Individuals with Disabilities Education Act

WHAT KIND OF STUDENT CONDUCT DO THEY HAVE TO TELL ME ABOUT? You are entitled to notification when a to register as a sex offender. indecent exposure; student under your supervision has a (Texas Code of Criminal Procedure, Article • Retaliation against a school employee; criminal history for these offenses: 15.27) • Any of the following on school property • Any felony; • The following misdemeanors: unlawful restraint, indecent exposure, assault, deadly conduct, terroristic threat, engaging in organized criminal activity; • Unlawful use, sale or possession of a controlled substance, drug paraphernalia, or marijuana; • Unlawful possession of a weapon. (Texas Code of Criminal Procedure, Article 15.27) You are entitled to notification when a student under your supervision is subject to removal to a DAEP or expulsion for these acts: • False alarm, report or terroristic threat involving a public school; • Any of the following within 300 feet of a school: conduct punishable as a felony; assault; sale, delivery or possession of marijuana, controlled substance or a dangerous drug; possession, delivery • or while attending a school-sponsored event: use, exhibition or possession of a firearm, illegal knife or club; conduct that contains the elements of aggravated assault, sexual assault or aggravated sexual assault; arson; murder or attempted murder; indecency with a child; aggravated kidnapping; aggravated robbery; Severe or persistent misbehavior while You are entitled to notification when a or sale of alcohol, or being under the placed in a DAEP. student under your supervision is required influence of alcohol; public lewdness; (Texas Education Code §§ 37.006-37.007)

Individuals with Disabilities Education Act (IDEA)

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. Due to the inclusion of special education students in regular classrooms, educators need to know the requirements of the federal IDEA 2004.

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

A student cannot be labeled with an 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 an SLD, the “discrepancy” model, in which a severe discrepancy between IQ and achievement is found, is no longer in favor. The regulations provide that states must adopt criteria for determining whether a child has an 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. Accordingly, states can permit the use of discrepancy models, but it is more likely states will use other models, such as the research-based “response to intervention.” For further information on RTI, see tcta.org/rti.

Help for struggling learners

The reauthorized IDEA allows schools to use up to 15% 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 be provided only 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. TEA has further clarified that Continued

response to intervention is not required prior to any special education referrals, that a referral can be made at any time during the RTI process (a child need not advance through each tier of an RTI system before a special education referral is made) and that timely referral for evaluation under the IDEA is made if, after an appropriate amount of time, the student is not making adequate progress. Generally the district must conduct an assessment of the referred student within 45 school days of receipt of written consent for the evaluation from the parent/ guardian. Certain exceptions apply when parent consent is given close to the end of the school year. DISCIPLINE UNDER IDEA

Removal/change of placement

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 totals 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.

Removal for more than 10 days

If a child with a disability is removed for more than 10 cumulative school days in a school year, a free and appropriate public education 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 team [same as the admission, review and dismissal 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

TCTA ONLINE TRAINING ON RTI

Watch TCTA’s online CPE video “Response to Intervention: A System of Support for Students and Teachers,” at tcta.org/seminars to earn 1.25 CPE credit hours.

The Individualized Education Program 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 delay. change in placement, the IEP team must only meet if one or more members of the IEP team think modifications are necessary.

Removal for serious offenses

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 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.

Removal to a disciplinary alternative setting

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 program for up to 45 days. If, at the end of the DAEP 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/herself or others in that placement, they can ask a hearing officer to order that the child remain in the DAEP for an additional 45 days. If necessary, school officials also can request subsequent extensions of these interim DAEP placements for up to 45 days at a time if they continue to believe that the child would be substantially likely to injure him/herself or others if returned to the regular placement.