to ensure that the child has available a free appropriate public
education.
The point I tried to make
initially, and this is my recommendation to folks who are freestanding
LEAs, is that you should be treated in a very similar manner that
other small LEAs are treated in your State. If there is a specific
regional or State program that is more appropriate for a certain
kid that is part of your program, that is where it would be logical
for you to refer that child based on an appropriate evaluation
and an IEP.
Go ahead, Anne.
MS. HOOGSTRATEN: I just wanted
to jump in from my own perspective. I am a staff attorney at
OCR. I think there are a lot of unanswered questions in this
whole area.
The big underlying question
that keeps coming up that I hear is, when can I, as a charter
school, not accept a student with a disability? When is my school
the inappropriate placement? I do not think we have really answered
that question fully yet. I mean, I think the Department is working
towards it, but I do not think we have arrived at the answer.
THE PARTICIPANT: Can I give
you a scenario?
MS. HOOGSTRATEN: Please.
THE PARTICIPANT: A parent
has arrived. This is a parent of a child that has been with us
right from the very beginning, three years, and the issue is really
coming to a head. We have searched for an approach, shifted the
IEP, done everything we can to evaluate and try to implement new
steps to improve the performance of this child-- for naught.
Now we are at this meeting
and the special education director is there, I am there and the
teacher is there and she turns to the mother and says, have you
considered the local public school, perhaps as an alternative
since we are not able to meet this boy's needs? There was this
deadly silence. Nobody followed up.
Right after the meeting, the
special education director came in said, we can never ever say
such a thing again at a meeting like that, because we are not
in compliance. I thought it was an absolutely fair question.
DR. HEHIR: Well, he or she
has a point if your intent was to avoid your responsibility for
serving the student. What you need to be doing in a situation
like that is you need to be evaluating that child, developing
an IEP and recommending an appropriate placement for that child.
That placement could be in a specific program run by the school
district of residence. You would have to look to State law or
policy, or perhaps work out an agreement with that agency, but
certainly where the placement team determines that the child needs
a more intensive setting than can be offered in the charter school,
other options must be available.
An amorphous referral to the
local school district is not consistent with the law. In terms
of decision-making, the placement decision-making process for
children with disabilities is well specified in the law in relationship
to evaluations and IEP development. The IEP team's role
is to develop an appropriate IEP for that child. Then there needs
to be a placement team meeting, which can be the same meeting,
to determine what the appropriate placement is for that child.
This comes after the IEP is completed.
If you have not worked out
how you handle that and you are a freestanding LEA, I would say
contact your State department of education, you have a right to
have these kinds of things worked out, because the State is ultimately
responsible for implementing the Act.
We have been wrestling with
these issues for quite a while. Again, we view you all as a great
opportunity for kids. We want to make sure that kids with disabilities
are part of that opportunity, but that does not in any way take
away the legal complexities that exist in this area. In fact,
most of them exist for other public schools as well.
The good news is that States
have had 22 years of experience in working these things out at
the State level and how they handle these situations. We have
had to review how they handle these situations, to make sure they
are in compliance with federal law. My view is that you all need
to be part of that, and it will differ from State to State.
Another change in IDEA 1997,
which is charter friendly, is that charter schools have to be
represented on the State Advisory Panel for Special Education.
The State Advisory Panel for
Special Education is a very important group that oversees policy
developments in special education at the State level. Every State
must include a charter representative on their State advisory
panels.
Question #13
A PARTICIPANT: What role
does your office play in making sure that charter schools are
compensated for providing special services? Very often we
are experiencing being left holding the bag with high cost and
no mechanism and no necessary supports for how to get a fair shake
out of those limited existing dollars.
DR. HEHIR: I think that is
a great question. As far as the federal flow of funds to charter
schools, that has been addressed in the 1997 amendments. With
respect to charter schools that are part of a school district,
the LEA must serve children with disabilities attending those
schools in the same manner that it serves children with disabilities
in its other schools and must provide IDEA funds to those schools
in the same manner that it provides those funds to its other schools.
A State educational agency may not require a charter school that
is a freestanding LEA to jointly establish its eligibility for
federal funds unless it is explicitly permitted to do so under
the State's charter school statute. However, federal funds are
only a small piece of the money that ultimately would be needed
by a freestanding LEA to appropriately educate some children with
disabilities.
The overall issue of how charter
schools get access to State resources is a State concern. Of
course, we would hold a State accountable for implementing IDEA
across the board.
One of the things I have found
in a lot of the literature on charter schools is people arguing
they can do it better for cheaper, which is great. We are always
looking at ways to provide educational services in a cost-efficient
manner, but, as a general rule, kids served under IDEA are more
expensive to educate. Given that everybody here agrees and it
is the law, that kids with disabilities have the right to go to
charter schools, there needs to be built into the funding mechanism,
a way for charter schools to do what they want to do in terms
of educating children with disabilities.
That is fundamentally a State
concern. If a State makes a political decision to allow for public
charter schools, then there needs to be, just like there is for
other public schools, a way to fund those schools that allows
them to make it.
I do think there is a balance
here between federal, State and local roles. Again, I think one
of the things that Congress did, and I think very appropriately,
is to recognize charter schools in the amendments to IDEA `97
and recognize that they need to have a vehicle to access the federal
funds-- something that did not exist in the past.
If there are decisions being
made, as there obviously are, at the State level to encourage
development of charter schools, there needs to be a resource base
that is able to support the ability of charter schools to function.
Part of that resource base needs to factor in that you are going
to have kids with disabilities who are going to want to attend
your school, and most of those kids are going to have additional
costs associated with them. I believe those issues need to be
addressed up front, now, not later.
(Whereupon, at 4:55 p.m.,
the SESSION was adjourned.)
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