AT is Where it’s At: Obtaining Assistive Technology for Students with Disabilities

  Sometimes things worked out like they were supposed to and Sara was pleased. She had expected to have a fight on her hands as she went into Gracie’s individualized educational program (IEP) meeting. Gracie was six and because of multiple disabilities she wasn’t able to talk. But just because Gracie didn’t talk didn’t mean she couldn’t communicate. Gracie communicated by using a picture board. The picture board had been developed by a speech therapist who worked with Gracie when she was three and in preschool. The picture board had worked fairly well, but Gracie was now finishing first grade. Gracie’s skills had grown and the tasks she needed to perform had become more complex as she advanced in school. Sara wanted the school to look into providing a more sophisticated communication system for Gracie as she entered second grade. Sara was concerned the school staff would be reluctant to explore what might be a more costly communication system.

 But, to Sara’s surprise, the IEP team shared her concerns and recommended a complete evaluation of Gracie’s assistive technology (AT) needs, including assessing her communication system. The AT assessment was to be completed before the end of this school year and the team would meet again to review the results of the evaluation and plan services accordingly. As always, Sara still worried that things might not turn out as she hoped, but she knew that getting a good evaluation was the first step in getting appropriate services for Gracie. For right now she was confident the school was doing its best for Gracie.  

The IDEA and Assistive Technology 

  Under the Individuals with Disabilities Education Act (IDEA) schools are required to provide assistive technology services for children with disabilities. Assistive technology, or AT, helps individuals with disabilities do more things for themselves. Assistive technology devices can help a child perform tasks that the child would not otherwise be able to perform because the child has impairments. As in Gracie’s case, her picture board helps her communicate more independently even though she is unable to speak. A more sophisticated alternative augmentative communication system might help her to communicate and learn even more independently. The following are questions and answers about obtaining AT for children with disabilities. 

1.     What is assistive technology?

Under the IDEA, AT devices are items and pieces of equipment that increase, maintain, or improve functional capabilities of children with disabilities. AT services are broadly defined as any service that directly assists a child in the selection, acquisition, or use of an AT device. 

2.     What are examples of assistive technology?

Assistive technology can be anything that helps a child function more independently. It includes things such as pencil grips, reaching devices, adapted toys, tape recorders, calculators, standing boards, environmental control systems, adapted keyboards, modified desks and chairs, computers, computer software that provides screen reading, text reading, and screen magnification, and alternative augmentative communication systems. 

  Specific disability related AT examples include:

● providing a modified key board with enlarged keys for a child with limited fine motor skills;

● providing a modified desk or computer table to accommodate a student in a wheelchair;

● providing computer software that reads aloud the screen or magnifies the screen for students with visual impairments;

● providing software that reads aloud the text for students with learning disabilities that affect their reading skills;

● providing personal digital assistants (PDA) to assist in note taking and organizing for students with disabilities that affect time management, note taking, and short term memory;

● providing reaching devices to help a student get books from a book shelf;

● providing audio books for a student with a vision impairment or other disability that affects reading skills; and

● providing a device that amplifies speech for a student with a hearing impairment.   

3.     What about cochlear implants and other devices that are surgically implanted, are these devices considered AT?

  No, in 2004 the IDEA was amended to clarify that devices that are implanted in children surgically, such as cochlear implants for children with hearing impairments, are not AT devices that schools must provide.  

4.     Is AT always expensive?

  No, AT devices range from inexpensive, low tech, items such as pencil grips, clip boards, audio books, and tape recorders, to more costly, higher tech devices such as computers and speech synthesizers. AT can be purchased, or it can be homemade. For example, in the film The Right Stuff, because Chuck Yeager has broken ribs he uses a sawed off broom stick to help him close the hatch to his plane before flying off and breaking the sound barrier. Homemade AT. 

5.     Who pays for the AT that a child needs?

If the student needs the AT in order to receive an appropriate education, then the AT should be written into the IEP and the public school system must make sure the AT is provided at no cost to the child’s parents.  

6.     What’s the first step in obtaining AT?

A good evaluation is the key to obtaining any service for a child with a disability. AT is no exception. Evaluating a child’s needs, including doing a functional evaluation in the child’s customary environment, is included as an AT service. As in Gracie’s situation, the IEP team has agreed that Gracie needs an AT evaluation. Once the evaluation is completed the IEP team will meet to design a program to provide the AT that Gracie needs to receive an appropriate education. 

7.     Are there specific requirements regarding AT in the IEP process?

Under the IDEA, AT is a “special factor” to be considered in the IEP process. This means that the IEP team must specifically consider whether a student with disabilities needs assistive technology. If the IEP team believes the student may need AT, then the team should recommend the student’s AT needs be further evaluated. If the IEP team then recommends that a student needs an AT device, that recommendation must be specifically written into the IEP. The IEP must also include the projected date when the AT service or device will be provided, and the duration of time, where, and how often will be provided.  

8.     What if the school provides AT, like a lap top computer, can a child use it at home as well?

The IEP team determines whether the child needs to use the AT device at home in order to receive an appropriate public education. If the IEP team recommends home use, then the child must be allowed to take the AT home. 9.     What happens if the child outgrows the device or it is damaged at school?The IDEA includes as an AT service maintaining, repairing, or replacing the AT device. So, if it is damaged through normal use, or requires future modification, the school must make sure that the repair or replacement is at no cost to the parent.  

10. Some of these devices, like alternative augmentative communication systems, seem complicated. What if the student or the student’s family doesn’t know how to use it?

 Also included as AT services are training and technical assistance in using the AT device for the student. If necessary, the student’s family and professionals such as educators, rehabilitation personnel, and employers may also receive training and technical assistance to learn how to use the AT device.  

11. Where can I get more information about AT?

There is a National Assistive Technology Assistance Partnership that has links to projects in every state that provide information and assistance in obtaining assistive technology.

  Assistive technology helps children with disabilities do more things for themselves and learn in inclusive settings. Parents and educators should make sure that IEP teams explore how assistive technology can help children with disabilities receive a free appropriate education.         

Working it: Vocational Rehabilitation Services for People with Disabilities

  In my previous post I briefly discussed vocational rehabilitation services for post secondary students with disabilities. In this post I’ll address what rehabilitation services are, who is eligible for them, and how to get them.  

 People with disabilities, advocates, and family members are generally familiar with Section 504 of the Rehabilitation Act of 1973 which prohibits discrimination against qualified persons with disabilities by programs that receive federal financial assistance. But there is another important section of the Rehabilitation Act, 29 USC 720, that establishes a system to help individuals with disabilities obtain employment. This legislation provides federal grants to help states provide vocational rehabilitation (VR) services to eligible individuals with disabilities. Each state and United States territory has a vocational rehabilitation agency responsible for providing vocational rehabilitation services to assist eligible individuals prepare for and engage in gainful and competitive employment. 

Who is eligible for VR services?

   To be eligible for vocational rehabilitation services an individual must:

(1)  have a physical or mental impairment that is a barrier to employment;

(2)  need VR services to prepare for, secure, retain, or regain employment; and

(3)  be able to benefit from those VR services. 

    In some cases, not every individual who is eligible will be able to receive VR services. The legislation requires vocational rehabilitation agencies, when resources are limited, to give priority to serving individuals with the most significant disabilities. You should contact your state vocational rehabilitation agency for information regarding how services are prioritized in your state or territory. 

 What are vocational rehabilitation services?  

 Vocational rehabilitation agencies can offer a wide array of services to assist individuals with disabilities obtain, retain, or regain employment. Services are determined by the vocational needs of the individual and are provided to assist the individual to achieve an employment outcome. Examples of these services include:  

         ● an assessment to determine eligibility for VR services and VR needs; 

         ● vocational counseling, guidance, and referral services;

         ● vocational training including on-the-job and other training and including books,       tools and other materials;

         ● maintenance: monetary support for costs like food, shelter, and clothing that are more than normal and needed due to the individual’s participation in VR services; 

         ● transportation that is connected to rendering other VR services;   

         ● vocational rehabilitation services to family members if the services are necessary to enable the individual to achieve an employment outcome;

         ● interpreter services, including sign language or oral interpreting services to individuals who are deaf or hard of hearing and tactile interpreting services for individuals who are deaf-blind;

        ● reader services, rehabilitation teaching services, and orientation and mobility services for individuals who are blind;

       ● job related services including job search and placement assistance, job retention services, and follow-up and follow-along services;

       ● supported employment services;

       ● personal assistance services to assist with daily living activities;

       ● transition services to assist students with disabilities to transition from school to work; and

       ● rehabilitation technology: rehabilitation engineering and assistive technology devices and services.  

 While extensive, this list of services is not exhaustive. Remember that in order to receive any or all of these services, the need for the service must be linked to a vocational outcome. 

How does a person with a disability receive VR services? 

  Individuals apply for services through VR offices within their state vocational rehabilitation agency. A VR counselor will be assigned to assess and determine eligibility. Eligibility must be determined within 60 days, unless there are exceptional and unforeseen circumstances or more time is needed to adequately assess the individual’s abilities, capabilities and capacity to perform in work situations.   

 If eligible, the individual will meet with their VR counselor to develop an Individualized Plan for Employment (IPE). It may be necessary to do additional assessments to determine an appropriate employment outcome for the individual and the services needed to meet that goal. The IPE will document the employment outcome and the services, responsibilities, and timelines to achieve that outcome. The IPE will document both the responsibilities of the VR agency and the responsibilities of the individual with a disability.  

What if the individual disagrees with the counselor regarding the IPE or encounters other problems in obtaining VR services?   

Individuals have the right to appeal if they disagree with determinations made by their VR agency. The appeal procedures include the right to mediation and the right to an impartial due process hearing.  

  Mediation is a process that uses a person (mediator) who is trained in effective mediation techniques to help the individual and the VR agency resolve the disagreement. The mediator does not impose a decision on the individual or the agency, but helps the two sides come to a mutual agreement on a resolution. Mediation is voluntary and the mediator must be impartial.  

  On the other hand, an impartial hearing is a process that uses a hearing officer to decide the dispute. At the hearing, the hearing officer will listen to evidence from both sides and make a decision. The agency and the individual must follow the hearing officer’s decision unless they appeal.  

  Each state and territory has a Client Assistance Program (CAP) that is available to assist individuals with disabilities in navigating the vocational rehabilitation process and providing assistance in the appeal process. Individuals should contact the Client Assistance Program within their state or territory for that assistance.  

 

Supporting Students with Disabilities After High School: Providing Academic Adjustments and Auxiliary Aids and Services in Postsecondary Schools

  While in preschool, elementary and high school children with disabilities are entitled to a free appropriate public education under the Individuals with Disabilities Education Act (IDEA)  and Section 504. The public schools have an affirmative obligation during those school years to assess and identify children with disabilities and develop a plan to meet their individual educational needs. But what is the obligation of colleges and other post secondary education programs to students with disabilities after the high school years? Title II of the Americans with Disabilities Act (ADA) and Section 504 (for programs receiving federal support) require that post secondary schools (including postsecondary vocational programs) ensure that qualified students with disabilities have an equal opportunity to participate in the postsecondary school’s program. To that end, postsecondary schools are required to make appropriate academic adjustments and to provide qualified students with disabilities with the auxiliary aids and services needed to ensure equal access to the school program. 

Who are qualified students with disabilities?   

   Postsecondary schools are not obligated to admit persons with disabilities to their programs who do not meet the requirements for admission. A student is “qualified” if the student meets the academic and technical standards required for admission to the school program. A student who is qualified and has a disability cannot be discriminated against based on their disability. A student has a disability if the student has a physical or mental impairment that substantially limits a major life activity. 

What are the responsibilities of the postsecondary school?  

   The postsecondary school cannot discriminate on the basis of a student’s disability. This means the school needs to take steps to make sure the student is not denied the benefits of the school program, excluded from participating in the school program, or otherwise discriminated against. The nondiscrimination protection of the ADA and 504 apply to all aspects of the postsecondary program including financial aid, housing, nonacademic services, and academic course related services. Included in nonacademic services are physical education, club and intramural athletics, social organizations like fraternities and sororities, and counseling and placement services.  Regarding the academic program, the school must make modifications to its academic requirements if those requirements have the effect of discriminating based on a student’s disability.

   Examples of these modifications are changes in the length of time permitted for completing a degree, extended time for testing, arranging for priority registration, reducing course load, substituting specific courses needed to complete a degree, and adapting how specific courses are conducted. But the school is not required to make academic adjustments that lower or substantially modify essential academic requirements. For example, a student may be entitled to extra time on a test, but not a change or lowering of the substantive content of the test. Finally, the school must also provide appropriate auxiliary aids and services to afford the student equal access to the school program. 

What are auxiliary aids and services?   

   Examples of auxiliary aids include: taped texts, note takers, interpreters, readers, videotext displays, television enlargers, talking calculators, electronic readers, Braille, calculators, telephone handset amplifiers, closed captioned decoders, specialized gym equipment, calculators or keyboards with large buttons, reaching devices for library use, and assistive listening devices. 

  The purpose of providing the auxiliary aid is to ensure equal access and participation for the student with a disability. Thus, the auxiliary aid needs to be effective. Not all students with similar disabilities will benefit from the same auxiliary aid. So, in order for the auxiliary aid to be effective, it should be selected individually and the student should participate in the selection.

 What about the cost of the auxiliary aid? Is the postsecondary school’s obligation unlimited?  

           If the student needs the aid to have equal access to the academic program, the school must provide the aid at no cost to the student, unless providing the aid would cause an undue burden on the school. Undue burden means that in light of the school’s overall size and budget, providing the auxiliary aid or modification would be significantly difficult or expensive. Given that the cost of the aid is compared to the overall budget of the school, in most cases, providing the aid will not be considered an undue burden on the school. 

What about attendant care and other personal aids and services?   

  Postsecondary schools and programs are not required to provide aids and services to students that are personal. Personal aids and services include help in bathing, dressing, or other personnel care. Thus, postsecondary schools are not required to provide personal attendants or individually prescribed devices, such as eye glasses. A service may be personal in one context, but required in another. For example, the school may be required to provide a “reader” to a student during classroom instruction, but would not be required to provide the reader for personal use or during individual study time. 

What are the student’s responsibilities?

  A student with a disability who desires a modification in the postsecondary school’s requirements or desires an auxiliary aid must notify the school of the nature of the disability and help identify the appropriate auxiliary aids and academic adjustments. While in elementary and high school, the public schools are required to assess and identify students with disabilities and to determine appropriate aids and services for the student. But after high school the student takes on that responsibility. The student should inform the appropriate office or individual at the school that the student has a disability and needs a modification to the program or an auxiliary aid or service. Most postsecondary schools will have an ADA or 504 Coordinator who is responsible for assisting students with disabilities and many schools have a specific office of disability services. The student is responsible for finding out the school’s process for granting an academic adjustment or providing auxiliary aids and services and following through on that process.  

  As part of the process, the school can require that the student provide documentation of the disability and support for needing the auxiliary aid or academic adjustment. If the student received special education services and had an IEP while in high school, or the student had a 504 plan, the student’s IEP or 504 plan may provide adequate documentation. Specifically, the IDEA requires that students in special education are provided a summary of performance if the student graduates with a regular diploma or ages out of special education services. The summary of performance includes recommendations on how to help the student meet postsecondary goals, so it might be a useful tool  for documenting the student’s need for academic adjustments or auxiliary aids after high school. Postsecondary education, however, has different demands than high school, and additional documentation or assessments may be needed. The postsecondary school is not required to pay for those additional assessments.  

   If the student’s disability is a barrier to the student becoming employed, the student might be eligible for vocational rehabilitation services from the state vocational rehabilitation agency. In that case, the state vocational rehabilitation agency may pay for the cost of evaluation. Vocational rehabilitation agencies are also a resource for other services to support individuals with disabilities in obtaining employment, including support in postsecondary educational programs. It might, therefore, be very useful for students with disabilities to contact their state vocational rehabilitation agency for assistance. 

What does the student do if the school denies the request for a modification or provision of an auxiliary aid? 

  As noted, most postsecondary schools have a 504/ADA coordinator and all schools are required to have grievance procedures. The student with a disability might start by contacting the 504/ADA Coordinator and/or getting information on the school’s grievance process. Students can also file a complaint with the Office for Civil Rights within the U. S. Department of Education. The student might choose to go through the school’s internal grievance process before filing a complaint with the Office for Civil Rights, but the student has a right to file the complaint without first using the grievance process or waiting for its completion. Individuals with disabilities also have a right to file a lawsuit for violations of the ADA and 504.  *                  

Supreme Court Denies Cert in “Frank G. v. Board of Education of Hyde Park” Tuition Reimbursement Case

  As discussed in my previous post, last week the Supreme Court affirmed the Second Circuit Court of Appeals decision in Board of Education of the City of New York v Tom F. and Gilbert F. . In Tom F. and Gilbert F. the Second Circuit Court of Appeals had reversed a district court decision denying tuition reimbursment for a unilateral placement of a child in a private school, because the child had not first received special education services from the public school. The Second Circuit had made a decision in a similar case Frank G. v. Board of Education of Hyde Park,  holding that the IDEA did not require parents to first place their child in an inappropriate public school placement in order to be reimbursed for private school tuition. The Hyde Park Board of Education had requested that the Supreme Court hear its appeal of that decision.

  Although the Supreme Court affirmed the Second Circuit in Tom F. and Gilbert F.  its decision was by a four to four vote ( Justice Kennedy recused himself), so it did not set a precedent on whether a student must first receive public school special education services in order for parents to be reimbursed for private school tuition. It was possible that if the Court agreed to hear the Frank  G. appeal and issued a majority opinion, this issue might be clarified through a decision that set precedent. That is not the case, however, as the Supreme Court has now denied certiorari in Frank G. and will not hear that appeal.

  So, while the Second Circuit decision in Tom F. and Gilbert F. has been affirmed and its decision in Frank G. will stand, we still do not have a decision that sets precedent on this issue outside of the jurisdiction of the Second Circuit Court of Appeals (Connecticut, New York, and Vermont). It is possible that if another circuit decides this issue it could come back to the Supreme Court later. 

Supreme Court Affirms Tuition Reimbursement for Private School Placement

  The Supreme Court has affirmed the decision of the Second Circuit Court of Appeals in Board of Education of the City of New York v. Tom F. and Gilbert F.  This case involves a family that  placed  their son Gilbert, who has a learning disability, in a private school program because the school had not offered an appropriate program. At that time, the school district agreed to pay the tuition of the private placement and did so for the 1997-98 and 1998-99 school years. Thus, the school district paid for the private school placement and  Gilbert never physically attended public school. The school district then proposed for the 1999-2000 school year that Gilbert attend public school and refused to continue paying the private school tuition. Still believing the public school placement to be inappropriate, the family requested a due process hearing.

  The hearing officer agreed with the family that the public school placement was inappropriate and the school district appealed to a state level review officer who also agreed with the family. The school district then filed in federal district court.

  The district court ruled for the school district saying that since Gilbert had never received special education services from the school district the IDEA did not require the school district to pay for his private placement. The parents appealed to the Court of Appeals.

  In the mean time, the Second Circuit Court of Appeals had decided a similar case Frank G. v Board of Education of Hyde Park, holding that the IDEA did not require parents to first place their child in an inappropriate public school placement in order to be reimbursed for private school tuitiion. So, the Second Circuit vacated the district court decision regarding Gilberts’ placement and remanded the case back to the district court to reconsider based on the Court of Appeals decision in the Hyde Park case. The school district appealed to the Supreme Court.

  The Supreme Court  affirmed the Court of Appeals decision requiring the school district to pay tuition for Gilbert’s private school placement. But this affirmation was by a four to four vote because Justice Kennedy did not take part in the decision. As a result the decision affirms the Second Circuit Court of Appeals decision, but does not set precedent on this issue. The other second circuit case Frank G. v. Board of Education of Hyde Park  has also been appealed to the Supreme Court, but has not yet been accepted by the Court. If it is, and if Justice Kenndy participates in the decision, we should get a majority decision on this issue.

  The IDEA  and its regulations requires that  if parents can establish that (1) the public school placement being offered is inappropriate and (2) the private program where they have placed their child is appropriate, the parents may be entitled to tuition reimbursement.  But must parents first place the child in a public school setting, even if it is inappropriate, to be reimbursed for the costs of the private placement? By affirming this decision the Supreme Court, has not said that they must, but we should monitor to see what happens in the Frank G v. Board of Education of Hyde Park case.

For a better understanding of the legal arguements it might be useful to read the parent’s appeal brief and the school district’s brief.

Getting the Most Out of the Least Restrictive Environment

  Brenda tossed her parent folder on to the kitchen table and then slid into the sofa, pleased but exhausted. She had just returned from “Back to School Night” at her sons’ middle school. This was the first year that Jeremy, her 11 year old, was attending his neighborhood school. Jeremy had autism and had not attended elementary school with his older brother, Sam, but this year both her boys would go to the same school.

“Back to School Night” was the night before the first day of school and gave parents and kids an opportunity to visit each class and to meet the new teachers. Brenda had already met most of Jeremy’s new middle school teachers because the teachers had attended his IEP (Individualized Educational Program) meeting last spring to help plan for his move to middle school.

  In fact, the middle school general education teachers had played a key role in including Jeremy in their classes at the middle school.  Brenda had always wanted Jeremy and Sam to attend the same school. She knew that the Individuals with Disabilities Education Act (IDEA) required that children with disabilities both go to school with children without disabilities and attend their neighborhood school, if possible. She liked the program provided at the elementary school where the school district had centralized services for elementary aged students with autism. Though it required some support services, Brenda had successfully pushed for Jeremy to be included in regular classes and activities with students without disabilities at the elementary school.

But, she didn’t like that the program wasn’t in their neighborhood school. Brenda had planned that at Jeremy’s IEP meeting last spring she would push for him to go to the neighborhood middle school with Sam. To Brenda’s pleasant surprise the middle school principle had encouraged the middle school teachers to attend Jeremy’s spring IEP meeting. So, at “Back to School Night” Brenda and Jeremy already knew most of his new teachers. Brenda, still on the sofa, crossed her fingers and thought “So far, so good.”       

  Many families struggle to make sure their children who have disabilities go to school along side of children without disabilities. The following are seven tips for using the IEP process to get the most out of the least restrictive environment. 

1.     Make sure the IEP team follows the appropriate process in determining the least restrictive environment for your child. The IEP team arrives at the least restrictive environment, step by step. Legally, the term “least restrictive environment” means that to the maximum extent appropriate children with disabilities are educated with children without disabilities. It also means that before deciding to remove a child with a disability from regular education and placing the child in a special class or schooling him separately, the IEP team must consider using supplementary aids and services. Thus, determining the least restrictive environment for a child with a disability is a process. The IEP team starts from the premise that the student will attend a regular classroom. If there is a question whether the student’s education can be achieved satisfactorily in the regular education classroom, then the first step the IEP team takes is to consider providing supplementary aids and services to support the student and teachers in the regular classroom. 

2.     Make sure the IEP team considers providing supplementary aids and services, before removing your child from the regular classroom. Supplementary aids and services include teacher training and support, itinerant instruction, modified curriculum, paraprofessional support, and assistive technology. These are supports that are provided in regular classrooms and other education-related settings, including extracurricular and nonacademic activities, to enable children with disabilities to learn successfully with children without disabilities. These supports can be provided to help the regular education teacher as well as the child. 

3.     Make sure a regular education teacher is a member of the IEP team. The IDEA (Individuals with Disabilities Education Act) requires that not less than one of the child’s regular education teachers be a member of the IEP team if the child is or may be participating in regular education. The regular education teacher is a key team member for two reasons. First, the regular education teacher should understand why the child needs certain services, accommodations, aids, and supports. For example, if the regular education teacher understands why a student needs a modified curriculum or needs a note taker, the teacher is more likely to make sure the service or accommodation is provided. Second, the regular education teacher needs to listen and contribute to discussions determining supplementary aids and services, program modifications and other support for school staff. Moreover the regular education teacher should be involved in discussing behavioral interventions and supports for the child. It would be difficult for the IEP team to determine what support a regular teacher needed without that teacher’s input. 

 4.     If necessary, include more than one regular education teacher on the IEP team. Middle school and high school students often have more than one teacher. The IDEA requires that not less than one of the child’s regular education teachers be included on the team but, in some circumstances, it may be important that more than one regular education teacher participate in the meeting. For example, if your child has a behavior intervention plan, it is important that all of your child’s teachers are aware of that plan and how to implement it. 

 5.     Make sure that the IEP team discusses including your child in nonacademic and extracurricular activities with children without disabilities. These activities include meals, recess, counseling services, athletics, transportation, health services, recreational activities, and special interest groups and clubs that are school-sponsored. As it does for academic services, the IDEA requires that supplementary aids or services be provided to support your child’s participation in nonacademic and extracurricular activities with children without disabilities.  

 6.     Don’t forget field trips, assemblies and other similar activities! Sometimes children with disabilities are left out of field trips and assemblies because some school staff, inexperienced in working with children with disabilities, are concerned with the student’s behavior. If this is a concern, the IEP team should discuss how supplementary aids and services can support the student and teacher so that the child can participate in the field trip or assembly with students without disabilities. Again, if the child’s regular education teachers are members of the IEP team, they can participate in discussing the supports they or the student may need to successfully participate in these activities. 

7.     Make sure that the IEP team adequately considers placing your child in the neighborhood school. The IDEA requires that children with disabilities attend the school they would attend if they did not have a disability. This is true unless the IEP requires some other arrangement. So, the IEP team should place a child in the neighborhood school unless the team determines that some another arrangement is educationally required. If another arrangement is needed, then the IDEA requires that the child attend school as close as possible to the child’s home.  

  Finally, remember that determining the least restrictive environment for a child is a team process reached step-by-step. Start with the assumption that the child will go to the neighborhood school and be in the regular classroom. If supports are needed to make that setting successful, then the team discusses those supports, proceeding one step at a time.

Discipline and Disability: Determining When a Child’s Misbehavior in School is Related to Their Disability

  As a parent, Maria had a long rope but she was quickly nearing the end of it. The principal had just called and asked her to come to school and pick up her son, Jeremy, because the teacher said he was “out of control.” Jeremy hadn’t finished his work during class time and when the teacher told him he had to stay in during recess he had thrown his book at the chalkboard. Maria knew Jeremy could sometimes be a handful. He was in special education and had some emotional/behavioral issues, but this was the fourth time this fall that she’d been called and Jeremy had now missed ten days of school. This time the principal said he was suspended for another ten days and might be expelled or moved to a different school because his behavior was so disruptive.  

  While Maria knew that Jeremy’s behavior was not acceptable, she believed it was related to his disability, and that there might be better ways to deal with it than withholding recess. Jeremy struggled to sit still through class and recess was a much-needed break. It didn’t seem fair that he might be expelled for “misbehavior” that was not Jeremy’s fault. Hadn’t she heard that students with disabilities could not be punished for behavior that was a manifestation of their disability? Didn’t the law require that, as a child with a disability, Jeremy was entitled to appropriate educational services?  

  The Individuals with Disabilities Education Act (IDEA) provides that all children with disabilities have a right to a free appropriate public education, including children who are suspended or expelled. The IDEA has specific procedures for school administrators to follow when disciplining children with disabilities. These procedures balance the need to keep schools safe with the right of children with disabilities to receive a free appropriate public education. There is a process to determine if a student’s misconduct is a manifestation of the student’s disability, and prevents children from being punished for “misbehavior” that is related to the child’s disability. Unfortunately, the IDEA’s procedures can be confusing. Here are some questions and answers regarding the manifestation determination process that should make the process clearer.  

1.      Who makes the Manifestation Determination?The manifestation determination is made by a group that includes the child’s parent and the relevant members of the child’s Individualized Educational Program (IEP) team. The parent and school administrators decide which IEP team members will be included in the meeting. 

 2.      When must a Manifestation Determination be made?Whenever the school decides to remove or suspend a student with a disability from the student’s educational placement for more than 10 school days. 

3.      How does the group decide if the student’s misconduct is a manifestation of  the student’s disability? First, the group will review all of the relevant information in the student’s file including any information included from the IEP, teacher observations, and information provided by the student’s parents. Based on that review, the group will determine whether:

(1)  The student’s misconduct was caused by or was directly or substantially related to the student’s disability; or(2)  The misconduct was the direct result of the school district not implementing the student’s IEP. If the group determines that the misconduct was related to the student’s disability or was the direct result of the IEP not being implemented, then the team will determine that the misconduct was a manifestation of the student’s disability. 

4.      If the student knows right from wrong and understands it is wrong to violate the student code of conduct, doesn’t that mean their misconduct was not a manifestation of their disability?  No, the student may know their behavior is wrong but the misconduct might still be directly related to their disability. For example, the student’s disability may limit their ability to control the behavior. Or, perhaps IEP services, such as counseling, were never provided, causing the student’s behavior to escalate beyond the student’s control. 

 5.    What happens if the student’s misconduct is determined to be a manifestation of the student’s disability? The student’s IEP team will meet and unless there are special circumstances or the IEP team changes the student’s educational placement, the student will return to the school program they were in before the suspension. The IEP team will also conduct a Functional Behavioral Assessment and will implement a behavior intervention plan for the student. A Functional Behavior Assessment gathers information about the student’s behavior to determine what function the student’s behavior serves for the student. The behavior intervention plan is the plan to provide support to the student to intervene with the behavior.  

6.    What are special circumstancesIn disciplinary situations involving possession of weapons, illegal drugs, or the student has caused a serious injury; the school may remove the student for up to 45 school days, even if the misconduct is a manifestation of the student’s disability. The student must receive appropriate educational services after the first 10 school days that the student is removed. 

7.      What if the group determines that the misconduct is NOT a manifestation of the student’s disability?  If the students misconduct is not a manifestation of the student’s disability then the student may be disciplined the same as a student without a disability. But if expelled, the student is still entitled to receive a free appropriate public education. In many cases the student’s behavior is determined to be a manifestation of the student’s disability. But, parents have the right to appeal a decision that their child’s behavior is not related to their child’s disability. Hearings to resolve disagreements in the disciplinary process are expedited. That means the hearing must be held within 20 school days after it is requested and the decision must be made within 10 school days after the hearing is completed. 

  Some school administrators pride themselves on a no nonsense zero tolerance approach to discipline in their schools. In such an environment normal childhood mischief can be mistaken for serious misconduct. For children with disabilities, disability related behavior can be confused with misconduct requiring discipline. Being aware and making sure your child’s school is aware of the discipline procedures under the IDEA will ensure your child’s success and happiness in their education.  

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