Students with Disabilites

 

Students with disabilities are protected by a set of laws, statutes, and regulations that guard them from discrimination, including the assurance that they receive a free appropriate education, tailored to their specific needs, at no cost to them, or their parents.

 

The laws that govern the education of children with disabilities include:

 

  • The federal Individuals with Disabilities Education Act (IDEA), which affords all eligible children with disabilities the right to a free appropriate 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 against an individual on the basis of a disability (20 USC §§ 701, 705, 794; 34 CFR Part 104).

 

  • Title II if the Americans with Disabilities Act 1994, which prohibits discriminations 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 both serve as the primary vehicle for implementing IDEA in the state of New York.

 

Laws, regulations and statutes are constantly being updated to ensure the upmost protection for students with disabilities, and therefore legal modifications, and updates periodically take place. Because of this, there are occasional gaps between changes in federal statues and regulations, and the incorporation of those changes into state law and regulations. During these legal gaps, school districts are bound by the federal requirements, except in instances where New York State law provides greater rights to 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

 

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

 

These 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

(It should be noted that emotional disturbance does not apply to students who are simply socially maladjusted (34 CFR § 300.8(c)(4); 8 NYCRR § 200.1(zz)(4); PC & MC v. Oceanside UFSD, 818 F.Supp.2d 516 (E.D.N.Y. 2011).

 

Children who do not fall under one of the above classifications, may still be entitled to special education and related services pursuant to section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), both of which include a broader definition as to who may be deemed as an individual wth 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 of the Rehabilitation Act, an individual with a disability is described as a person who has a physical or mental impairment which substantially limits one or more of his or her major life activities. This individual must also have a record of this impairment, or be regarded as having such an impairment (29 USC § 705(20)(B); 42 USC § 12102). The ADA also includes 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 pubic entity” (42 USC § 12131(3)(2)).

 

Federal regulations which work to implement Section 504 impose a responsibility on school districts to provide a free appropriate education in the least restrictive environment to students with disabilities. The only means of satisfying this obligation is for school districts to implement an individualized education program developed in accordance with the IDEA (34 CFR §§ 104.33(b)(1), (2), 104.34(a),(b)).

 

As mentioned, public school districts must provide a free appropriate education to eligible students with disabilities. A free appropriate public education (FAPE) consists of the special education and related services provided to child with a disability at no cost to his or her parents. These education and related services are also provided under public supervision and direction, which conforms to the student’s individualized education program, tailored to meet the unique needs that he or she displays (20 USC § 1401(9); 34 CFR § 300.17). By law, 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 the special education provided (Timothy W. v. Rochester, N.H. Sch. Dist., 875 F.2d 954 (1st Cir.).

 

However it is important to note that school districts are not obligated to provide optional programs that match or surpass programs offered by other private schools (Matter of a Handicapped Child, 26 Ed Dept Rep 70 (1986)). Additionally, the fact that a student is not performing at the same level as his or her non-disabled classmates does not translate to a denial of FAPE. A student’s academic progress may be viewed in contrast with the limitations of his or her disability (H.C v. Katonah-Lewisboro UFSD, 528 Fed. Appx. 64 (2d Cir. 2013)).

 

Special education can be best be defined as specifically designed individualized or group instruction, special services, or programs provided to students at no cost to the parent to meet the unique needs of an eligible student with a disability. This may include instruction conducted in a classroom, in the home, in a hospital, or any other settings, which may include special classes, resource rooms, consultant teacher services, related services, as well as 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 that is appropriately adapted to meet the needs of an eligible student with a disability (20 USC § 140(29); 34 CFR § 300.39(b)(3)l 8 NYCRR § 200.1(vv)).

 

Related services refer to the supplemental or supportive services in addition to the special education services provided to children with disabilities. These services include transportation, developmental, corrective, and other supportive services that may be required to assist a child with a disability. These services include the early identification and assessment of disabling conditions in students, as well as the provision of:

 

  • Speech-language pathology and audio 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 and school nurse services
  • Assistive technology services
  • Other appropriate developmental or corrective support services
  • Appropriate access to recreation (which includes therapeutic recreation) as well as other appropriate support services (20 USC § 1401(26); 34 CFR § 300.34; Educ. Law. § 4401(2)(k); 8 NYCRR § 200.1(gg),(ss)).

 

However it is important to note that related services do not include the maintenance, implanting, programming or replacement of medical devices, nor their external components (id.; 34 CFR § 300.113(b)(2); 8 NYCRR § 200.1(gg)(1)). This also excludes the optimization of the device’s functioning (34 CFR § 300.34(b)(1); 8 NYCRR § 200.1(gg)(1)). However, school districts are required to routinely check an external component of surgically-implanted devices on children with disabilities to ensure that it is functioning properly (34 CFR §§ 300.34(b), 300.113(b); 8 NYCRR § 200.1(gg)(1)(iii)).

 

Individualized education programs (IEPs) are written statements that outline the plan for providing the personalized educational program to a disabled student, based on his or her unique needs. An IEP must include, for example:

 

  • The classification of the students disability.
  • The student’s present levels of academic achievement, as well as his or her functional performance, along with the individual needs of the student in areas of academic achievement, functional performance, learning characteristics, social and physical development, and management needs.
  • Measurable annual goals in alignment with the student’s needs and abilities. This enables the student to be involved in, as well as progress in the general education curriculum and meet the student’s other educational needs related to his or her disability.
  • How the students progress toward meeting the annual goals will be measures, as well as when the student’s parents will be informed of such 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 programs and services that, to whatever 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 students participating in an alternate assessment, the reasons why they cannot participate in the regular assessment, and why the alternate assessment being used is appropriate.
  • The extent in which the student will or will not participate in the regular education program, or appropriate activities with age-appropriate non disabled peers.
  • Transition services used 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 or program.
  • The student’s recommended placement (20 USC §§ 1401(14), 1414(d)(1)(A); 34 CFR §§ 300.22, 300.320-324; 8 NYCRRR §§ 200(v), 200.4(d)(2)), which refers to the type of program that a student will attend, rather than the 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 alignment with the directive of the commissioner of education (8 NYCRR § 200.4(d)(2); NYS Education Department Questions and Answers on Individualized Education Program (IEP) Development, the State’s Model IEP Form and Related Documents (updated April 2011);

 

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

 

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

 

School districts must also ensure that each student with a disability has an IEP in place at the beginning of each school year (34 CFR § 300.323(g); 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 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 have a duty to ensure that personnel responsible for implementing or assisting in the implementation of an IEP understand their responsibilities as well as receive a copy of the student’s 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)).

 

The term least restrictive environment (LRE) refers to the setting in which students with disabilities are educated. School districts have an obligation to ensure that, to the maximum extent appropriate, that students with disabilities are not placed in special classes, separate schools, or otherwise removed from the regular education environment unless the “nature and severity of the student’s disability is to an extent 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(cc). Supplemental aids and services refers to aids, and other support services that are provided in regular education classes or other education-related settings; along with extracurricular and nonacademic settings to enable children with disabilities to be educated alongside their non-disabled peers (to the maximum extent appropriate in accordance with LRE requirements) (20 USC § 1401(33); 34 CFR §§ 300.42, 300.117; 8 NYCRR § 200.1(bbb). LRE requirements apply in the same way to extend school year placements as they apply to placements during the school year (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 the curriculum in the general education classroom requires modification (see Application of a Child with a Disability, SRO dec. no. 93035 (1993)). Additionally, school districts are not permitted to remove a disabled child from the regular education environment on the basis that the child may see greater benefit in a segregated special education class (Oberti v. Bd. of Educ. Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir. 1993)).

 

Students who must be removed from their regular classroom 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 in regards to 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 to the student’s home as possible.

 

Additionally, Least Restrictive Environment Requirements must co-exist and operate in harmony with the requirement that forces schools to provide a free 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 § 300.166(d); P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008)).

 

Placement of a student with a disability in an integrated classroom where as many as 12 other students with disabilities alongside general education students does not violate the least restrictive environment requirement. Furthermore, a student with a disability is not entitled to be taught in a regular classroom where he or she is the only student with an individualized education plan (M.W v. N.Y. City Dep’t of Educ., 725 F.3d 131 (2d Cir. 2013)).

 

When referring to the term “continuum of services” it is important to note that this term refers to to an array of services designed to meet an individual student’s needs. It includes both direct and/or indirect consultant teacher services, resource room services, integrated co-teaching services, as well as special classes. Students who must be removed from general classroom instruction must be provided services within such a continuum (8 NYCRR § 200.6). To read additional information on the continuum of services, refer to the NYS 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

 

The term continuum of placement options, not to be confused with 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 alternate educational setting options for students with disabilities for students who have been suspended or removed from temporarily frothier current placement for more than 10 school days due to disciplinary or other behavior related used (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

 

The umbrella of protective laws that govern the education of students with disabilities affords them the opportunity to be educated and develop alongside their counterparts in a minimally restrictive way. Thanks to federal laws and regulations that hold public schools to a certain standard, forcing them to cater to students with disabilities based on their individual needs, students with disabilities will not fall through the cracks in terms of their education and development. Parents of students with disabilities can rest, knowing that an appropriate education will be provided to their child, at no cost to them, along with related services to ensure that their child has no difficulty receiving the education that he or she needs. 

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Angel A. Castro, III, Esq.

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