Meeting the Needs of Students with Disabilities in Non ... · provision of FAPE would result in a...

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Meeting the Needs of Students with Disabilities in

Non-traditional, Alternative and Specialized Programs

Wes Parsons, Esq., Fagen Friedman Fulfrost, LLPBrandie Rosen, Program Specialist Las Virgenes Unified School District

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COMPULSORY EDUCATION

Each person between the ages of 6 and 18 years not exempted under the provisions of Chapter 3 (commencing with Section 48400) is subject to compulsory full-time education. (Educ. Code §48200.)

Unless otherwise provided for in this code, a pupil shall not be enrolled for less than the minimum school day established by law. (Educ. Code §48200.)

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Compulsory Education

• Can be met through:

Public School

Private School

Independent Study

Home Schooling

Charter School

Non-public School

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Education is Changing School districts are receiving less money:

Larger class size

Fewer resources

Families unable to supplement with additional services or private school

Parents have more options:

Charter schools

Magnet Schools

Independent Study

Alternative Schools of Choice

Private schools

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Education is Changing

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Special Education is Changing

Historically special education students were educated in separate schools or classrooms

Segregated schools and classrooms evolved into: SDC/Resource Model

Full Inclusion Model

SAI Model

Specialized Special Education Programs

Shifts within educational programming: Educating students in multiple environments

Better understanding of how to teach special education students

Research-based interventions

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Special Education Population is Changing

• Educating students that were not previously identified or served:

More comprehensive child find

More sophisticated assessment

• Shifts within eligibility categories:

Increase in autism eligibility

Decrease in ID eligibility

“Cross over” students (Aut/ED, Aut/OHI)

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Eligibility

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“Child With a Disability” Intellectual Disability Hearing impairment Speech or language impairment Visual impairment Serious emotional disturbance Orthopedic impairment Autism Traumatic brain injury Other health impairment Specific learning disability Deaf-blindness Multiple disabilities

34 C.F.R. § 300.8.

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“Child With a Disability”

“who, by reason thereof, needs special education and related services”

“If it is determined that a child has one of the disabilities … but only needs a related service and not special education, the child is not a child with a disability”

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Special Education Defined

Specially designed instruction

At no cost to parents

To meet the unique needs of a child with a disability

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Specially Designed Instruction

Adapting, as appropriate

Content of instruction

Methodology of instruction

Delivery of instruction

To address child’s unique needs

To ensure access to general curriculum

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In Sum:

First, determine if student is “child with a disability”

Second, determine if student requires special education

Third, develop an appropriate placement offer

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Section 504

IDEA

Background: Sources of Law

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Connect-the-Dots

Present levels

Areas of Educational Need

Goals

Placement

Related services

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Rowley

Test of Substantive Compliance:1. Designed to meet unique needs;

2. Reasonably calculated to provide educational benefit (not maximize, but more than trivial);

3. Services comport with IEP

4. Least restrictive environment

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Target Range(Now IDEA 2004)

Test of Procedural Compliance:1. Impeded right to FAPE;

2. Significantly impeded parents’ right to meaningfully participate in the decision-making process;

3. Caused educational deprivation.

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The Legal Elements of the LRE

To the maximum extent appropriate, children with disabilities are educated with children who are not disabled.

Removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(IDEA, 20 U.S.C §1412(a)(5).)

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The Rachel H. Balancing Test

Four factors:

1. Academic benefit

2. Non-academic benefit

3. Effect on teacher/students

4. Cost

Sacramento City USD v. Rachel H. (9th Cir.1994)

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Continuum of Placement Options

Home Teaching

Home Teaching

Magnet schools

Magnet schools

Alternative schools of

choice

Alternative schools of

choice

Independent study

Independent study

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Placement Options

Needs Driven (parent or district initiated):

IDEA procedural and substantive requirements must be met

Choice Driven (parent initiated):

IDEA procedural and substantive requirements must be met

Section 504 non-discrimination

What rights do disabled students have to access these programs?

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Overview of Section 504

Section 504 of the Rehabilitation Act of 1973 states: “No otherwise qualified individual with a disability…, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….”

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Section 504 is Congress’ directive to schools receiving any federal funding to eliminate disability-based discrimination from all aspects of school operations.

Because a public school district is a recipient of federal funds, it is required to provide eligible disabled students with equal access (both physical and academic) to services, programs,

and activities.

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Non-Discrimination Duty Protect students from discrimination. Section 504 assures

access to educational services and the learning process that is equal to that given to students who do not have disabilities.

All students who have a physical or mental impairment which limits substantially one or more major life activities, have a record of such an impairment, or are regarded as having such an impairment, are protected from discrimination under Section 504.

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Non-Discrimination Duty

Thus, school districts are prohibited from:

Excluding a student with a disability from participation in any district program or activity;

Denying a student with a disability the benefits of any district program or activity; and

Subjecting a student with a disability to discrimination solely by reason of her disability.

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Non-Discrimination Duty Section 504/Title II do not require a school district to admit a

student into a program or activity if the student, with special services or accommodations, does not meet the essential requirements of the program.

However, a school district cannot categorically assume that special education students and/or 504 students are not qualified to attend the program.

A school district must provide disabled students an equal opportunity to participate in the program unless the student is not qualified to attend the program, an IEP or Section 504 team determines that the program is not appropriate for the student, or the school district can show that offering the services needed by the student would fundamentally alter the nature of the program or otherwise constitute undue burden.

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Non-Discrimination Duty Thus a three-step process should occur for all students

with disabilities who desire to participate in a district program:1. The student needs to apply and meet the same prerequisites

for attendance in the program as do all other students with or without disabilities (e.g. is the student qualified to participate in the program);

2. The student’s IEP team or 504 team needs to convene and determine whether FAPE can be provided in the desired program (e.g. is the program appropriate); and

3. The District (IEP or 504 team) must determine whether the provision of FAPE would result in a fundamental alteration of the program or otherwise constitute an undue burden.

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Program Options

Home Hospital Instruction Home teaching

Independent Study IS Home-Based Format

Magnet Programs

Alternative Schools of Choice

Gifted Programs and AP Courses

Specialized Special Education Programs

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HOME HOSPITAL INSTRUCTION

A pupil with a temporary disability which makes attendance in the regular day classes or alternative education program in which the pupil is enrolled impossible or inadvisable shall receive individual instruction provided by the district in which the pupil is deemed to reside. (Educ. Code § 48206.3.)

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HOME HOSPITAL INSTRUCTION “Individual instruction” means instruction provided to an individual

pupil in the pupil's home, in a hospital or other residential health facility, excluding state hospitals, or under other circumstances prescribed by regulations adopted for that purpose by the State Board of Education. (Educ. Code § 48206.3.)

“Temporary disability: means:

A physical, mental, or emotional disability

Incurred while a pupil is enrolled in regular day classes or an alternative education program, and

After which the pupil can reasonably be expected to return to regular day classes or the alternative education program without special intervention.

A temporary disability shall not include a disability for which a pupil is identified as an individual with exceptional needs pursuant to Section 56026. (Educ. Code § 48206.3.)

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SPECIAL EDUCATION AND HOME HOSPITAL INSTRUCTION

Special education and related services provided in the home or hospital for school age pupils is limited to those pupils who have been identified as individuals with exceptional needs … and for whom the IEP team recommends such instructions or services. …(C.C.R. § 3051.4)

For those individuals with exceptional needs with a medical condition such as those related to surgery, accidents, short-term illness or medical treatment for a chronic illness, the IEP team shall review, and revise, if appropriate, the individualized education program whenever there is a significantchange in the pupil's current medical condition. (C.C.R. § 3051.4)

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The IEP team shall have in the assessment information a medical reportfrom the attending physician and surgeon or the report of the psychologist, as appropriate, stating: The diagnosed condition

Certifying that the severity of the condition prevents the pupil from attending a less restrictive placement …

[And the] projected calendar date for the pupil's return to school. (C.C.R. § 3051.4)

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Instruction in the home or hospital shall be provided by a regular class teacher, the special class teacher or the resource specialist teacher, if the teacher or specialist is competent to provide such instruction and services and if the provision of such instruction and services by the teacher or specialist is feasible. If not, the appropriate designated instruction and services specialist shall provide such instruction. (C.C.R. § 3051.4)

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Special Education and Home Hospital Instruction

HHI is part of the continuum of placement options available to special education students.

Section 504 “access” issues are usually not implicated.

Placement in the home is one of the most restrictive placements on the continuum of program options available to students with disabilities. (Educ. Code §56361.)

Number of hours is based on student need rather than five hour “rule”. (Redlands USD (OAH 2008))

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Special Education and Home Hospital Instruction

8 year old boy is eligible for special education because of multiple orthopedic disabilities and mental retardation.

The District recommends SDC.

Parent concerned about Student’s exposure to other children’s illnesses.

Parent submits a medical referral recommending home instruction through the 2008-2009 school year but not 2009-2010.

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Special Education and Home Hospital InstructionOAH concluded:

That in order to receive home instruction, a student must have a valid medical referral or report from his physician that:

States the diagnosed condition;

Certifies the severity of the condition prevents the student from attending a less restrictive placement; and

Includes the projected date of the student return to school.

The task of providing current medical referrals was the responsibility of the Parent.

The District was not obligated to provide home instruction due to Parent’s failure to provide a current medical referral for 2009-2010.

(Los Angeles USD (OAH 2010))

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Placement Considerations What is driving the placement in HHI?

Does the student present with a temporary disability unrelated to special education disabling condition?

Does special education disabling condition require HHI?

Other related special education factors such as behavior or emotionality?

Student versus school-site need?

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Placement Considerations Temporary disability unrelated to eligibility:

IEP team to review and revise IEP as appropriate to ensure FAPE is provided in the HHI setting.

Avoid “5-hour rule” – offer what is necessary and appropriate.

Review and connect your dots!

Consider whether goals need to be changed or revised to address temporary situation.

Consider whether services need to change to address current needs.

e.g.: frustration tolerance goal because student cannot move andsocial skills goal that cannot be addressed; goals and services “tabled” for limited HHI time-period.

Consider appropriate service providers.

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Placement Considerations Special education eligibility driving HHI placement:

Approach with caution as this is one of the most restrictive placements for the student and in most cases should not be a long term placement.

If medical in nature, maintain ongoing consultation with treating physician to ensure continued need for HHI.

Student’s needs should be evaluated and addressed in light of required HHI placement and an IEP team meeting must be convened.

Some “needs” may be difficult to address such as social/peer interaction or gross motor.

Connect your dots!

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Placement Considerations

Other related special education factors

Behavioral and/or emotional challenges?

Identify the factors that are interfering with the student attending school.

This may require assessment and/or information gathering.

Convene an IEP team meeting to ensure FAPE is provided, connect your dots and document the plan for transitioning the student to a less restrictive setting.

Is HHI placement based on student or staff needs?

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Home “Teaching” vs. Home Hospital Instruction Home “teaching” not defined in the Education Code Often used as additional instructional hours to

supplement a student’s school-based program Team should consider if “necessary for FAPE” IEP team should determine how, where, when and by

whom services will be provided General education v. special education should be

considered May be used to supplement independent study

coursework IEP language should be carefully drafted to address time,

frequency, duration and location. Be cognizant of “stay put” obligations

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Home “Teaching” vs. Home Hospital Instruction Intensive Instruction or “tutoring” often used as

compensatory services where FAPE has been disputed May be part of a settlement agreement to resolve FAPE

disputes Use has increased because non-public agencies are no

longer certified to provide “instruction” Language carefully drafted to address how, where, when

and by whom services will be provided to avoid later disputes.

Language carefully drafted to avoid “stay put” disputes Consider pre- and post- testing to document progress or

lack thereof

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Programmatic Considerations Consider a blended program with some level of school attendance.

Consider what DIS services remain appropriate and where and how they will be delivered.

Can be used to support students with inconsistent attendance. (Disability related)

Consider transition plan for returning student to a school basedprogram.

How do you connect your dots?

“Temporary” placement pending resolution of placement dispute? (e.g. parent refusing to send student to school):

May be appropriate in some situations;

Document in the IEP, the current/on-going offer of FAPE, explain why student is not attending school; document interim HHI services to ensure student is receiving some educational services; take all appropriate steps to resolve placement dispute.

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Independent Study and IS-Home Based Format Independent study

Governed by Ed. Code

Independent study – home based format (district home-schooling) Generally operated under IS legal requirements;

Home-based independent study typically designed to assist parents who chose to educate their children at home or who travel for business or vacation and need to facilitate their children’s continuing education. (See Independent Study Operations Manual, Cal. Dept. of Educ. (200 Edition).)

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Independent Study

Education Code section 51745 states that school districts may offer independent study to meet the educational needs of their students.

Generally offered as a flexible way to address a student’s individual needs, interests, and styles of learning. Section 51745 specifies that “[e]ducational opportunities offered through independent study may include, but shall not be limited to, the following: (1) Special assignments extending the content of regular courses

of instruction. (2) Individualized study in a particular area of interest or in a

subject not currently available in the regular school curriculum. (3) Individualized alternative education designed to teach the

knowledge and skills of the core curriculum. Independent study shall not be provided as an alternative curriculum.

(4) Continuing and special study during travel. (5) Volunteer community service activities that support and

strengthen pupil achievement.”

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Independent StudyKey legal requirements to receive ADA: Local Board Policy

Must be voluntary

Students must be enrolled in one of the school district’s schools and must be residents of the county in which the school district is located or an adjacent county

Equal Educational Opportunity

Standards Aligned

Teacher Quality

Schools Enable Students to Successfully Complete Their Independent Study

A Written (Master) Agreement for Each Independent Study Student

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Independent StudyKey legal requirements to receive ADA: A Written (Master) Agreement for Each Independent

Study Student An issue may arise for special education students having to sign an

independent study agreement.

Under the IDEA and the Education Code, if a student’s IEP team determines that the student’s appropriate placement is independent study, the student must be placed in the program.

This could create a problem if the student’s parent refuses to enter into the agreement.

OAH has held that the IDEA prevails over state laws under the Supremacy Clause of the Constitution and, therefore, a special education student should not be denied the right to enroll in independent study based on his or her parent’s refusal to enter into an independent study agreement. (Camptonville Union Elementary Sch. Dist. (March 18, 2009) OAH Case. No. 2008090659.)

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Independent Study

Key legal requirements to receive ADA: A school district must also comply with the IDEA, Section 504 and

Title II of the Americans with Disabilities Act of 1990.

If placement in independent study is “special education related” and based on student needs, the IEP team can consider IS as a part of the continuum of placement options

If placement in independent study is student initiated as part of parent “choice” and/or “preference” the three-step 504 process is implicated.

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Special Education/ Needs Driven: IEP team may consider IS placement as part of the continuum of

placement options: Where does this fall on the LRE continuum?

Can the student work independently or will additional support (e.g. home teaching) be necessary?

Assessment should be considered to address IS related needs.

Consider need for full-time IS placement?

Develop plan to return student to school-based placement as appropriate.

Connect your dots.

Without parental support and consent, IS may be difficult to defend in a due process hearing.

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Placement Considerations Choice driven (Parent initiated)

IEP team meeting must be convened to address requested placement change;

Ensure current offer of FAPE in LRE is documented pursuant to the IEP process;

Three-step 504 process addressed: 1. The student meets the same prerequisites for attendance

in the program as do all other students with or without disabilities

2. The student’s IEP team or 504 team determines whether FAPE can be provided in the desired program; and


• Cannot require the student to exit special education to participate in IS.

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Placement Considerations Choice driven (parent initiated) – FAPE

Available within IS: Connect your dots; document current offer of FAPE

in the IEP, note that parent is declining such placement and electing to place student in preferred “choice” program;

Review your dots and document offer of FAPE within IS program:

1. Goals should remain the same;2. IEP team may determine that different services and

supports are required to meet student needs in IS setting;3. Clearly document placement and services for IS placement

in the IEP;4. What role does LRE have in the FAPE “equation”?5. Choice program, thus transportation is at parent expense;6. Consider follow-up IEP to review progress and program

appropriateness.

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Parental choice – FAPE NOT Available within IS:

Document current offer of FAPE in the IEP;

Document consideration of IS program;

Document prior written notice requirements in denying IS placement: FAPE not available in IS setting (e.g. peer

interaction; lack of “independence”)

Services in IS setting would fundamentally alter the nature of the IS program or otherwise cause an undue burden.

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Programmatic ConsiderationsIndependent Study Consider “dual” enrollment with some level of school

attendance:

Student with Autism attends school for electives and twice weekly social skills group to work on social pragmatic goals.

Consider what DIS services remain appropriate and where and how they will be delivered.

May allow students to complete course work at their own pace.

Can be used to support students with disability-related inconsistent attendance.

Credit Recovery.

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Programmatic ConsiderationsIndependent Study-Home Based Format Independent study-home based format:

Generally involves greater parent involvement

Generally SHOULD NOT be considered as part of the continuum of placement options absent parent “choice”

“Choice” program and should be considered pursuant to three-part 504 process

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Home-based Independent StudyParent v. Horizon Charter School (OAH 2011)

16 year-old Student attended Horizon Charter School’s homeschoolindependent study program;

Parent alleged Horizon failed to develop, offer and provide appropriate transition goals and services to address Student’s transition needs in the areas of independent living, vocational training and community experiences;

Horizon argued that transition services were appropriate in all respects and that, because Student’s mother was his principal teacher, she was partly responsible for ensuring that his transition plan was fully implemented;

The evidence showed that Student’s mother was the primary teacher of general education curriculum but did not have responsibilities for special education, including transition services;

Parent prevailed and OAH ordered compensatory assessment and transition services.

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Magnet Schools & Alternative Schools of Choice

Magnet School: A school or program designed by an LEA to attract students.

Students can enroll via open enrollment.

Can be a program or a stand-alone school site.

Created to:

Offer educational options to students; and/or

Achieve a racial or ethnic balance in schools; and/or

Offer instruction in a particular area (e.g., arts, math).

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Magnet Schools & Alternative Schools of Choice Alternative School/Program of Choice: A school or

program designed by an LEA to have a different structure, learning or academic philosophy.

Students can enroll via open enrollment.

Can be a program or a stand-alone school site.

Created to: Meet student needs, interests or learning styles;

Maximize the opportunity for improvement, implement innovative methods and ideas and improve the general level of education;

And to “Maximize the opportunity for students to develop the positive values of self-reliance, initiative, kindness, spontaneity, resourcefulness, courage, creativity, responsibility, and joy.”

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Placement Considerations Special Education/Needs Driven:

Rarely considered as part of the continuum of placement options.

Document basis for change of placement and consider whether FAPE can be offered in magnet/choice program.

Connect the dots!

Document offer of FAPE.

Transportation (if necessary for FAPE) must be provided.

Can IEP/504 team trump entry criteria?

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Placement Considerations Choice driven (Parent initiated)

IEP team meeting convened to address placement request;

Ensure current offer of FAPE in LRE is documented pursuant to the IEP process;

Thee-step 504 process addressed:

1. The student meets the same prerequisites for attendance in the program as do all other students with or without disabilities;

2. Student’s IEP or 504 team determines whether FAPE can be provided in the desired program; and


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Choice driven (parent initiated) – FAPE Available within magnet/choice program: Document current offer of FAPE in the IEP, note that parent is

declining such placement and electing to place student in preferred “choice” program;

Connect your dots and document offer of FAPE within magnet/choice program:

1. Goals should remain the same;

2. IEP team should consider if different services and supports are required to meet student needs in magnet/choice program;

3. Clearly document placement and services necessary for FAPE;

4. Consider LRE implications;

5. Transportation is at parent expense;

6. Consider follow-up IEP to review progress and program appropriateness.

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Placement Considerations Parental choice – FAPE NOT Available within

magnet/choice program:

Document current offer of FAPE in the IEP;

Document consideration of magnet/choice program;

Document prior written notice requirements in denying IS placement:

FAPE not available in choice program (e.g. too restrictive; requires a more structured program)

Services in choice program would fundamentally alter the nature of the magnet/choice program or otherwise cause an undue burden.

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Magnet Schools & Alternative Schools of Choice Magnet Schools and Special Education

Student with an intellectual disability (ID) attended a Magnet Program and was fully included with RSP support and a 1:1 aide and was considered to be a “non-diploma track” student due to her disability;

IEP team offered SDC placement at a comprehensive school site annually for grades 9 & 10, but Parent preferred Magnet Program and was chosen by lottery;

IEP team allowed enrollment: Student was making little to no academic progress at grade level; Student made excellent social progress, made friends, joined clubs

and made some progress in Art and Floral Design; Student made some progress toward her IEP goals at her

functional level and in her functional skills class; Student sat in the back of the class, was primarily taught by her

1:1 aide and curriculum for core classes was modified by RSP specialist .

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Magnet Schools & Alternative Schools of Choice Magnet Schools and Special Education (Cont…)

At annual meeting, IEP team offered SDC placement at comprehensive school for 11th grade and filed for due process when Parent refused and requested the Magnet placement.

District argued: Student made little to no progress in 2 years at Magnet; Inclusion with 1:1 aide and assignments from RSP teacher was

too restrictive and provided no educational benefit; SDC was required for independent and vocational living skills

and interaction with disabled peers.

Parent argued: Student gained academic and non-academic benefits at

Magnet; Student made progress at her functional level; SDC is not in the LRE.

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Magnet Schools & Alternative Schools of Choice Magnet Schools and Special Education (Cont…)

OAH Held: Student derived an academic benefit:

Made some progress toward her IEP goals at her functional level; Student’s work product confidence and self-advocacy skills

improved; Student was on a “non-diploma track” and not expected to make

grade-level progress.

Student derived a “wealth” of non-academic benefits: Extensive extracurricular participation, many friends and increased

her social-communication skills.

No adverse impact on the program: Student was a “pleasure” to have in class, not disruptive at all

Student was accepted in to the program (via lottery) and the District could offer a FAPE at that site. District was requiredto continue Student’s placement at the Magnet School.

Fresno Unified School District v. Parent OAH Case No. 2008120492

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Magnet Schools & Alternative Schools of Choice Alternative Schools and Special Education

District school discouraged enrollment of special education students:

Told by administrators that special education services were not available at the Alternative School site and posted on the website that special education services were available on a “limited basis”;

Only provided speech and language services on site;

If student required RSP, then bussed to another campus;

District did not staff Alternative site equally:

No RSP services available on site. District argued that this would be “cost prohibitive”;

District also argued that Alternative School was based on a “whole classroom” model and “pull outs” would fundamentally alter the program.

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Magnet Schools & Alternative Schools of Choice Alternative Schools and Special Education

(cont…)

OCR Held: Though not an express policy, District’s practices resulted in

communication to Parents that special education services were not available at the Alternative School;

District was not specific as to how staffing Alternative School with an RSP teacher was an undue burden (cost);

District was not specific as to how “pull out” fundamentally altered the program as other “pull out” students were able to attend (English learners, counseling, music programs).

Santa Clara Unified School District (OCR 2009)

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Magnet Schools & Alternative Schools of Choice Alternative Schools and Special Education (cont…)

Take-Away from OCR Ruling: Student may be excluded if:

Student is not qualified for the program;

IEP or Section 504 team determines program is not appropriate;

District can show that offering the services required by Student will be an undue burden and/or fundamentally alter the program.

Analysis must be made on an individual basis:

“Cannot categorically assume that special education students are not qualified” for the program;

“The fact that a student may need some form of special education services does not per se establish that his or her participation would require a fundamental alteration of the program”;

Requiring a choice between FAPE and equal access to a program = violation of Section 504 and ADA.

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Programmatic Considerations

• Allows us to keep students that may have left public schools

• Challenges our perception that there is “one way to FAPE”

• May require “changing up” how we deliver special education

working within the philosophy of the school while still meeting the needs of special education students

• Requires creative use of resource and staff

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Mariposa School of Global Education Emphasis on:

• Outdoor and environmental education

• World studies

• Foreign language

• Community outreach

Waldorf is the guiding philosophical base

Developmental and language based kindergarten

Theme-based learning

Beware the unintended consequence!

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Gifted & Talented Education andAdvanced Placement Classes

Gifted and Talented Education (“GATE”) LEAs are authorized, but not required by the Ed Code to:

“Develop unique education opportunities for high-achieving and underachieving pupils in California public elementary and secondary schools who have been identified as gifted and talented.”

May be: “Special day classes, part-time groupings, and cluster groupings.”

Curriculum must: “be planned and organized as integrated differentiated learning experiences within the regular school day and may be augmented or supplemented with other differentiated activities related to the core curriculum, including independentstudy, acceleration, postsecondary education, and enrichment.”

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Advanced Placement Classes (“AP”) and International Baccalaureate Programs (“IB”)

AP programs provide access to rigorous, college-level courses for interested and prepared students.

Passage of AP tests may result in college credit.

IB Diploma Program: A two-year comprehensive and rigorous pre-university curriculum leading to an IB diploma. Candidates may receive AP credit at universities and colleges.

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GATE and Special Education

A gifted student (with no other qualifying disability) is not a “child with a disability” under the IDEA.

However … a student may be gifted and also be eligible for special education pursuant to the IDEA.

A categorical exclusion from SLD eligibility based on giftednessviolates the law as the IDEA does not “provide for any exclusions based on intelligence level in determining eligibility.”

A child with a suspected SLD must be measured “against his or her own expected performance” not against “some arbitrary standard.” Levi v. O’Connell (2006) 144 Cal.App.4th 700 Letter to Ulissi (OCR 1992)

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Placement Considerations “Needs” unlikely to drive placement, e.g. placement in AP course

likely not necessary for FAPE.

Does IEP team “recommend” placement in Gifted/AP program? Can it trump entrance criteria?

Document, as appropriate, Student’s participation in Gifted/AP program

Determine what accommodations, if any, are appropriate.

What if IEP/504 team feels that participation in Gifted/AP program would negatively impact (e.g. increased anxiety, trigger migraines) student?

Consider supports, services and accommodations to support Student;

If team feels, even with additional supports, Student would not receive FAPE by participating in program, participation in program should not be offered.

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GATE and Special Education (Cont…) “Twice Exceptional” Students:

Student with Asperger’s and ADHD argued that he was “twice-exceptional” and was denied a FAPE because his IEP did not recognize or provide for his gifted status.

OAH Held: “Twice-exceptionality” is not recognized by the IDEA. Districts are not required to have a gifted program & where a District has opted not to have a program for any student, it is not required to create one for a gifted student.

“It is not the student’s giftedness which drives the IEP, it is his disability.”

Parent v. Hermosa Beach City Elementary School District, OAH Case No. 20110801019

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GATE and Special Education (Cont…)

If a child with a disability is also gifted, then: IEP for the student is created in the same manner as other IEPs… IEP is driven around the needs of the student, the determination of

areas in which the student needs special instruction, and determination of accommodations the student needs to access the curriculum in the least restrictive environment.

Remember: A child with a disability must be given the same access to a gifted program as all other children. Eligibility criteria must be applied equally. Consider if Student requires accommodations or if disability may

preclude fair and equal application of eligibility criteria.Parent v. Hermosa Beach City Elementary School District, OAH Case No. 20110801019

Monterey Peninsula Unified School District (OCR 2002)

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Advanced Placement and Special EducationDenying enrollment in AP classes based on

disability is a violation of Section 504.AP Classes are considered part of the regular

classes, or “general education.” If a student requires accommodations related

services to participate (e.g. Braille books, use of computer, extended time), they must be provided.

Enrollment in AP or IB cannot be conditioned upon “giving up” IDEA and/or Section 504 rights.

Dear Colleague Letter (OCR 2007)

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Program Considerations

Advanced Placement and Special Education

What if an accommodations impacts the integrity of the curriculum or coursework?

No need to provide accommodations to “give a student an advantage” (e.g. extra time where not necessary due to disability).

Be Careful: For example, an AP French class requires oral presentations to test fluency. A child with Asperger’s has anxiety about public speaking. Allowing student to give his presentation 1:1 with the teacher is reasonable – it still tests oral fluency but accommodates the disability as well.

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Special Education Program Options

Diminished “shine” of non-public schools

Change in mental health funding laws

LRE is more embraced within the educational community

Districts striving to maintain students within district programs

Districts better able to provide more diverse programming

Greater creativity in meeting the needs of special education students

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Pre-SchoolButtercup We are a full inclusion

program that meets the individual needs of typically developing children and children with special needs-side by side.

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Pre-schoolButtercup Collaboration between all staff-

special educators and general education teachers

psychologist, behaviorists, speech and language specialists, occupational therapists, adaptive physical education teachers and trained instructional assistants.

Provide specialized staff training inApplied Behavior Analysis

Positive Reinforcement

Corrective Feedback

Systematic Feedback

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Intensive Behavior ClassElementary All elementary grade levels as needed

Students with more intensive behavioral needs

Students with severe deficits in learning to learn skills Attending

Compliance

Frustration tolerance

Students who need very individualized ABA based instruction for the majority of the day

These are students who may otherwise not be able to remain in the district

Intensive data collected

Because we believe we can do more than just maintain students

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Social Communication ClassElementary

Third, fourth and fifth graders (right now).

Students with social communication issues.

Those that need more intensive social skills and learning to learn instruction on a daily basis.

Could be below grade level, at grade level or above grade level academically.

Students may spend varying amounts of time in special education.

These are students who traditionally have been served at their home school and done “ok”.

Addresses social communication issues before dealing with the more challenging social environment of middle school.

Systematic social skills curriculum implemented daily.

Program-specific adult support throughout the day and across environments as needed.

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Social CommunicationSecondary For students who require more intensive daily

instruction in social skills and learning to learn skills

1 hour daily of systematic social skills instruction (elective)

Individual as well as group behavior and social targets are identified and curriculum developed to work on specific skills

Adult support throughout the school day as determined by the IEP team

More than a “safety net”

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ED Programs-Enhanced Day Program

Programs at both middle school and high school.

Mental health is embedded into the program.

Students can be self-contained 100% of the day or included as much as they are able.

Safe place available throughout the school day.

Therapy groups as well as individual.

Specialized adult assistance in all classes as needed

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Tips in Looking at Choice Programs General procedural requirements: document any communications

with family regarding inquiry of “choice program”

Avoid discrimination and predetermination claims; stick to the facts and provide program/entry information

Meet IDEA procedural requirements: assessment and IEP team meetings to address placement options.

Can an IEP team trump entrance criteria for a program?

Think “outside the box” when thinking about special education programming in choice programs.

What happens when parents revoke consent for special education to access the choice program?

Consideration of the fundamental alteration/undue burden factors.

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Questions

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to

determine how this information may apply to your specific facts and circumstances.

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