Students with Disabilites

 

What laws govern the education of children with disabilities?

 

The following statutes and their accompanying regulations govern the education of children with disabilities:

 

• The federal Individuals with Disabilities Education Act (IDEA), which affords all eligible children with disabilities the right to a free appropriate public education in the least restrictive environment (20 USC §§ 1400–1482; 34 CFR Part 300).

• Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability (29 USC §§ 701, 705, 794; 34 CFR Part 104).

• Title II of the Americans with Disabilities Act of 1994, which prohibits discrimination on the basis of disability (42 USC §§ 12101–12213).

• Article 89 of the New York State Education Law and part 200 of the commissioner’s regulations, which also serve as the primary vehicle for implementing IDEA requirements in New York State.

 

On occasion, there is a lag between changes in the federal statutes and regulations and the incorporation of those changes into state law and regulations. During such lags, school districts nonetheless are bound by the federal requirements, except with respect to those instances where New York State law and regulations confer greater rights on students with disabilities. For further information, see NYS Education Department, New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy (revised Feb. 2016), at:

 

http://www.p12.nysed.gov/specialed/idea/part-b-app/608-Analysis-Chart-rev-Feb-2016.pdf

 

What is the definition of a child with a disability?

 

Generally, a child with a disability is one who falls within one of the classifications set forth in the Individuals with Disabilities Education Act (IDEA) and section 200.1(zz) of the commissioner’s regulations, and who, because of this, needs special education or related services (20 USC § 1401(3)(A); 34 CFR § 300.8; 8 NYCRR § 200.1(zz)). 

 

The classifications include children who suffer from: an intellectual disability; hearing impairments, including deafness; speech or language impairments; visual impairments, including blindness; emotional disturbance; orthopedic impairments; autism; traumatic brain injury; other health impairments; or specific learning disabilities. The category of emotional disturbance does not apply to students who are just socially maladjusted (34 CFR § 300.8(c)(4); 8 NYCRR § 200.1(zz)(4); P.C. & M.C. v. Oceanside UFSD, 818 F.Supp.2d 516 (E.D.N.Y. 2011).

 

Children who do not fall under any of those classifications, nonetheless, may be entitled to special education and related services pursuant to section 504 of the Rehabilitation Act of 1973 (section 504) and the Americans with Disabilities Act (ADA), both of which contain a broader definition as to who may be deemed an individual with a disability (P.C. & M.C. v. Oceanside UFSD; Maus v. Wappingers CSD, 688 F.Supp.2d 282 (S.D.N.Y. 2010)

 

Under section 504, an individual with a disability includes any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such an impairment, or is regarded as having such an impairment (29 USC § 705(20)(B); 42 USC § 12102). The ADA extends its benefits to disabled individuals “who, with or without reasonable modifications to rules, policies or practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity” (42 USC § 12131(2)).

 

Federal regulations implementing section 504 expressly impose on school districts an obligation to provide a free appropriate public education in the least restrictive environment. Implementation of an individualized education program developed in accordance with the IDEA is only one means of meeting this obligation (34 CFR §§ 104.33(b)(1), (2), 104.34(a), (b)).

 

What is the definition of a “free appropriate public education”?

 

A free appropriate public education (FAPE) consists of special education and related services provided to an eligible child with a disability at public expense under public supervision and direction, and in conformity with an individualized education program that is tailored to meet the unique needs of that student (20 USC § 1401(9); 34 CFR § 300.17). School districts must make a FAPE available to all eligible children with disabilities, regardless of the severity of their disability (20 USC § 1412(a)(1)(A), (3), (4), (5)(A); Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); or their ability to benefit from special education (Timothy W. v. Rochester, N.H. Sch. Dist., 875 F.2d 954 (1st Cir.).

 

However, a school district is not obligated to provide an optional program or to match or surpass a program offered by a private school (Matter of a Handicapped Child, 26 Ed Dept Rep 70 (1986)). In addition, the fact that a student is not performing at the same level as his or her general education classmates does not constitute a denial of FAPE. Academic progress must be viewed in light of the limitations of the child’s disability (H.C. v. Katonah-Lewisboro UFSD, 528 Fed. Appx. 64 (2d Cir. 2013)).

 

What is the definition of special education?

 

Special education means specially designed individualized or group instruction or special services or programs provided at no cost to the parent to meet the unique needs of an eligible student with a disability. It may include instruction conducted in the classroom, homes, hospital, and other settings, special classes and resource rooms, consultant teacher services, related services, and special transportation (20 USC § 1401(29); 34 CFR § 300.39; Educ. Law § 4401(2); 8 NYCRR § 200.1(ww)). Specially designed instruction refers to instruction adapted, as appropriate, to meet the needs of an eligible student with a disability (20 USC § 1401(29); 34 CFR § 300.39(b)(3); 8 NYCRR § 200.1(vv)).

 

What are related services?

 

Related services consist of transportation and such developmental, corrective, and other supportive services as may be required to assist a child with a disability, including the early identification and assessment of disabling conditions in students, speech-language pathology, and audiology services; interpreting services; psychological services; physical and occupational therapy; school social work services; counseling services (including rehabilitation counseling, orientation, and mobility services); medical services for diagnostic and evaluation purposes only; parent counseling and training; school health services and school 

nurse services; assistive technology services, other appropriate developmental or corrective support services; appropriate access to recreation (including therapeutic recreation), and other appropriate support services (20 USC § 1401(26); 34 CFR § 300.34; Educ. Law § 4401(2)(k); 8 NYCRR § 200.1(qq), (ss)).

 

Related services do not include a medical device that is surgically implanted, or the maintenance, programming, or replacement of such a device or an external component of the device (Id.; 34 CFR § 300.113(b)(2); 8 NYCRR § 200.1(qq)(1)). Neither do they include the optimization of that device’s functioning (34 CFR § 300.34(b)(1); 8 NYCRR § 200.1(qq)(1)). However, a school district must routinely check an external component of a surgically-implanted device to make sure it is functioning properly (34 CFR §§ 300.34(b), 300.113(b); 8 NYCRR § 200.1(qq)(1)(iii)).

 

What is an individualized education program?

 

An individualized education program (IEP) is a written statement outlining the plan for providing an educational program for a disabled student based on the unique needs of that student. It must include, for example:

 

• The classification of the student’s disability.

• The student’s present levels of academic achievement and functional performance, and the individual needs of the student in the areas of academic achievement, functional performance and learning characteristics, social and physical development, and management needs.

• Measurable annual goals consistent with the student’s needs and abilities to enable the student to be involved in and progress in the general education curriculum and meet the student’s other educational needs related to his or her disability. How the student’s progress toward meeting the annual goals will be measured and when the student’s parents will be informed of that progress.

• Short-term instructional objectives and benchmarks for students who take a New York State alternate assessment and for preschool students with a disability.

• Recommended special education program and services that, to the extent practicable, are based on peer reviewed research.

• Any testing accommodations to be used consistently by the student in the recommended educational program and in the administration of districtwide and state assessments necessary to measure the student’s academic achievement and functional performance.

• For a student participating in an alternate assessment, the reasons why the student cannot participate in the regular assessment and why the alternate assessment selected is appropriate.

• The extent to which the student will or will not participate in the regular education program or appropriate activities with age-appropriate nondisabled peers.

• Transition services to facilitate the student’s movement from school to post-school activities, beginning no later than the first IEP to be in effect when the student is age 15 (or younger if appropriate).

• Information necessary for the provision of services during the months of July and August to a student eligible for a 12-month service and/or program.

• The projected date for an annual review of the student’s IEP.

• The student’s recommended placement (20 USC §§ 1401(14), 1414(d)(1)(A); 34 CFR §§ 300.22, 300.320–324; 8 NYCRR  

§§ 200.1(y), 200.4(d)(2)), which refers to the type of program a student will attend, rather than a specific school (R.B. v. N.Y. City Dep’t of Educ., 603 Fed. Appx. 36 (2d Cir. 2015); T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009)).

 

IEPs must be in a form prescribed by the commissioner of education (8 NYCRR § 200.4(d)(2); see NYS Education Department, Questions and Answers on Individualized Education Program (IEP) Development, the State’s Model IEP Form and Related Documents (updated April 2011), at:

 

http:www.p12.nysed.gov/specialed/formsnotices/IEP/training/questions.htm

 

Although they are not required to maximize a disabled child’s potential, IEPs must be likely to produce progress and provide for more than trivial advancement; T.P. ex. rel. S.P. v. Mamaroneck UFSD, 554 F.3d 247 (2d Cir. 2009); see also Cerra v. Pawling CSD 427 F.3d 186 (2d Cir. 2005)).

 

School districts must ensure that each student with a disability has an IEP in place at the start of each school year (34 CFR § 300.323(a); 8 NYCRR § 200.4(e); T.C. & A.C. v. N.Y. City Dep’t of Educ., 2016 U.S. Dist. LEXIS 112977 (S.D.N.Y. 2016); Tarlowe v. N.Y. City Dep’t of Educ., 2008 U.S. Dist. LEXIS 52704 (S.D.N.Y. July 3, 2008); Application of the Bd. of Educ. of the [Redacted] Sch. Dist., SRO dec. no. 10-006 (2010)).

 

School districts also must ensure that personnel responsible for implementing or assisting in the implementation of an IEP understand their responsibilities and receive a copy of the IEP or be able to access it electronically (34 CFR § 300.323(d); Educ. Law § 4402(7); 8 NYCRR §§ 200.2(b)(11), 200.4(e)(3), 200.16(f)(6)).

 

What is the meaning of the term “least restrictive environment”?

 

The term least restrictive environment (LRE) refers to the setting in which students with disabilities are educated and the obligation to ensure that, to the maximum extent appropriate, they are not placed in special classes, separate schools, or otherwise removed from the regular educational environment unless the “nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” (20 USC § 1412(a)(5)(A); 34 CFR §§ 300.114–120; 8 NYCRR § 200.1(cc)). Supplementary aids and services refers to aids, services and other supports that are provided in regular education classes or other education-related settings and extracurricular and nonacademic settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate, in accordance with LRE requirements (20 USC § 1401(33); 34 CFR §§ 300.42, 300.107, 300.117; 8 NYCRR § 200.1(bbb)). LRE requirements apply in the same way to extended school year placements as they apply to school-year placements (T.M. v. Cornwall CSD, 752 F.3d 145 (2d Cir. 2014);).

 

School districts may not remove a student with disabilities from education in an age-appropriate classroom solely because of needed modification in the general curriculum (see Application of a Child with a Disability, SRO dec. no. 93-35 (1993)). Neither may school districts remove a disabled child from the regular education environment on the basis that the child might make greater academic progress in a segregated special education class (see Oberti v. Bd. of Educ. Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir. 1993)).

 

Students who must be removed from regular classroom instruction must be provided services within a continuum of services and a continuum of placement options that provide the individualized special education needed by the student, and for the education of the student, to the maximum extent appropriate to the needs of the student, with other students who do not have disabilities. It also must be as close as possible to the student’s home (34 CFR §§ 300.114(a)(2)(i), 300.115, 300.116(b)(3); 8 NYCRR § 200.1(cc)).

 

In addition, LRE requirements must be balanced against the requirement that students with disabilities receive an appropriate education (T.M. v. Cornwall CSD, 752 F.3d 145 (2d Cir. 2014); Briggs v. Bd. of Educ. of the State of Conn., 882 F.2d 688 (2d Cir. 1989); see 34 CFR § 300.116(d); P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008)).

 

Placement of a student with a disability in an integrated co-taught classroom where there could be as many as 12 other students with disabilities alongside general education students does not violate LRE requirements. A student with a disability is not entitled to a regular education classroom in which he or she is the only student with an IEP (M.W. v. N.Y. City Dep’t of Educ., 725 F.3d 131 (2d Cir. 2013)).

 

What is the meaning of the term “continuum of services”?

 

The term continuum of services refers to an array of services designed to meet an individual student’s needs. It includes direct and/or indirect consultant teacher services, resource room services, related services, integrated co-teaching services, and special classes. Students who must be removed from regular classroom instruction must be provided services within such continuum (8 NYCRR § 200.6). For additional information on the continuum of services, see NYS Education Department, Continuum of Special Education Services for School-Age Students with Disabilities (updated Nov. 2013), at: 

 

http://www.p12.nysed.gov/specialed/publications/policy/schoolagecontinuum-revNov13.htm

 

What is the meaning of the term “continuum of placement options”?

 

The term continuum of placement options, distinct from the continuum of services, refers to settings that include public schools, boards of cooperative educational services, private approved day and residential schools, and home and hospital instruction, as well as interim alternative educational setting options for students with disabilities who have been suspended or removed temporarily from their current placement for more than 10 school days because of disciplinary or other behavior related issues (NYS Education Department, Continuum of Special Education Services for School-Age Students with Disabilities (updated Nov. 2013), at:

 

http://www.p12.nysed.gov/specialed/publications/policy/schoolagecontinuum-revNov13.htm

 

 

 

 

 

 

 

 

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