What is the FAPE standard under the IDEA?
In March 2017, the US Supreme Court, in Endrew F. v. Douglas County School District clarified the FAPE standard and ruled unanimously that IEPs must be "reasonably calculated to enable a child to make progress in light of the child's circumstances." The Court rejected the petitioner's view that the IDEA requires schools to provide educational opportunities for children with disabilities that are "substantially equal to the opportunities afforded [to] children without disabilities." However, the Court also rejected the view that schools, in order to meet their obligations under the IDEA, only have to provide "merely more than de minimis" education program to a student with a disability. The Court ruled that the "de minimis" test is not demanding enough, and said cogently that "[i]t cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not."
Do custodial and noncustodial parents have the same rights under FERPA?
Unless a judicial decree or court order identifies a specific person or persons to act as the “parent” under the IDEA or to make educational decisions on behalf of a child, or there is evidence that a biological or adoptive parent does not have legal authority to make educational decisions for the child, the rights accorded to parents, as that term is defined in the federal regulations at 34 C.F.R. 300.30, apply to both custodial and noncustodial parents. [34 C.F.R. § 300.30(b)(1) and (2)]
What is the purpose of the Individuals with Disabilities Education Act (IDEA)?
The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” [34 C.F.R. § 300.1(a)]
Are homeschooled or private school students who are eligible for special education entitled to all the special education and related services they would receive if they attended a public school district or charter school?
In Arizona, homeschooled students are considered private school students. [A.R.S. § 15-763(C)] The IDEA regulations state that “[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” [34 C.F.R. § 300.137(a)] (However, a parentally-placed private school student may be entitled to some services under the proportionate share and equitable service provisions of the IDEA. [See 34 C.F.R. § 300.130 – 300.144]) If an IEP team determines that the appropriate and least restrictive setting for a student is a private school, then this placement must be provided at no cost to the parent. [See § 300.146 for other responsibilities of the local education agency when a student is placed in a private school by the student’s IEP team] A determining factor is whether the student is unilaterally placed in a private school by his/her parents, or whether the IEP team determines that the most appropriate and least restrictive environment for the student is a private school.
What is the difference between “homebound,” “homeschool,” and “home instruction”?
Under Arizona law, “homebound” is a funding code for a student whose doctor has certified that the student is unable to attend regular classes due to illness, disease, accident or other health condition “for a period of not less than three school months.” The statute goes on to state that homebound also applies to a student with a chronic or acute health problem whose doctor certifies that the student is “unable to attend regular classes for intermittent periods of time totaling three school months during a school year.” [A.R.S. § 15-901(B)(14)]
“Homeschool” means a nonpublic school conducted primarily by the parent, guardian or other person who has custody of the child or nonpublic instruction provided in the child’s home. [A.R.S. § 15-802(G)(2)]
The regulations that implement the IDEA state that “[s]pecial education means specially designed instruction . . . including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.” [34 C.F.R. § 300.38(a)] (Emphasis added) The continuum of educational placements that schools must ensure includes “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” [34 C.F.R. § 300.115(a)] Accordingly, a student’s IEP team can determine that instruction at home is the most appropriate and least restrictive environment.
Is a school obligated to change a student’s schedule so that he/she can receive specially designed instruction or related services before or after regular school hours so that he/she does not miss out on class time in the general education environment?
No. “School day has the same meaning for all children in school, including children with and without disabilities.” [34 C.F.R. § 300.11] Further, the regulations that implement the IDEA presume that a student will not always be educated with his/her nondisabled peers, as evidenced by the requirement that each IEP contain an “explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in [special education and related services].” [34 C.F.R. § 300.320(a)(5)] Moreover, treating children with disabilities differently from their nondisabled peers (which could happen if children with disabilities have a longer school day than their non-disabled peers) may raise civil rights concerns.
Does a student eligible for special education have the right to attend his/her neighborhood school, the one he/she would attend if not disabled?
“The [United States] Department [of Education] has consistently maintained that a child with a disability should be educated in a school as close to the child’s home as possible, unless the services identified in the child’s IEP require a different location.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility, IEP, Educational Placement, Federal Register Vol.71, No. 156, p. 46588 (August 2006)] However, the IDEA “does not mandate that a child with a disability be educated in the school he or she would normally attend if not disabled.” [Id.] Further, the IDEA “does not require that each school building in [a school district] be able to provide all the special education and related services for all types and severities of disabilities.” [Id.] “[A] public agency may have two or more equally appropriate locations that meet the child’s special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.” [Id.]
Can a parent or a school tape record an IEP meeting?
Neither the IDEA nor its implementing regulations address the issue of tape recording IEP meetings, and Arizona has no law allowing or prohibiting this practice. Therefore, a school district or charter school may set the ground rules for recording IEP meetings, as long as those rules do not inhibit parental participation. [See Letter to Anonymous 40 IDELR 70 (OSEP 2003) and Letter to Doerr 213 IDELR 127 (OSEP 1988)]
Since IEPs are generally written for a year, do services that are missed during the school’s fall, winter, and spring breaks have to be made up?
The IDEA and its implementing regulations require schools to provide all children with disabilities between the ages of 3 and 21 a free appropriate public education (FAPE) designed to meet their unique needs. [34 C.F.R. § 300.1(a)] A FAPE is defined as special education and related services that are provided at public expense, under public supervision and direction, and without charge; meet the standards of the state education agency; and are provided to each child in conformity with his or her IEP. [34 C.F.R. § 300.17(d)] An IEP is a written statement for a child with a disability that is developed, reviewed, and revised in a meeting and that must include certain content. [34 C.F.R. § 300.320(a)] Among other things, each child’s IEP must include “a statement of the special education and related services and supplementary aids and services … that will be provided to enable the child to advance appropriately toward attaining the annual goals, and to be involved in and make progress in the general education curriculum, and the projected date for the beginning of the services, and the anticipated frequency, location, and duration of those services. [34 C.F.R. § 300.320(a)(4) and (7)] In discussing a school’s responsibility to meet the amount of service time specified in a student’s IEP, OSEP has stated that, “a school district is generally responsible for making alternative arrangements to provide the services set out in a student’s IEP when other school-related activities make either the student or the service provider unavailable during the time the service is regularly scheduled. However, it is not obligated to do so when the student is unavailable for other reasons . . .” Letter to Balkman 23 IDELR 646 (OSEP 1995)] Thus, it is not necessary to account for days when school is not in session. However, IEP teams should carefully describe the frequency and duration of service time in each child’s IEP in order to avoid misunderstanding. [See Letter to Matthews 55 IDELR 142 (OSEP 2010) for a detailed explanation of the terms frequency and duration]