School District Responsibilities

 

What are a school district’s basic responsibilities in providing for the education of children with disabilities?

 

The most basic responsibility school districts have regarding the education of children with disabilities is to provide all those eligible with a free appropriate public education in the least restrictive environment appropriate to meet their individual needs in conformity with their individualized education program Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 64 (1990)), and regardless of the severity of their disabilities or their ability to benefit from special education (Timothy W. v.

Rochester Sch. Dist., 875 F.2d 954 (1st Cir.), cert. denied, 493 U.S. 983 (1989)). This responsibility applies, as well, to disabled students incarcerated in county correctional facilities for 10 or more calendar days (Educ. Law § 3202(7); 8 NYCRR Part 118; see also NYS Education Department, Special Education Responsibilities for Students Incarcerated in County Correctional Facilities (Oct. 2010), at:

 

http://www.p12.nysed.gov/specialed/publications/qa/LEA-incarcerated.htm

 

Districts also must:

 

• Identify, locate and/or evaluate, and maintain information about all children with disabilities who reside or attend private school within their districts (20 USC § 1412(a)(3)(A), (10)(A)(ii); 34 CFR §§ 300.111, 300.131; Educ. Law §§ 3602-c(2-a), 4402(1)(a); 8 NYCRR § 200.2(a)(1))

 

• Establish an individualized education program (IEP) team known in New York as the committee on special education (CSE), CSE subcommittees as appropriate, and a committee on preschool special education (CPSE) to assure the timely identification, evaluation and placement of eligible school age students with disabilities and preschool children with disabilities (20 USC § 1414(b)(4)(A), (d)(1)(B); 34 CFR § 300.321; Educ. Law §§ 4402(1)(b), 4410(3); 8 NYCRR § 200.3(a), (c))

 

• Ensure that testing and evaluation materials and procedures for identifying and placing children with disabilities meet the requirements of federal and state law and regulations and are neither racially nor culturally discriminatory (20 USC §§ 1412(a)(7), 1414(a), (b), (c); 34 CFR §§ 300.304–305; 8 NYCRR § 200.4(b)(6))

 

 Arrange for special education programs and services based upon completion of a student’s IEP and the recommendation of the CSE or CPSE (8 NYCRR §§ 200.2(d), 200.16(f))

 

• Keep on file and make available for public inspection and review by the commissioner of education, an acceptable plan of service as required by Education Law § 3602(8)(b) (8 NYCRR § 200.2(c))

 

• Provide procedural safeguards for children with disabilities and their parents (20 USC § 1415; 34 CFR §§ 300.500–520; 8 NYCRR § 200.5) and notice of those procedural safeguards at various times specified in law and regulations (20 USC § 1415(d)(1)(A); 34 CFR §§ 300.504–05; 8 NYCRR § 200.5(f)(3))

 

• Appoint impartial hearing officers to hear appeals over the school district’s actions concerning the identification, evaluation, and placement of students with disabilities (20 USC § 1415(f)(1)(A), (3)(A); 34 CFR § 300.511; Educ. Law § 4404(1); 8 NYCRR §§ 200.2(b)(9), 200.2(e)(1), 200.5(j)(3)(i), (ii)) and report to the NYS Education Department information related to the impartial hearing process as required by the commissioner (8 NYCRR § 200.5(j)(3)(xvi); see also NYS Education Department, Impartial Hearing Reporting System (May 2014), at:  http://www.p12.nysed.gov/specialed/dueprocess/IHRS.htm

 

• Notify parents, upon their child’s enrollment or attendance in a public school, of their rights regarding referral and evaluation of their child for purposes of special education services and programs under federal and state law (§ 4402(8)). In addition, school districts must have in place certain written policies and/or administrative practices and procedures specified in law and regulations.

 

Are school boards required to adopt any specific policies regarding the education of children with disabilities?

 

Yes. School boards must adopt written policies that establish administrative practices and procedures:

 

• To ensure that, to the maximum extent appropriate to their needs, all children with disabilities have the opportunity to participate in school district programs available to all other public school students and preschool children to participate in preschool programs (20 USC §§ 1412(a)(2), 1413(a)(1); 34 CFR §§ 300.109, 300.201; 8 NYCRR § 200.2(b)(1), (2))

 

• For the continual allocation of appropriate amount of space to meet the special education program and service needs of all students with disabilities (8 NYCRR § 200.2(c)(2)(iv), (v); see also 8 NYCRR §§ 155.1(a), 155.2(b)(2), 155.12(b)(6), (d)(5)(i), 155.15(c), 200.2(g))

 

• For appointing and training appropriately qualified personnel, including members and chairpersons of the committee on special education and committee on preschool special education (20 USC §§ 1412(a)(14), 1413(a)(3); 34 CFR §§ 300.156, 300.207; 8 NYCRR § 200.2(b)(3))

 

• To ensure students with disabilities are served within a continuum of services established in commissioner’s regulations, and receive programs and services, to the extent appropriate to their individual needs, to enable them to be involved in and progress in the general education curriculum (34 CFR § 300.115; 8 NYCRR § 200.2(b)(4))

 

• For ensuring that parents receive and understand the request for consent for evaluation of a preschool student (8 NYCRR § 200.2(b)(5))

 

For ensuring the confidentiality of personally identifiable data, information or records pertaining to students with disabilities, including compliance with the Federal Family and Educational Rights and Privacy Act (20 USC § 1417(c); 34 CFR §§ 300.610–27; 8 NYCRR § 200.2(b)(6); see also Disability Rights New York v. North Colonie Bd. of Educ., 2016 U.S. Dist. LEXIS 36509 (N.D.N.Y. 2016))

 

• For implementing schoolwide approaches and pre-referral interventions to remediate a student’s performance prior to referral for special education, which may include a response to intervention process consistent with requirements established in commissioner’s regulations (20 USC § 1413(a)(2)(D), (4)(A), (f); 34 CFR §§ 300.208, 300.226; 8 NYCRR § 200.2(b)(7); see also NYS Education Department, Response to Intervention, Guidance for New York State School Districts (Oct. 2010), at: http://www.p12.nysed.gov/specialed/RTI/guidance/cover.htm

 

• For the appropriate declassification of students with disabilities as required by applicable law and regulations (20 USC § 1414(c)(5); 34 CFR § 300.305(e); 8 NYCRR § 200.2(b)(8))

 

• For the selection and school board appointment of impartial hearing officers in accordance with the procedures established in commissioner’s regulations (8 NYCRR § 200.2(b)(9))

 

• To establish a plan that ensures all instructional materials used in the district are available in a usable alternative format that meets the National Instructional Materials Accessibility Standard established in federal law, for each student with a disability in accordance with the student’s educational needs and course selections at the same time that such materials are available to nondisabled students (20 USC §§ 1412(a)(23)1474(e); 34 CFR § 300.172; 8 NYCRR § 200.2(b)(10); see NYS Education Department, Accessible Instructional Materials (AIM) (updated June 2016), at: http://www.p12.nysed.gov/specialed/aim

 

• For ensuring that personnel responsible for implementing or assisting in the implementation of a student’s individualized education program (IEP) receive a copy of the IEP or are able to access it electronically. If the policy provides for electronic access, then it must ensure that the persons responsible for the implementation of the IEP are notified and trained on how to access it electronically. The policy must also ensure that prior to the implementation of the IEP that personnel responsible for the implementation are informed of their responsibility relating to the implementation and the specific accommodations, modifications, and supports that must be provided to the student in accordance with the IEP (34 CFR § 300.323(d); Educ. Law § 4402(7); 8 NYCRR §§ 200.2(b)(11), 200.4(e)(3), 200.16(f)(6))

 

• To describe guidelines for the provision of appropriate accommodations necessary to measure the academic achievement and functional performance of students in the administration of districtwide assessments (8 NYCRR § 200.2(b)(13))

 

• To identify how the district, to the extent feasible, will use universal design principles in developing and administering any districtwide assessment programs (34 CFR § 300.44; 8 NYCRR § 200.2(b)(14))

 

• To ensure the school district publicly reports on revisions to its policies, procedures and/or practices upon a finding by the NYS Education Department that the district has inappropriate policies, procedures and practices resulting in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities (8 NYCRR § 200.2(b)(15))

 

When do a school district’s responsibilities towards students with disabilities end?

 

The general rule is that school districts must provide special education services to students with disabilities until they obtain a local high school or Regents diploma, or until the end of the school year in which the child turns 21, whichever occurs first (20 USC § 1412(a)(1)(A); 34 CFR §§ 300.101(a), 300.102(a)(3); Educ. Law § 4402(5); 8 NYCRR § 200.5(a)(5)(iii); Application of Herman & Fanny M., 18 Ed Dept Rep 127 (1978))

 

However, districts may be ordered to provide compensatory education to disabled students beyond the statutory age where there has been a gross violation of the Individuals with Disabilities Education Act that denied or excluded the student from educational services for a substantial period of time (Garro v. State of Conn., 23 F.3d 734 (2d Cir. 1994); Cosgrove v. Bd. of Educ., 175 F.Supp.2d 375 (N.D.N.Y. 2001); Application of a Child with a Disability, SRO dec. no. 02-097 (2003); see also Application of the Bd. of Educ. of the Gowanda CSD, SRO dec. no. 04-016 (2004)). Courts will not award compensatory education in cases where a prolonged deprivation of the opportunity for a free appropriate public education is the result of parental “obstructionist tactics” (French v. NYS Dep’t of Ed., 476 Fed. Appx. 468 (2d Cir. 2011)).

 

According to one federal appellate court outside New York State the provision of services by unlicensed, unqualified personnel warrants an award of compensatory education (Evanston Cmty. Consol. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798 (7th Cir. 2004))An award of compensatory education requires that the school district set aside and place in escrow the value of the prospective compensatory education, for use in paying up-front the associated expenses. Any money left in the escrow account at the end of the period of compensatory education is returned to the district (Streck v. Bd of Educ. of the East Greenbush CSD, 408 Fed. Appx. 411 (2d Cir. 2010)).

 

Compensatory educational services, distinct from compensatory education, may be awarded to students who remain eligible to attend school but have been denied appropriate services in cases where the deprivation of instruction could be remedied through the provision of compensatory educational services before the student becomes ineligible for instruction because of age or graduation (Bd. of Educ. of City Sch. Dist. of City of Buffalo v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005); Application of a Student with a Disability, SRO dec. no. 09-122 (2010); see also P. v. Newington Bd. of Educ. 546 F.3d 111 (2d Cir. 2008)).

 

What specific “child find” responsibilities does a school board have for identifying and maintaining data on children with disabilities?

 

Each school board must identify, locate, and evaluate all children with disabilities within its district (including homeless children and children who are wards of the state, highly mobile children including migrant children, children attending private schools including religious schools and home-instructed children), who are in need of special education, regardless of the severity of their disabilities and their advancement from grade to grade (20 USC § 1412(a)(3)(A), (10)(A)(ii); 34 CFR §§ 300.111(a), (c), 300.131; Educ. Law §§ 3602-c, 4402(1)(a); 8 NYCRR § 200.2(a)(1)). This includes identifying and locating nonresident students from another district or from out-of-state who have been parentally placed and are attending a private school in the district (20 USC § 1412(a)(10)(A); 34 CFR § 300.131; Educ. Law § 3602-c(2-a); 8 NYCRR § 200.2(a)(7)). The child find responsibilities of a child’s school district-of-residence do not end simply because the child is placed in an out-of-district private school by his or her parents and the district where the private school is located shares a similar obligation (J.S. v. Scarsdale UFSD, 826 F.Supp.2d 635 (S.D.N.Y. 2011)).

 

In addition, a register of all such children must be maintained and revised annually (Educ. Law § 4402(1)(a); 8 NYCRR § 200.2(a)(1), (7)), including parentally placed private school students (20 USC § 1412(a)(10)(A)(i)(V); 34 CFR § 300.132(c); 8 NYCRR § 200.2(a)(7)(ii)). Procedures must be implemented to ensure the availability of statistical data to determine the status of each child with a disability in the identification, location, and evaluation, placement, and program review process (8 NYCRR § 200.2(a)(1), (7)). Furthermore, anyone who collects this data must receive training and written information on the procedures for collecting the data (8 NYCRR § 200.2(a)(3)).

 

What “child find” activities must school districts conduct to locate children with disabilities attending private schools?

 

School districts must undertake “child find” activities with respect to private school children with disabilities, which are similar to those undertaken for children with disabilities in public schools (20 USC § 1412(a)(10)(A)(ii)(I), (III); 34 CFR § 300.131(c), (e); 8 NYCRR § 200.2(a)(7)). Such activities may include, for example, the wide distribution of informational brochures, regular public service announcements, and staffing exhibits at community activities (OSEP Questions and Answers, May 4, 2000, 34 IDELR 263). It is not necessary to conduct an individualized mailing to all private school students and their parents as part of their child-find efforts (Doe v. Metro. Nashville Pub. Schs., 9 Fed. Appx. 453 (6th Cir. 2001)).

 

The child find activities for locating private school students must be completed in a time period comparable to that for other students attending public school (20 USC § 1412(a)(10)(A)(ii)(V); 34 CFR § 300.134(e); 8 NYCRR § 200.2(a)(7)).

Districts must consult with appropriate representatives of private schools and of parents of parentally placed private school children with disabilities regarding the child find process (20 USC § 1412(a)(10)(A)(ii)(I); 34 CFR § 300.134(a); 8 NYCRR § 200.2(a)(7)).

 

School districts must include in their child find process parentally placed private school students who reside in another state but attend a private school within their district (34 CFR § 300.131(f)). For students attending private school outside their district of residence, prior consent from the student’s parents, or from the student if 18 years of age or older, is required before any personally identifiable information can be exchanged between school officials of the district where the student resides and the district where the private school the student attends is located (8 NYCRR § 200.2(a)(7)(i)).

 

What are a school district’s responsibilities toward students with disabilities who leave the public school system but return after a break in public school attendance?

 

Whether due to home instruction or private school placement, when the child returns to public school he or she remains a child with a disability eligible for special education and related services. Once identified, a student’s eligibility for services continues until the student is no longer age eligible, has graduated high school with a regular diploma, or is determined through an evaluation to no longer be a child with a disability (Letter to Goldman, OSEP Response to Inquiry, 53 IDELR 97 (Mar. 2009)).

 

When the student re-enrolls in public school, the school district must convene a meeting of the committee on special education, conduct any necessary revaluations, and develop an appropriate individualized education program for the student (Letter to Goldman).

 

What responsibilities do school districts have with regard to students with disabilities transitioning from high school to post-secondary activities such as college or employment?

 

School districts must provide such students with a coordinated set of “transition services” (20 USC § 1401(34)). Developing appropriate transition services is a “results-oriented process” that is “focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation” (20 USC § 1401(34)(A); 34 CFR § 300.43(a)(1); 8 NYCRR § 200.1(fff)).

 

Transition service activities must be based on the student’s individual needs, taking into account his or her strengths, preferences and interests (20 USC § 1401(34)(B); 34 CFR § 300.43(a)(2); 8 NYCRR § 200.1(fff)). Such activities must include, at least, instruction, related services, community experiences, the development of employment and post-school adult living objectives, and, where appropriate, helping the student develop daily living skills and functional vocational evaluations (20 USC § 1401(34)(C); 34 CFR § 300.43(a)(2); 8 NYCRR § 200.1(fff)).

 

For more information on transition service requirements, see NYS Education Department, Transition Planning and Services for Students with Disabilities (updated Nov. 2011), at:

 

http://www.p12.nysed.gov/specialed/publications/transitionplanning-2011.htm, and NYS Education Department, Transition Requirements and Guidelines (updated June 2014), at: http://www.p12.nysed.gov/specialed/transition/randg.htm.

 

Must school districts implement an individualized education program that was in effect in another district when a student transfers after the start of the school year?

 

School districts must provide transfer students with disabilities a free appropriate public education, including services comparable to those in the previous individualized education program (IEP). When a student transfers from another district within the state, that obligation extends until the new district, in consultation with the student’s parents, develops, adopts, and implements a new IEP. When a student transfers from another state, it extends until the new district conducts an evaluation, if determined necessary, and develops a new IEP, if appropriate. Any new IEP must be consistent with both federal and state law (20 USC § 1414(d)(2)(C)(i); 34 CFR § 300.323(e), (f); 8 NYCRR § 200.4(e)(8)(i), (ii)).

 

To facilitate a transferring student’s transition, the student’s new and previous school must take steps for the prompt transmittal of the student’s records, including the IEP and supporting documents, and any other records relating to the provision of special education and related services to the student in accordance with federal regulations implementing the Family Educational Rights and Privacy Act (20 USC § 1414(d)(2)(C)(ii); 34 CFR § 300.323(g); 8 NYCRR § 200.4(e)(8)(iii); 8 NYCRR § 100.2(x)(4)(iv)).

 

In addition, evaluations of students who transfer from one district to another in the same academic year must be coordinated between the child’s prior and subsequent schools, as necessary and expeditiously as possible to ensure prompt completion of full evaluations (20 USC § 1414(b)(3)(D); 34 CFR § 300.304 (c)(5); 8 NYCRR § 200.4(b)(6)(xvii)).

 

With respect to highly mobile students, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services has issued guidance regarding that group of students’ unique educational needs and school districts’ responsibilities under the Individuals with Disabilities Education Act at:

 

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/12-0392dclhighlymobile.pdf

 

Are school districts required to provide year-round services to disabled students?

 

Yes, to students whose disabilities require a structured learning environment of up to 12 months’ duration to prevent substantial regression. Substantial regression refers to the inability to maintain developmental levels due to a loss of skill or knowledge, during the months of July and August, severe enough to require an inordinate period of review at the beginning of the school year to reestablish and maintain the individualized education program’s (IEP) goals and objectives mastered at the end of the previous school year (34 CFR § 300.106; 8 NYCRR §§ 200.1(aaa), (eee), 200.6(k)(1), 200.16(i)(3)(v); Application of a Student with a Disability, SRO dec. no. 09-084 (2009); Appeal of a Child with a Handicapping Condition, 31 Ed Dept Rep 17 (1991)). This standard does not require that children with disabilities actually regress in their skills before they are eligible for summer programs and services; what is required is a “reasonable basis” for concluding that regression would occur without these services (Application of a Child with a Disability, SRO dec. no. 93-28 (1993)).

 

School districts may not unilaterally limit the type, amount, or duration of year-round services for students with disabilities, or limit such services to particular categories of disabilities (34 CFR § 300.106(a)(3)). Programs providing services during the months of July and August must operate at least 30 school days. However, programs providing only related services must be provided with the frequency and duration specified in the student’s IEP (8 NYCRR § 200.1(eee)).

 

Least restrictive environment (LRE) requirements (see 54:7) 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)).

 

For further information on year-round services, see NYS Education Department, Extended School Year Programs and Services: Questions and Answers (updated June 2011), at:

 

http://www.p12.nysed.gov/specialed/finance/2011QA.htm

 

Are school districts responsible for providing medical services to students with disabilities?

 

School districts are not required to provide medical services except for diagnostic and evaluative purposes (20 USC § 1401(26)(A); 34 CFR § 300.34(a); 8 NYCRR § 200.1(ee)). However, districts must provide necessary school health services and school nurse services to students with disabilities (20 USC § 1401(26)(A); 34 CFR § 300.34(c)(13); 8 NYCRR § 200.1(qq), (ss)).

Medical services for evaluative and diagnostic purposes refers to services provided by a licensed physician or by another licensed or registered health professional in consultation with or under the supervision of a licensed physician to determine whether a student has a medically related disability which may result in the student’s need for special education and related services (8 NYCRR § 200.1(ee)).

 

School health services and school nurse services refer to services provided by a qualified nurse or other qualified person to enable students with disabilities to receive a free appropriate public education as described in their individualized education program (34 CFR § 300.34(c)(13); 8 NYCRR § 200.1(ss).

 

The U.S. Supreme Court has ruled that school districts must provide health services to students with disabilities as long as the services do not have to be performed by a licensed physician and are necessary for the student to attend school and benefit from special education (Cedar Rapids Cmty. Sch. Dist. v. Garrett F., 526 U.S. 66 (1999); Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883 (1984)).

 

May school districts require that children with disabilities take medication in order to attend school?

 

No. Both federal and state law prohibit school districts from requiring that children obtain a prescription for a substance covered under specified provisions of the federal Controlled Substances Act (21 USC § 812(c)) as a condition of attending school, receiving an evaluation or reevaluation, or receiving special education programs or services. However, this prohibition does not prevent teachers and other school staff from consulting or sharing with parents classroom-based observations about a student’s academic and functional performances or classroom and school behavior, or the need for an evaluation (20 USC § 1412(a)(25); 34 CFR § 300.174(a); Educ. Law § 3208(4-a); 8 NYCRR § 200.4(b)(9), (e)(9); Letter to Inhofe, OSEP Response to Inquiry, 49 IDELR 286 (Oct. 2007)).

 

Must school districts ensure that students with disabilities have an opportunity to participate in nonacademic and extracurricular activities?

 

Yes. School districts must adopt and implement procedures for ensuring that students with disabilities are provided with an equal opportunity to participate in and benefit from extracurricular and nonacademic activities. This applies to students with disabilities eligible under the Individuals with Disabilities Act or section 504 of the Rehabilitation Act (34 CFR §§ 104.37, 300.107, 300.117; 8 NYCRR §§ 100.2(k); 200.2(b)(1)); Rose Tree Media (PA) Sch. Dist., OCR Decision, 40 IDELR 188 (2003)).

Providing an equal opportunity to participate does not mean that school districts are required to ensure that students with disabilities participate in all of the extracurricular activities which the parents or child chooses (Application of the Bd. of Educ. of the Port Washington UFSD, SRO dec. no. 06-033 (2006); Application of the Bd. of Educ. of the East Syracuse-Minoa CSD, SRO dec. no. 92-11 (1992)).

 

The Office of Civil Rights (OCR) has issued guidance regarding school districts’ responsibilities and the process that should be followed with respect to extracurricular athletics (U.S. Department of Education, Office of Civil Rights, Dear Colleague Letter (Jan. 25, 2013), at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf; see also U.S. Department of Education, Office of Civil Rights, Letter from DiPaolo (Dec. 16, 2013), at:

 

https://www.nsba.org/sites/default/files/reports/OCR%20Dec.%2016%20%20Letter%20-%20RE%20-%20NSBA%20May%202013%20Letter.pdf

 

Where necessary, a student’s individualized education program (IEP) (see 54:6) must include a statement of supplementary aids and services to be provided to enable a child to participate in such activities (34 CFR § 300.320(a)(4)(ii)). However, a student’s IEP does not have to include participation in non-academic and extracurricular activities unless the student’s needs are such that a free appropriate public education (see 54:3) cannot be provided without such participation (Application of a Child with a Disability, SRO dec. no. 04-041 (2004)).

 

Nonacademic and extracurricular activities include, for example, counseling services, athletics, transportation, health services, school-sponsored special interest groups or clubs, and employment of students (34 CFR § 300.107(b)).

Actual knowledge by the disabled students’ parents of district extracurricular programs and activities does not relieve the district of its obligation to notify students with disabilities and their parents of these activities (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 293 (1991)).

 

In addition, districts may make an individual determination concerning the physical capacity of a student with a disability to participate in an extracurricular athletic activity. If refused participation, the student then may commence a special court proceeding to appeal the district’s decision preventing the student from participating (§ 3208-a(1)). If the court mandates participation, the law absolves the district from liability for injuries sustained during participation in the activity if the injury is attributable to the physical impairment involved in the court order (§ 3208-a(4)).

 

Are school districts required to address bullying against disabled students that is based on their disability?

 

Yes. Furthermore, a school district’s failure to address reasonable parental concerns about severe bullying endured by their disabled child may result in the denial of a free appropriate public education (see 54:3) and entitle the parents to tuition reimbursement if they choose to place their child in a private school. That was the case where a district refused to discuss the bullying of a student during the development of the student’s individualized education program (IEP) (see 54:6) despite repeated parental requests. The record showed that although the student performed at or near grade level, the bullying was, nonetheless, affecting her academic and non-academic development. According to the court, the district’s dismissal of the parents request impeded their right to participate in the development of the IEP, potentially affected the substance of the IEP, and prevented the parents from “meaningfully” evaluating the sufficiency of the student’s IEP, in violation of the Individuals with Disability Education Act (T.K. & S.K. v. N.Y. City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016)).

 

In addition, a school’s district failure to address disability-based bullying may result in a disability-based harassment violation under Section 504 and Title II of the Americans with Disabilities Act (see U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter: Responding to Bullying of Students with Disabilities (Oct. 2014), at:

 

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf).

 

What procedural safeguards must a school district provide to students with disabilities and their parents?

 

The federal Individuals with Disabilities Education Act and state law and regulations require that a school district afford a student with disabilities and the student’s parents, procedural safeguards that include, for example, the right to:

 

• Prior written notice a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the student, or the provision of a free appropriate public education

 

• Consent to evaluations and reevaluations, the initial provision of services, the release of the student’s personally identifiable information, and district access to the parent’s private or public insurance proceeds for the first time

 

• Access and examine the student’s educational records, and to protection regarding the confidentiality of such records and 

other personally identifiable information related to the student

 

• Obtain an independent educational evaluation

 

• An opportunity to present a complaint to the NYS Education Department, participate in mediation, and initiate due process hearings, appeal to the State Review Officer, and initiate civil actions in state or federal courts related to the identification, evaluation or placement of the student, or the provision of a free appropriate public education

 

• Have the student “stay-put” in his or her current educational placement during the pendency of due process proceedings

 

• Attorneys’ fees (20 USC § 1415; 34 CFR §§ 300.500–520; 8 NYCRR § 200.5(b), (f); NYS Education Department, New York State Procedural Safeguards Notice: Rights for Parents of Children with Disabilities, Ages 3-21 (updated July 2013), at:

 

http://www.p12.nysed.gov/specialed/formsnotices/psgn/psgn713.htm).

 

Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 also require that districts receiving federal education funds establish a system of procedural safeguards concerning the identification, evaluation, and/or educational placement of children believed to need special instruction or related services, and give parents notice of their rights under Section 504 (34 CFR § 104.36; Plainfield (CT) Pub. Sch., OCR Decision, 40 IDELR 18 (2003)).

 

Must a school district provide written notice of the procedural safeguards?

 

Yes. A school district must give parents written notice of the procedural safeguards at least once a year and also upon:

• A child’s initial referral or parental request for evaluation.

• Receipt of the first filing of a state complaint or a due process complaint in a school year.

• Parental request (20 USC § 1415(d)(1); 34 CFR § 300.504(a); 8 NYCRR § 200.5(f)(3)).

• The date a decision is made to suspend or remove a child with a disability for a violation of a student code of conduct and the suspension or removal constitutes a disciplinary change in placement (34 CFR §§ 300.504(a)(3), 300.530(h); 8 NYCRR § 200.5(f)(3)).

 

A school district must use the procedural safeguards notice prescribed by the commissioner of education (8 NYCRR § 200.5(f)(1)) and provide it in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so (20 USC § 1415(d)(2); § 300.504(d); 8 NYCRR § 200.5(f)(2)). If the parent has no written language, notice must be given orally or by other means or mode of communication, and the district must ensure the parent understands the content of the notice and maintain written evidence that these requirements have been met (34 CFR § 300.503(c)(2); 8 NYCRR § 200.5(f)(2)). A copy of the State mandated procedural safeguards notice is available at:

 

http://www.p12.nysed.gov/specialed/publications/PSGN-fm-713.pdf (updated July 2013).

 

A district may place a current copy of the procedural safeguards notice on its website if it has one (20 USC § 1415(d)(1)(B); 34 CFR § 300.504(b); 8 NYCRR § 200.5(f)(4)). Parents may elect to receive the procedural safeguards notice by an electronic mail (e-mail) communication if their school district makes that option available (20 USC § 1415(n); 34 CFR § 300.505; 8 NYCRR § 200.5(f)(5)).

 

The procedural safeguards notice prescribed by the commissioner applies only to children with disabilities eligible to  eceivespecial education and related services under the federal Individuals with Disabilities Education Act. School districts must give parents separate notice of their rights under Section 504 of the Rehabilitation Act of 1973 (34 CFR § 104.36; Plainfield (CT) Pub. Sch., OCR Decision, 40 IDELR 18 (2003)).

 

 

Contact Us

Managing Attorney

Angel A. Castro, III, Esq.

60 Broad street

24th Floor
New York, NY

10004 

 

 

Phone: (646) 234-3177
Fax: (212) 731-0217

 

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Serving the New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Westchester, and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.

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This website contains general info. about AA Castro C.L.A.N, PLLC and is not intended to serve as a source of legal advice.

 

Neither receipt of information presented on this site nor any email or other electronic communication sent to Castro CLAN PLLC or its lawyers through this site will create an attorney-client relationship, and no such email or communication will be treated as confidential. No user of this site should act or refrain from acting on the basis of information on this site without seeking legal advice from counsel in the relevant jurisdiction. Castro CLAN PLLC expressly disclaims liability with respect to actions taken or not taken based on the contents of this site.

 

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