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  3. II. Child Find and Special Education Services

II. Child Find and Special Education Services

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This section is an overview of the special education process: (1) identifying and evaluating a child with disabilities; (2) the child’s right to a free, appropriate, public education in the least restrictive environment, and the individualized education program that delivers that education; (3) early childhood education; (4) due process rights available to parents and child when there is a dispute; and (5) school disciplinary issues under IDEA.

A. Child Find, Identification and Evaluation

1. Child Find Under IDEA

“Child find” is part of IDEA. “Child find requires school districts to identify, locate, and evaluate all children with disabilities, including children who are home schooled, homeless, wards of the state, and children who attend private schools.”1 This includes children suspected of having a disability and needing special education, even though they may be advancing from grade to grade.2

In Colorado, child identification is the responsibility of the administrative unit in which the child attends school (public or private), or if the child is not in school, the unit where the child resides.3

Child find also applies to students ages 17 to 21 who are out of school, and who may have a disability.4

2. Initial Referral and Evaluation Under IDEA

Under IDEA, “a parent of a child, or a State educational agency, another State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.”5 However, in Colorado, interested persons initiating a referral must work with the parent or the appropriate administrative unit or state-operated program.6 The school must obtain informed parental consent before conducting the initial evaluation.7 If the parents do not provide consent for the initial evaluation, the district may request a due process hearing.8

If the child is a ward of the state, the agency must “make reasonable efforts to obtain the informed consent from the parent . . . for an initial evaluation to determine whether the child is a child with a disability.”9 However, the agency is not required to obtain informed consent from the parents if: (1) the agency cannot discover where the parents are; (2) the rights of the parents have been terminated; or (3) the parent’s right to make educational decisions has been removed by a judge in accordance with state law, and an individual appointed by the judge to represent the child has consented to an individual evaluation.10 If the agency cannot obtain consent from the parents, there are rules to determine whether someone else is acting as a parent or to appoint an educational surrogate parent (ESP). These rules are discussed more fully in the section on Parents and Surrogate Parents.

Initial evaluations must be completed within sixty days of receiving parental consent.11 If the child enrolls in a school of another public agency after the sixty days has begun, and prior to a determination by the previous public agency as to whether the child has a disability, the time frame does not apply if the current public agency is making sufficient progress, and the parent and the public agency agree to a specific time when the evaluation will be completed. The time frame also does not apply if the parents have repeatedly refused to produce the child for evaluation.12 However, assessments of children with disabilities who transfer schools should be coordinated between prior and subsequent schools and expedited.13

If the parents (or surrogate parent) disagree with the evaluation, they may obtain an independent educational evaluation.14 Parents may request an independent evaluation at the school district’s expense. The school district must either grant the request for an evaluation or provide an administrative hearing to review the existing evaluation.15

3. Eligibility Meeting

After the evaluation, a meeting takes place with a multidisciplinary team of evaluators and parents to determine if a child is eligible for special education services. Advocates and parents should ask for copies of the evaluation before the eligibility meeting,16 although with the short timelines under IDEA, they may not be available.

A multidisciplinary team determines eligibility. This team must include:

  • at least one teacher or other specialist with knowledge in the area of the suspected disability;
  • other qualified professionals as necessary; and
  • a parent.17

Other advocates also may be invited,18 at the discretion of parent or school.

An advocate for the child should consider:

  • Are the right individuals present?
  • Have procedural safeguards been followed?
  • Are evaluations appropriate?
  • Is the eligibility decision a team decision?
  • Do the definitions of a disability fit IDEA?19

After the child is determined eligible under IDEA, an IEP will be created. Usually, determining eligibility and creating an IEP is a successful, collaborative process when the right individuals are present. The eligibility meeting and creation of the IEP may occur at the same or different meetings,20 depending partly upon whether evaluations and IEP proposals have been available to all parties in advance.

Before services can be provided initially, the parents must consent. If the parents do not consent, there is no provision for the school to appeal or override this decision.21 However, if the parent does not consent, the public agency is no longer required to make FAPE available to the child.22 For a reevaluation, parental consent is also required, but this requirement is excused if the public agency has made reasonable attempts to gain the consent, and the child's parent has failed to respond.23

Parents often believe they must consent to the IEP each year. This is not the case, as the regulation only requires that parents consent to the initial provision of special education and related services.24 Parents may, however, revoke consent for the continued provision of special education and related services, as long as they give prior written notice. Once again, if parents do this, the public agency is not required to provide FAPE.25 Parents may refuse to consent to one service or activity without being denied "other service, benefit, or activity of the public agency."26

If parents or an educational surrogate parent disagree with the decisions made by the IEP team, procedural safeguards protect their rights. Parents may file a request for a due process administrative hearing, may request mediation with or without filing for a due process hearing, or may file an IDEA complaint with the state department of education.27 See 20 U.S.C. § 1415 for more details.

4. Evaluation under Section 504

Section 504 requires the school to perform an evaluation, and if needed, develop a 504 plan, which need not be in writing. Under Section 504, a free appropriate public education is “the provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met . . .”<28 Section 504 requires that a child be provided with equal access to an education and focuses on accommodations. Like IDEA, Section 504 addresses placing students with disabilities in the least restrictive environment.29 This includes access to nonacademic and extracurricular activities and services, such as meals, recess, recreational athletics, health services, counseling, clubs, and transportation.30

Impartial hearings are also available under Section 504, but there are fewer procedural safeguards.31 However, parents can file a complaint with the Office of Civil Rights, U.S. Department of Education, which will perform a thorough investigation.32

B. IEP and Follow-Up

1. Free Appropriate Public Education (FAPE)

Bitter, though bloodless, battles have been waged over conflicting understandings of what constitutes a free appropriate public education (FAPE). According to IDEA, FAPE means special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge:

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under Section 1414(d) of this title.33

In Colorado, “special education” is “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.”34 The specific instruction that can be provided is detailed in ECEA Rule 2.43.

In 1982, the U.S. Supreme Court established the FAPE standard that prevails to this day. Specifically, an IEP provides FAPE if it is "reasonably calculated to allow the child to receive educational benefits."35 Under case law, FAPE need not be the best program, nor a program designed to maximize a child’s potential.36 A parent or child advocate should never ask for what is “best” but for what is “appropriate,” i.e., reasonably calculated to allow the child to make some progress in the classroom.37 Although new language in the statute does mandate educating children with disabilities “to the maximum extent possible,”38 courts interpreting IDEA since 2004 have consistently held that the Rowley standard continues to apply, and that Congress did not alter the FAPE standard to one requiring maximization.39

Related services means transportation and developmental, corrective, and other supportive services such as the following examples:

  • speech-language pathology and audiology;
  • interpreting services;
  • psychological services;
  • physical and occupational therapy;
  • recreation, including therapeutic recreation;
  • social work services;
  • school nurse services in some circumstances;
  • counseling services; and
  • medical services for diagnostic and evaluation purposes only.40

If a child may have been denied FAPE, or the parents and school disagree on an IEP, procedural protections and processes are outlined in 20 U.S.C. § 1415(b) through (j) and 34 C.F.R. §§ 300.500 through 518. For instance, the school district is required to give written notice to the parents, covering specific elements, when it proposes to or refuses to initiate or change the identification, evaluation, or educational placement of a student with disabilities.41

However, if the parties disagree on the IEP, it may be worthwhile to begin a temporary interim placement with the services the parties do agree on.42 In any case, if an IEP already exists, the student would continue to receive services under that IEP until the dispute is resolved.

2. Least Restrictive Environment (LRE)

Children with disabilities are entitled to be educated in the least restrictive environment (LRE) possible, that is, with non-disabled children.43 “Educating children in the least restrictive environment in which they can receive a free appropriate public education is one of the IDEA’s most important substantive requirements.”44Before placing students in a separate environment from students without disabilities, such as special classes or separate schools, schools must consider using supplementary aids and services to help them succeed in the regular classroom.45 Children should be provided with special classes, separate schooling, or other removal from the regular educational environment only to the extent that they cannot be educated in regular classes with the use of supplementary aids and services due to the nature or severity of their disability.46

3. The Individualized Education Program (IEP)

An IEP is a written statement for each child with a disability that includes:

  • a statement of the child’s present level of academic achievement and functional performance;
  • a statement of measurable annual goals, including academic and functional goals;
  • a description of how the child’s progress toward meeting the annual goals will be measured;
  • a statement of the special education and related services to be provided to the child;
  • an explanation of the extent, if any, to which the child will not participate with children in regular classes and activities;
  • a statement of appropriate accommodations;
  • an explanation of alternative assessments, if applicable;
  • the date for the beginning of services, and frequency, location, and duration of those services; and
  • transition goals.47

More details about developing the IEP are provided in 20 U.S.C. § 1414(d)(1)(A) and 34 C.F.R. §§ 300.320 and 324.

Whether children should be educated in regular classes or in self-contained special education settings will vary on a case-by-case basis. Parents or primary caretakers will have unique and important insights into a child’s coping skills, and how the child reacts to an educational environment. 48

An IEP should be highly specific in terms of present levels of performance, services, and progress to be achieved.

The IEP team must include:

  • the parents of the child;
  • at least one regular education teacher;
  • at least one special education teacher;
  • a representative of the local educational agency who is knowledgeable;
  • someone who can interpret instructional implications of evaluations;
  • other individuals at the discretion of the parent or agency; and
  • the child if appropriate.49

Because people who have special knowledge or expertise regarding the child should be present, either the school or the parents should invite persons involved with the child, such as a foster parent, caseworker, guardian ad litem, or therapist, to participate on the IEP team.50

An IEP should address special factors, such as limited proficiency in English or behavioral problems. “If the student’s behavior impedes the student’s learning or the learning of other students, then positive behavioral interventions and supports and other strategies should be considered to address that student’s behavior.”51

4. Monitoring the IEP

The implementation of the IEP and the student’s progress should be monitored.

Under IDEA, the IEP is reviewed on an annual basis.52 Also, at a minimum, the student must be thoroughly evaluated at a triennial cognitive/psychological/social review . Reevaluation could entail new assessments, or may be made based upon a review of existing information.53

However, it is not necessary to wait for either an annual or a triennial review. If there is a problem, such as improper implementation of the IEP, or a need for additions or changes, a parent or educational surrogate parent can request an IEP meeting and reevaluation even before the annual review.54 For example, a child may have additional disabilities, or a disability may have been misdiagnosed.55 Determining a change of disability or other eligibility may be made only after reevaluation.56

5. School Transfers

If a child with a disability who has an IEP transfers school districts within the state during the academic year, the school must provide the child with comparable services until the old IEP is adopted or a new IEP is developed and implemented.57 Both schools must take reasonable steps to transfer promptly the child’s records.58

6. Administrative Unit for Services

Somewhat complex rules determine which administrative unit is responsible for providing services.59 For instance, normally a child is a resident of the administrative unit where the parent or guardian resides, even if the child attends school in another district.60 However, there are exceptions. For instance, if the child is in a foster care home, the child is a resident of the administrative unit where the foster care home is located.61 When a student is placed in a residential treatment facility, the administrative unit of residence is determined by where the parent or guardian resides, unless the student is an “educational orphan,” in which case the administrative unit of attendance, based on where the facility is located, is responsible.62 Place of residence is defined completely in ECEA Rule 2.02.

C. Early Childhood Services

Different sections of IDEA cover services for young children, depending on their age. These are discussed below.

1. Part C of IDEA

Part C of IDEA governs early intervention services for infants and toddlers under age three. Congress found an urgent and substantial need for services:

  • “to enhance the development of infants and toddlers with disabilities, to minimize their potential for developmental delay, and to recognize the significant brain development that occurs during a child’s first 3 years of life;”
  • “to reduce the educational costs to our society, including our Nation’s schools, by minimizing the need for special education and related services after infants and toddlers with disabilities reach school age;”
  • "to maximize the potential for individuals with disabilities to live independently in society;"
  • “to enhance the capacity of families to meet the special needs of their infants and toddlers with disabilities; and”
  • “to enhance the capacity of State and local agencies and service providers to identify, evaluate, and meet the needs of all children, particularly minority, low-income, inner city, and rural children, and infants and toddlers in foster care.”63

An infant or toddler with a disability is defined as an individual under the age of three who needs early intervention services because of:

  • developmental delays in one or more of a number of areas;
  • a diagnosed physical or mental condition that has a high probability of resulting in developmental delay;
  • at a state’s discretion, at-risk infants and toddlers, who would be at risk of experiencing a substantial developmental delay if early intervention services are not provided; and/or
  • at a state’s discretion, children with disabilities who are eligible for services under preschool grants.64

Developmental delays are described in more detail in Rule 2.08(10)(a), as are various “identifiable conditions known to have a high probability of resulting in significant developmental delays.”65 Examples are low birth weight, Down’s syndrome, and fetal alcohol syndrome.

Under Part C, early intervention services must be available to infants and toddlers with disabilities who are homeless or who are wards of the State.66 Colorado statutes defining early intervention services clarify the division of responsibilities between the Department of Human Services and the Department of Education and coordinate payment.67

Under the Child Abuse Prevention and Treatment Act (CAPTA), child welfare caseworkers can make referrals for early intervention services for substantiated abuse and neglect cases.68 For that matter, anyone involved with the child can request a referral.69

Colorado has a well-established Early Intervention Program. “The Colorado Department of Human Services, Division for Developmental Disabilities (DDD) is the lead agency for Part C in Colorado, and the program is referred to as Early Intervention Colorado.”70 In Colorado, Child Find responsibilities are shared between the DDD and the Colorado Department of Education. Generally, school districts identify and evaluate children, and local Community Centered Boards (CCB) provide service coordination and IFSP services and coordinate efforts among interagency groups.71

Under Part C Early Childhood Services, an Individualized Family Service Plan (IFSP) is developed. “The IFSP process emphasizes services to meet the child’s and family’s needs and considers the resources, priorities and concerns of the family.”72 The IFSP addresses the following in writing: (1) eligibility determination of the child; (2) an objective statement of development; (3) the resources and priorities of the family related to the child; (4) outcomes to measure the child’s progress; and (5) necessary supports and services to achieve the outcomes. The IFSP is reviewed at least every six months.73 Early intervention services should be provided in natural environments, such as home and community settings.74

An infant or toddler with a disability must be provided with:

  • “a multidisciplinary assessment of the unique strengths and needs of the infant or toddler and the identification of services appropriate to meet such needs;”
  • “a family-directed assessment of the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family’s capacity to meet the developmental needs of the infant or toddler; and”
  • “a written individualized family service plan developed by a multidisciplinary team, including the parents.”75

For more details on the content of an IFSP, see 20 U.S.C. § 1436(d). Parents must give informed written consent before the child can be provided with services.76 Parental consent is different under Part C than other parts of IDEA. Parents may accept or decline any early intervention service without jeopardizing other services.77 In addition, when early intervention services are revised, parental consent must be given before the revised services are provided.78

The IFSP will identify a Service Coordinator, who is responsible for implementing the plan, and who coordinates a variety of local service providers and service agencies.79 The plan must be reevaluated and reviewed at least every six months, but may be done in person or by other means, such as a conference call.80

The transition from Part C Early Intervention Services must be planned, including whether the child is eligible for preschool services under Part B, or entitled to FAPE and an IEP under Part B.81 The IFSP can be continued for children age three to five, if appropriate.82

Part C also includes certain procedural safeguards.83

2. Part B of IDEA

IDEA funds may be used under Part B for preschool grants, for children with disabilities aged three through five, inclusive, and, at the state’s discretion, for two year old children with disabilities who will turn three during the school year.84 Children with developmental delays, or conditions “associated with significant delays in development” are included in Colorado.85

IDEA funds may also be used for early intervention services, with a particular emphasis on students in kindergarten through grade three, “who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment.”86

C. Due Process

An entire section of IDEA is devoted to procedural safeguards protecting the rights of children with disabilities and their parents. These procedural safeguards must be outlined in a detailed, annual notice that the school is required to give parents.87 The school district is also required to give “prior written notice” to the parents, covering specific elements, when it proposes to or refuses to initiate or change the identification, evaluation, or educational placement of a student with disabilities.88

If parents disagree with a school’s decision, such as an evaluation, a change in evaluation, or a denial of services, a good place to start is the informal dispute resolution procedures in the school, such as a conference with the director of special education. IDEA does not require that informal resolution options be exhausted before a due process hearing may be requested, but if issues can be resolved at a lower and local level, it may serve the child better and preserve relationships.

Parents may file a due process complaint notice "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child."89 The due process complaint notice may be filed any time from immediately to within two years of the date the parent knew or should have known of the alleged basis for the complaint. The hearing request triggers a strict timeline.90 Any issues not raised in the complaint may not be addressed unless the school district agrees, or the notice is formally amended.91 Once a due process complaint has been filed, the school district has 15 days to convene a resolution session involving the parents and relevant members of the IEP team, unless the parties agree to waive the resolution session or agree to attempt to resolve the dispute through mediation.92 In the rather rare event (in Colorado) that the case goes into due process, the impartial due process hearing is a full-blown administrative hearing in front of a hearing officer.93 Either side can appeal the decision to the Colorado Department of Education, which will conduct an impartial review under an administrative law judge.94 In 2011, Colorado is moving towards a single tier due process system in which ALJs from the Office of Administrative Courts will conduct IDEA administrative hearings. If the new ECEA Rule 6.02 is passed, the new review process will take effect in July 2011.

After the administrative process, the matter can be appealed to federal or state district court. Parents--or in some cases the school district--who prevail in IDEA cases, may seek attorney fees from the opposing party--certainly in federal court, and possibly in state court.95

If the parties disagree on the IEP, it may be worthwhile to begin an interim placement with the services the parties do agree on.96 In any case, if an IEP already exists, the student would continue to receive services under that IEP until the dispute is resolved under the “stay put” provision.97 The most effective advocacy for a child builds constructive relationships in the system.98

Parents may also, or alternatively, file a state-level complaint with the Colorado Department of Education ("CDE"). This triggers an investigation rather than a hearing. The CDE can require the school district to remedy or correct the violation, including compensatory services, monetary reimbursement, corrective action, and appropriate future provision of services.99

D. School Discipline Under IDEA

Due process rights regarding school discipline exist for all students. Discipline under IDEA and Section 504 is much more complex, and attorneys and caregivers should be prepared to advocate for a student’s due process rights.100 Strict timelines also exist for this process. Filing a complaint with the CDE is best for clear violations of IDEA rather than disagreements over services.101

1. When IDEA Applies to Discipline

When a child with a disability violates a code of student conduct, IDEA provides a special framework for discipline. “School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.”102 Congress added this language to clarify “that school officials may use discretion and consider each individual situation carefully, and [rebut] arguments by administrators who refuse to exercise discretion.”103 This may “encourage flexibility, rather than a zero tolerance approach, to disciplining students with disabilities.”104 The American Bar Association opposes “zero tolerance” policies in principle.105

IDEA procedures and protections apply to a child who has a disability and is eligible for special education and related services. In addition, a child who has not yet been determined eligible and has violated a code of student conduct, still may assert these protections if the local educational agency had knowledge that the child has a disability.106 A local educational agency shall be deemed to have knowledge that a child has a disability if, before the behavior that precipitated the disciplinary action:

  • a parent has expressed concern in writing to a teacher or the administration that the child is in need of special education and related services;
  • a parent has requested an evaluation of the child under IDEA (with some exceptions);
  • a teacher or other personnel has expressed concerns about a pattern of behavior by the child to supervisory personnel of the agency.107

However, these exceptions do not apply if a parent has not allowed an evaluation of the child, or has refused services.108

Even if the local educational agency did not have knowledge that the child has a disability, an evaluation may be requested when the child is subject to disciplinary measures, and “shall be conducted in an expedited manner.” If the child is determined to have a disability, that child receives all rights and protections under IDEA.109

If parents disagree with decisions regarding placement in the discipline context, they may request a due process hearing. With the exception of certain dangerous behavior, the child has a right to “stay put” in the current educational placement during this process.110

2. Disciplining a Child With a Disability/Manifestation Determination

School investigation of misconduct also must accommodate the disabilities of the student. During questioning, for example, provision must be made to accommodate disabilities such as deafness or cognitive impairment.111

School personnel may suspend a child with a disability who violates a code of student conduct, or remove the child from the current placement to an appropriate, interim, alternative educational setting for not more than ten consecutive school days.112

However, if the disciplinary consequences will exceed ten school days cumulatively, the school district must determine whether the behavior was a manifestation of the child’s disability.113 Note that if there is doubt as to whether the alleged misconduct occurred, it may be necessary to have a pre-hearing to determine whether the child committed the act, before holding a manifestation determination as to whether the conduct was a manifestation of the disability. A student has a constitutional right to due process in school discipline.114

The manifestation determination is carried out by the local educational agency (LEA), the parent, and relevant members of the IEP team, as determined by the parent and the LEA. Parents are entitled to proper notice of the manifestation determination, which notice must be sufficient to allow them to exercise their right to include relevant members of the IEP team (including persons with special knowledge of the child).115 Effectively, it is the IEP team that will determine the manifestation determination issue.116 The team reviews all relevant information in the student’s file, including the IEP and information from teachers and parents.117 It determines whether “the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability . . . .”118 It also determines whether “the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.”119 If either of these is the case, the conduct is a manifestation of the child’s disability.120

If the conduct in question was the direct result of the LEA’s failure to implement the IEP, the agency must take immediate steps to remedy the deficiencies.121 If the behavior was not a manifestation of the disability, the LEA may discipline in the same manner as it would discipline a student without a disability.122

To prepare for a manifestation determination, a parent or child advocate could obtain a comprehensive psycho-educational evaluation of the child by an expert in the disability (for example, autism or bipolar disorder). The evaluator should analyze the relationship, if any, between the child’s disability and the behavior and submit a detailed report that describes the disability, the basis for determining the behavior was a manifestation of the disability, and recommendations for an appropriate program. The evaluator may attend the manifestation determination hearing.123

In determining whether inappropriate behaviors are a manifestation of the disability, the IEP team should consider any medical, psychological, or psychiatric reports available. If needed at this stage, a functional behavioral assessment can provide more information. This assessment collects data on the behavior such as the setting, timing, environment, reinforcement, and interventions attempted or not attempted to answer the question of why the behavior occurred.124 A functional behavioral assessment should include interviews and rating scales. It should be performed by an expert, who directly observes the child’s behavior in his or her natural environment, and the events that immediately precede and follow the problem behavior.125

If the behavior was a manifestation of the disability, the IEP team shall:

  • conduct a functional behavioral assessment (if not previously performed);
  • implement a behavioral intervention plan (BIP);
  • review any current behavioral intervention plan and modify it as needed to address the behavior; and
  • return the child to the previous placement, unless special circumstances exist, or unless the parents and local educational agency agree to a change of placement.126

These special circumstances, which prevent the return of the child to the previous placement, exist when the child, while at school, on school premises, or at a school function:

carried or possessed a dangerous weapon, capable of causing death or serious bodily injury;127 (bodily injury means “bodily injury which involves--a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. . .”).128

knowingly possessed or used illegal drugs (a controlled substance that is not legally possessed), or sold or solicited the sale of a controlled substance at school; or

inflicted serious bodily injury on another person.129

Under these circumstances, even if the behavior was a manifestation of the disability, the student may be removed to an interim, alternative educational setting (IAES) for not more than forty-five days.130 The setting is determined by the IEP team.131

Whether or not the behavior was a manifestation of the child’s disability, the following must occur:

  • If the child has been removed from the current placement for more than ten school days in the same school year, during any further removal, the child must continue to receive educational services and progress towards meeting the goals set out in the IEP.132 (Note: the ten days need not be consecutive.)
  • The child shall receive, as appropriate, “a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.”133

3. Appeal of a Manifestation Determination

A parent may request a hearing to appeal either the result of the manifestation determination or the decision regarding placement in an interim alternative educational setting (IAES).134 The school also can request a hearing if it believes “maintaining the current placement of the child is substantially likely to result in injury to the child or to others.”135 During the appeal, the child remains in the IAES.136 The hearing process is expedited, and must occur within twenty school days of the date the hearing is requested, with a determination within ten school days after the hearing.137 More details on due process hearings are found in the ECEA Rules.138

4. Change in Placement

If the student is removed for more than ten days, regardless of whether the misbehavior was a manifestation of the disability and whether or not the student is being disciplined in the same manner as a student without disabilities, the extended removal is a change in placement. In this situation, the school must continue providing educational services consistent with the IEP.139

5. Preventing Discipline Problems

Children with disabilities often need proactive attention to prevent discipline problems from developing because of their frustration or inadequate social skills. For many children with disabilities, it is unrealistic that the child “work it out” or “tough it out.” The child may not understand the situation or how to deal with it. Moreover, children with disabilities often are a target for bullying, then are not uncommonly blamed for “inappropriate responses.” The following steps may be helpful:

  • make sure the child understands the school rules and which rules are to be taken seriously (see zero tolerance policies);
  • monitor the child’s progress and intervene when issues occur that cause the child anxiety, such as bullying or other incidents;
  • obtain assistance from an anti-bullying program, such as through a community agency, may be helpful;
  • if not a breach of confidentiality, notify the school when something particularly upsetting has happened in the child’s life;
  • develop good ongoing relationships with school personnel;
  • connect the child with an ongoing outside mentor;
  • if there is a pattern of misbehavior, request an evaluation for a disability;140 and
  • try to identify a teacher or counselor the child can talk to regularly. A child who believes there is a way to solve problems is less likely to melt down or explode.

6. Behavioral Intervention Plan (BIP)

A behavioral intervention plan (BIP) is designed to manage a student’s behavior and prevent the circumstances that precipitated the behavior. It should include:

  • ways to reduce stress, such as finding a quiet place to go when the student is overwhelmed, with a prearranged signal that will allow the student to leave the classroom or other stressful setting;
  • ways that teachers can recognize a problem is developing (for example, physical signs such as shaking or twitching, bright red ears, raised voice);
  • positive reinforcement for good behaviors;141 and
  • education for the student on how to manage his or her own behavior by recognizing escalating stress and learning strategies to cope.

Sometimes, when the student knows a highly structured plan exists, including positive steps that the student can control, the incidence of stress-induced inappropriate behavior is drastically reduced. If support staff provides regular training in problem solving and conflict management each time a conflict situation arises, the student not only internalizes the positive strategies, but approaches life with growing hope that problems may have a solution. Hope is a powerful motivator for positive behavior.

7. School Discipline Under Section 504

Discipline under Section 504 is similar to but not as closely regulated as under IDEA. Schools may not punish students for misconduct related to their disability.142 Excluding a student from school for more than ten consecutive school days, or a series of suspensions that totals more than ten days in a school year, is likely to be a significant change in placement that requires a re-evaluation and a manifestation determination meeting.143 If the misconduct is related to the disability, the student may not be continually suspended or expelled, with certain exceptions for emergencies.144 The student is protected whether or not the school has identified the disability.145

Parents may challenge an evaluation by requesting an impartial due process hearing. However, unlike under IDEA, there is no “stay put” provision while waiting for a due process hearing.146 Under Section 504 alone, when IDEA does not apply, if a child’s misbehavior is not a manifestation of a disability, the child can be expelled, and the school is not required to continue providing FAPE.147

F. Restraint and Seclusion

Nationally, restraint and seclusion techniques in schools have become issues of concern, because of cases of abuse and even death of children.148 The Government Accountability Office issued a lengthy report on seclusions and restraints and some of the problems.149 Colorado has developed rules governing the use of seclusion or restraint.

Restraint is defined as "any method or device used to involuntarily limit freedom of movement." This may include physical force, mechanical devices, chemical restraints, and seclusion.150 Chemical restraints does not include regular prescription medication or medication for life-saving procedures.151 Mechanical restraints includes physical devices that restrict bodily movement, but not devices agreed to by the IEP team and used in accordance with an IEP or 504 plan.152 Physical restraint means the use of bodily, physical force, but does not include: (1) holding a student for less than five minutes by a staff person for the protection of the student or others; (2) brief holding for calming or comforting; or (3) minimal physical contact for guidance or assistance.153

Seclusion means placing a student alone in a room from which the student cannot voluntarily leave. It does not mean time-out, where the student is not physically prevented from leaving.154 Some argue that it does include blocking a student from leaving a room, even when the door is not locked, if the staff person is just outside the room.

Staff must be adequately trained on restraint and seclusion practices.155 If restraint might be used with a student, the school must notify the parents in writing and discuss the plan. If restraints are used, the school must verbally notify the parents the same day and submit a written report that includes certain required information within one school day.156

Restraints are to be used in emergencies if less restrictive alternatives fail. This means they should be used for safety issues when a student is violent or dangerous. They must never be used as punishment or in an effort to gain compliance.157 They should be used only for the time necessary and with the minimum force necessary.158 If a student must be secluded, the student must have bathroom breaks and be in a safe and reasonably lighted and ventilated area.159

When used, restraints may not impede breathing or place excess pressure on a student's back or chest. The student should have the opportunity to stop the violent or dangerous behavior that is causing the restraint. The student must be monitored for physical safety. Schools cannot use chemical restraints. In schools, only armed security guards may use mechanical restraints.160

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1. Peter W. D. Wright, Pamela Darr Wright, Special Education Law, 72 (Harbor House Law Press Inc. 2d ed. 2007); See 20 U.S.C. § 1412(a)(3) (2005); 34 C.F.R. § 300.111(a); C.R.S. § 22-20-103 (4).

2. 34 C.F.R. § 300.111(c) (2006).

3. State Bd. of Ed. Rule 4.02(1)(a)(i) and (ii), 1 Code Colo. Regs. 301-8 (2009).

4. Rule 4.02(2)(c)(iv).

5. 20 U.S.C. § 1414(a)(1)(B) (2005).

6. Rule 4.02(3)(a)(ii).

7. 20 U.S.C. § 1414(a)(1)(D)(i).

8. 20 U.S.C. § 1414(a)(1)(D)(ii).

9. 20 U.S.C. § 1414(a)(1)(D)(iii).

10. 20 U.S.C. § 1414 (a)(1)(D)(iii)(II).

11. Wright, supra note 1 at 93; 20 U.S.C. § 1414(a)(1)(C).

12. 34 C.F.R. § 300.301(d) (2007).

13. 34 C.F.R. § 300.304(c)(5) (2006).

14. 20 U.S.C. § 1415(b)(1)(2005).

15. Randy Chapman, The Everyday Guide to Special Education Law, 27 (The Legal Center for People with Disabilities and Older People 2005); 20 U.S.C. § 1415.

16. Kathleen McNaught, Learning Curves: Education Advocacy for Children in Foster Care 50 (ABA Center on Children and the Law 2004).

17. Rule 4.02(6)(b)(i).

18. McNaught, supra note 16 at 50.

19. Id. at 51.

20. Rule 4.02(6)(b).

21. 34 C.F.R. § 300.300(b)(3).

22. 34 C.F.R. § 300.300(b)(4)(i).

23. 34 C.F.R. § 300.300(c)(2).

24. 34 C.F.R. § 300.300(b)(3).

25. 34 C.F.R. § 300.300(b)(4).

26. 34 C.F.R. § 300.300(d)(3).

27. McNaught, supra note 16 at 62-63.

28. 34 C.F.R. § 104.33(b)(1).

29. Chapman, supra note 15 at 79.

30. Id. at 79; 34 C.F.R. § 104.34(b) and 104.37(a).

31. Wright, supra note 1 at 293.

32. www.ed.gov/about/offices/list/ocr/index.html.

33. 20 U.S.C. § 1401(9) (2008).

34. Rule 2.43(1)(a).

35. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).

36. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); Wright, supra note 1 at 51.

37. Id.

38. 20 U.S.C. § 1400(c)(5)(A) (2005).

39. Thompson v. R2-J Sch. Dist. v. Luke P., 540 F.3d 1143 (10th Cir. 2008)(standard for FAPE is “some educational benefit,” not maximization); Sytsema v. Academy Sch. Dist. No. 20, 538 F.3d 1306 (10th Cir. 2008)(same); K.L. v. Mercer Island Sch. Dist., 575 F.3d 1025 (9th Cir. 2009)(2004 reauthorization of IDEA did not alter FAPE standard).

40. Chapman, supra note 15 at 5-6.); 20 U.S.C. § 1401(26).

41. 20 U.S.C. § 1415(b)(3).

42. Joseph B. Tulman and Joyce A. McGee, eds., Special Education Advocacy for Children in the Juvenile Delinquency System 9-16 (University of the District of Columbia School of Law Juvenile Law Clinic, 1998).

43. 34 C.F.R. § 300.114(a).

44. L.B. and J.B. v. Nebo School Dist., 379 F.3d 966, (10th Cir. 2004).

45. 20 U.S.C. § 1412(a)(5) (2005); Chapman, supra note 15 at 13.

46. 34 C.F.R. § 300.114(a).

47. 20 U.S.C. § 1414(d)(1)(A) (2005).

48. Email from Brad Bittan, Juvenile Law Attorney (May 22, 2008)(on file with author).

49. 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321.

50. Kathleen McNaught, Mythbusting: Breaking Down Confidentiality and Decision-Making Barriers to Meet the Education Needs of Children in Foster Care 22 (American Bar Association 2005). Available at http://www.abanet.org/child/education/other-pub.shtml (viewed Oct. 15, 2010)

51. Chapman, supra note 15 at 34-35.

52. 20 U.S.C. § 1414(d)(4)(A).

53. 34 C.F.R. § 300.305.

54. 20 U.S.C. § 1414(a)(2)(A) and (B).

55. McNaught, supra note 16 at 24.

56. Rule 4.02(6)(c).

57. 20 U.S.C. § 1414(d)(2)(C)(i)(I).

58. 20 U.S.C. § 1414(d)(2)(C)(ii).

59. See C.R.S.§ 22-20-109; C.R.S. § 22-20-107.5.

60. Rule 2.02(1)(d).

61. Rule 2.02(1)(c).

62. Email from Maureen Wirth, Colorado Department of Education (May 19, 2008, 9:27 a.m.)(on file with author).

63. 20 U.S.C. § 1431(a) (2005).

64. 20 U.S.C. § 1432(5) (2005).

65. Rule 2.08(10)(a).

66. 20 U.S.C. § 1434(1) (2005).

67. 20 U.S.C. § 1435(a)(3) (2005); See C.R.S. § 27-10.5-701; C.R.S. § 27-10.5.-702; C.R.S. § 27-10.5-703; C.R.S. §27-10.5-704.

68. See 42 U.S.C. § 5106a(b)(2)(A)(xxi) (2003).

69. Angela J. Herrick & Helen D. Ward, Advocating for the Educational Needs of Children in Out-of-Home Care 6-7 Colorado Department of Human Services.

70. Early Intervention Colorado State Plan Under Part C of the Individuals With Disabilities Education Act, p. 1, Department of Human Services, Division of Developmental Disabilities (2010).

71. Id. at pp. 11-12.

72. Chapman, supra note 15 at 93.

73. Early Intervention Colorado State Plan Under Part C, supra note 66 at pp. 20-23.

74. Chapman, supra note 15 at 93, 96.

75. 20 U.S.C. § 1436(e).

77. 20 U.S.C. § 1439(a)(3); 34 C.F.R. § 303.405.

78. 34 C.F.R. § 303.404(a).

79. Chapman, supra note 15 at 98.

80. 34 C.F.R. § 303.342(b)(2); Office of Special Education Programs, Letter of 11/13/2009, available at http://www2.ed.gov/policy/speced/guid/idea/letters/2009-4/wipple102709complaintres4q2009.pdf (viewed Feb. 19, 2011).

81. Id. at 98-99; 20 U.S.C. § 1436(d)(8); 20 U.S.C. § 1437(a)(9)(A)(i) (2005).

82. McNaught, supra note 16 at 79.

83. Chapman, supra note 15 at 100-101; 20 U.S.C. § 1439(a) (2005).

84. 20 U.S.C. § 1419(a) (2005).

85. Rule 2.08(9)(a)(ii).

86. 20 U.S.C. § 1413(f)(1) (2005).

87. 20 U.S.C. § 1415(d).

88. 20 U.S.C. § 1415(b)(3) and (c).

89. 20 U.S.C. § 1415(b)(6).

90. 20 U.S.C. § 1415(c) and (f).

91. 20 U.S.C. § 1415(c)(2)(E) and (f)(3)(B).

92. 20 U.S.C. § 1415(e) and (f)(1)(B).

93. 20 U.S.C. § 1415(f) and (h).

94. 20 U.S.C. § 1415(g).

95. 20 U.S.C. § 1415(i); Wright, supra note 1 at 117.

96. Tulman, supra note 39 at 9-16.

97. 20 U.S.C. § 1415(j).

98. Wright and Wright, supra note 1.

99. 34 C.F.R. § 300.151(b).

100. McNaught, supra note 16 at 17.

101. Randy Chapman, The Everyday Guide to Special Education Law, 59 (The Legal Center for People with Disabilities and Older People 2008)

102. 20 U.S.C. § 1415(k)(1)(A) (2005); 34 C.F.R. § 300.530(a).

103. Wright, supra note 1 at 118.

104. Chapman, supra note 15 at 64-65.

105. McNaught, supra note 16 at 93.

106. 20 U.S.C. § 1415(k)(5).

107. 20 U.S.C. § 1415(k)(5)(B); 34 C.F.R. § 300.534(b).

108. 20 U.S.C. § 1415(k)(5)(C); 34 C.F.R. § 300.534(c).

109. 20 U.S.C. § 1415(k)(5)(D); Wright, supra note 1 at 122; 34 C.F.R. § 300.534(d).

110. 20 U.S.C. § 1415(j).

111. Tulman, supra note 39 at 4-8.

112. 20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b)(1).

113. 20 U.S.C. § 1415(k)(1)(C) & (E).

114. Tulman, supra note 39 at4-15.

115. 20 U.S.C. § 1415(k)(1)(E)(i); CDE State Complaint Decision 2010:516.

116. Email from Brad Bittan, Juvenile Law Attorney (May 22, 2008)(on file with author).

117. 20 U.S.C. § 1415(k)(1)(E)(i).

118. 20 U.S.C. § 1415(k)(1)(E)(i)(I); 34 C.F.R. § 300.530(e).

119. 20 U.S.C. § 1415(k)(1)(E)(i)(II).

120. 20 U.S.C. § 1415(k)(1)(E)(ii).

121. 34 C.F.R. § 300.530(e)(3).

122. Chapman, supra note 15 at 63.

123. Wright, supra note 1 at 119.

124. Unique Challenges, Hopeful Responses: A Handbook for Professionals Working With Youth With Disabilities in the Juvenile Justice System 52 (Pacer Center, Minneapolis, MN 1997).

125. Stephen Starin, Functional Behavioral Assessments: What, Why, When, Where, and Who? Available at.http://www.wrightslaw.com/info/discipl.fab.starin.htm (viewed Oct. 15, 2010).

126. 20 U.S.C. § 1415(k)(1)(F)(i) through (iii); 34 C.F.R. § 300.530(f).

127. 18 U.S.C. § 930(g)(2) (2008).

128. 18 U.S.C. § 1365(h)(3) (2002).

129. 20 U.S.C. § 1415(k)(1)(G) and (k)(7); 34 C.F.R. § 300.530(g) & (i).

130. 20 U.S.C. § 1415(k)(1)(G).

131. 20 U.S.C. § 1415(k)(2); 34 C.F.R. § 300.531.

132. 20 U.S.C. § 1415(k)(1)(D)(i); 34 C.F.R. § 300.530(b)(2) and (d).

133. 20 U.S.C. § 1415(k)(1)(D)(ii); 34 C.F.R. § 300.530(d)(1)(ii).

134. 20 U.S.C. § 1415(k)(3)(A).

135. 20 U.S.C. § 1415(k)(3)(A).

136. 20 U.S.C. § 1415(k)(4); 34 C.F.R. § 300.533.

137. 20 U.S.C. § 1415(k)(4).

138. Rule 6.02(7).

139. Chapman, supra note 15 at 63.

140. Herrick and Ward, supra note 65 at 5-3.

141. Id. at 5-12.

142. Chapman, supra note 15 at 83.

143. Id. at 83.

144. Id. at 83.

145. Tulman, supra note 39 at 4-22.

146. Id. at 4-21.

147. Wright, supra note 1 at 293.

148. Letter from the Secretary of Education, July 31, 2009, available at http://www2.ed.gov/policy/elsec/guid/secletter/090731.html (viewed Feb. 19, 2011).

149. Government Accountability Office, Seclusions and Restraints, May 19, 2009, available at http://www.gao.gov/new.items/d09719t.pdf (viewed Feb. 19, 2011).

150. 1 CCR 301-45, 2620-R-2.00(6).

151. 2620-R-2.00(6)a).

152. 2620-R-2.00(6)(b).

153. 2620-R-2.00(6)(c).

154. 2620-R-2.00(6)(d).

155. 2620-R-2.03.

156. 2620-R-2.04.

157. 2620-R-2.01(2).

158. 2620-R-2.01.

159. 2620-R-2.02(d).

160. 2620-R-2.02(a) and (b).

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