Maura McInerney, Esq. Education Law Center

Maura McInerney, Esq. Education Law Center www.elc-pa.org

Your Child’s Rights:

Legal Rights of Children with Disabilities Who Are Home Schooled

or Placed by Parents in Charter, Cyber Charter,

Parochial and Private Schools

School-Age Children With Disabilities Educated in Non-traditional Settings Charter Schools, Cyber Charter Schools = Public

School Home Schooled Placed by Parent in Parochial/Private SchoolIssues Considered:

Admissions/Enrollment Right To Request Initial Evaluation & Content of Eval. Right to a Free Appropriate Public Education Type of Plan or Services Required to be Provided Right to Inclusion Protection in School Discipline & Transportation Dispute Resolution

TODAY’S TRAINING

Education Law Center, PA 2

A charter school is an independent public school established and operated under a charter from a local school board.

22 Pa. Code 1703-A (Emphasis added)

CHARTER & CYBER CHARTER SCHOOLS


Charter schools are created and guided by PA’s Charter School Law, 24 P.S.§17-1701-A et seq. (1997)The legislative intent of the law was to:

Improve learningInnovate teaching methodsCreate professional opportunities and responsibilitiesProvide expanded options for parents in public educationIncrease accountability

Charter schools cannot:Unlawfully discriminate in admissions, hiring or operationBe sectarian in any operationsProvide religious instruction or display religious objects or

symbols on school premisesAdvocate unlawful behavior

PENNSYLVANIA’S CHARTER LAW


42 states and the District of Columbia have laws authorizing charter schools.

Only Alabama, Kentucky, Montana, Nebraska, North Dakota, South Dakota, Vermont, and West Virginia have no charter school law.

THE NATIONAL LANDSCAPE

Source: http://dashboard.publiccharters.org/dashboard/students/page/age/year/2012Education Law Center, PA 5

WHERE ARE THE CHARTER SCHOOLS

IN PENNSYLVANIA?

l 88 chartersl 20 chartersl 10 chartersl 5-9 chartersl 1-4 chartersl 0 charters

Source: Pennsylvania Department of Education Charter School Directory. Map created using http://diymaps.net/pa.htm


108,942 students in Pennsylvania were enrolled in charter schools in October 2012.

Of those students, approximately 34,000 were in cyber charter programs.

WHO IS ATTENDING CHARTER SCHOOLS IN PA?

Allegheny County: 5,198Chester County: 4,726

Philadelphia County: 47,288

York County: 2,204

Rest of the

State: 13,409

Number of Students Enrolled in Brick-and-Mortar Charter

Schools by County


STUDENTS WITH DISABILITIES ENROLLED IN CHARTER SCHOOLS

County District Charter% Special Education

% Both Special Education and SLD/SLI

% Special Education

% Both Special Education and SLD/SLI

Philadelphia 14% 65% 12% 86%Chester 15% 67% 14% 68%Beaver 14% 68% 10% 66%Allegheny 16% 60% 18% 68%Montgomery 16% 68% 13% 63%Cumberland 15% 61% 17% 65%Delaware 18% 70% 25% 91%

Pennsylvania Charter and School District Special Education Enrollments (2009)

Data from: Bruce Baker, Parsing Charter School Disability Enrollments in PA and NJ, School Finance 101. Aug. 23, 2012. http://schoolfinance101.wordpress.com/2012/08/23/parsing-charter-school-disability-enrollments-in-pa-and-nj/


An independent public school established and operated under a charter from the PDE and in which the school uses technology in order to provide a significant portion of its curriculum and deliver a significant portion of instruction to its students online or through other electronic means. A cyber charter school must be organized as a public, nonprofit corporation.

WHAT IS A CYBER CHARTER SCHOOL?


Typically, students enrolled in a cyber charter school are educated in their homes with a computer provided by the school.

Any student in Pennsylvania is eligible to attend a cyber charter school.

The charter is issued by PDE, rather than a local school board.

CYBER CHARTER SCHOOLS


There are currently 16 cyber charter schools in Pennsylvania.

In 2012-2013, students from 498 school districts were enrolled in cyber charter programs.

34,694 students attended PA cyber charter schools in 2012-2013 Just over 5,000 of those cyber charter students were students with disabilities

WHO IS ATTENDING CYBER CHARTER SCHOOLS IN PA?


STUDENTS WITH DISABILITIESAND CHARTER SCHOOLS

Charter schools in Pennsylvania are educating an equitable share of children with disabilities overall

But most students with disabilities in charter schools have either speech/language impairment (SLI) or a specific learning disability (SLD) (more “mild” disabilities).

Charters serve a very small number of students with complex support needs


Charter schools’ legal mandates require all charter schools to: Comply with all federal laws, policies and case law relevant to

public schools Comply with the Charter School Law, and other PA laws and

policies specific to charter schools Comply with all other state laws and policies applicable to charter

schools Set forth in the charter meaningful strategies for parent and

community involvement and accountability Provide a minimum of 180 days of instruction per year Participate in the PA State Assessment system in the manner in

which the school district where the charter is located is scheduled to participate

LEGAL REQUIREMENTS FOR PA CHARTER SCHOOLS


BARRIERS FOR STUDENTS WITH DISABILITIES

Some charter schools may discourage parents of students with disabilities from applying.

Some charters may suggest that they are not equipped to meet the needs of students with disabilities, leading parents to be concerned the schools are not able to meet their children’s needs.

All charter schools are schools of choice; parents may choose to withdraw their child if their special education needs are not being met.

Some charter schools enforce strict discipline codes, and students with disabilities may be more likely to be suspended or expelled.


Admissions Applications and documents Criteria Concentration and grade levels Timelines and deadlines

Provision of special education supports and services Counseling regarding “availability” Costs and expenses

Least restrictive environment (LRE) mandate

BARRIERS AND OBSTACLESFOR STUDENTS WITH DISABILITIES


Children are sent to cybers when the district fails to meet or ignores the needs of a student’s disability

Quality of education Currently, there is no high quality research to prove that

full-time virtual school is an adequate replacement for traditional face-to-face teaching (Note: Cyber “AYP” rates)

The students who attend cyber schools for a short period of time and return to their neighborhood schools are often further behind other students

There is currently only anecdotal evidence to support the idea that cyber charter schools are appropriate for at-risk students

EMERGING ISSUES REGARDING CYBERS


Children may be sent to “cyber programs” within a school district.

This may be offered as an educational placement or in response to school discipline issues.

These programs are NOT independently monitored or reviewed nor is disaggregated data collected regarding student achievement.

Raises “change in placement” issuesQuality of education – same concerns

EMERGING ISSUES REGARDING CYBERS


Charter schools cannot discriminate against a student for admission based on intellectual ability or disability.

Students with disabilities enrolled in charter schools are entitled to all of the same rights as non-disabled peers.

Students with disabilities retain ALL federal rights and protections guaranteed by federal disability laws (e.g., IDEA, 504 and ADA) & certain rights under Chapter 14.

LEGAL PROTECTIONS FOR STUDENTS WITH DISABILITIES


Charter schools are subject to all federal education and civil rights laws, and relevant federal case law, including:

Individuals with Disabilities Education Act (IDEA) Section 504 of the Rehabilitation Act of 1973

(504) Title VI of the Civil Rights Act of 1964 (Title 6) Title IX of the Education Amendments of 1972

(Title 9) McKinney-Vento Homeless Education Act

(McKinney-Vento) No Child Left Behind Family Educational Rights and Privacy Act (FERPA)

FEDERAL LAWS APPLY


All students with disabilities enrolled in a charter school are entitled to all the rights and protections of the IDEA.

These include: Free multidisciplinary evaluations Eligibility determinations Individualized program development (IEP) Inclusion in the “least restrictive

environment” (LRE) Procedural safeguards and due process

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)


Chapter 14 of state public education regulations, which details public schools’ legal responsibilities to students with disabilities, does not apply to charter schools.

There is a special set of regulations in Chapter 711 which deals specifically with charter schools and students with disabilities. (22 Pa. Code§711) Chapter 711: Specifies how Pennsylvania charter schools will comply with

federal disability laws, including the IDEA and Section 504 Mostly incorporates federal regulations into state regulations Also requires that all special education teachers be state

certified, notwithstanding the charter school law, which requires that only 75% of charter school teachers be state certified

PA REGULATIONS FOR CHARTERSAND STUDENTS WITH DISABILITIES


Charter schools must comply with Section 504.

Charter schools are prohibited from discriminating against students on the basis of disability.

Students with disabilities may not be excluded from participation in some activity OR treated differently due to disability.

504 PROTECTIONS


All resident students in Pennsylvania are eligible to attend a charter school

Charters cannot discriminate in admissions policies or practices on the basis of: Intellectual ability Athletic ability Measures of achievement or aptitude Status as a person with a disability Proficiency in English Any other basis that would be illegal if used by a school district

CHARTER SCHOOL ADMISSIONS


Pennsylvania law mandates that charter schools, like school districts, immediately enroll eligible students upon the presentation of four documents (four in the door):

1. Proof of the child’s age2. Proof of immunizations required by law3. Proof of residency4. Statement of parent regarding any current

school exclusion for weapons offense

ENROLLMENT LAWS APPLICABLE TO CHARTER SCHOOLS


The school’s charter must set forth its admission criteria

Charter schools can limit admission:To a particular grade levelTo an area of concentration (e.g. science or the arts)

By establishing reasonable criteria to evaluate prospective students re area of concentration.

ADMISSIONS (CONT.)


Charter schools can admit with first preference: Students who reside in the district where the charter

school is authorized Children whose parents who have been actively engaged

in development of the school Siblings of enrolled students

Otherwise, charter schools must admit students selected at random from a pool of candidates who meet the charters’ legally established criteria (e.g., lottery)

Charters can enroll, if space permits, nonresident students

WHEN THERE ARE MORE APPLICANTS THAN SPACES


Charter schools are subject to all federal education and civil rights laws, and relevant federal case law, including:

Individuals with Disabilities Education Act (IDEA) Section 504 of the Rehabilitation Act of 1973

(504) Title VI of the Civil Rights Act of 1964 (Title 6) Title IX of the Education Amendments of 1972

(Title 9) McKinney-Vento Homeless Education Act

(McKinney-Vento) No Child Left Behind Family Educational Rights and Privacy Act (FERPA)

FEDERAL LAWS APPLY


All students with disabilities enrolled in a charter school are entitled to all the rights and protections of the IDEA.

These include: Free multidisciplinary evaluations Eligibility determinations Individualized program development (IEP) Inclusion in the “least restrictive

environment” (LRE) Procedural safeguards and due process

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)


Chapter 14 of state public education regulations, which details public schools’ legal responsibilities to students with disabilities, does not apply to charter schools.

There is a special set of regulations in Chapter 711 which deals specifically with charter schools and students with disabilities. (22 Pa. Code§711) Chapter 711: Specifies how Pennsylvania charter schools will comply with

federal disability laws, including the IDEA and Section 504 Mostly incorporates federal regulations into state regulations Also requires that all special education teachers be state

certified, notwithstanding the charter school law, which requires that only 75% of charter school teachers be state certified

PA REGULATIONS FOR CHARTERSAND STUDENTS WITH DISABILITIES


Charters schools are responsible for conducting evaluations to determine if an enrolled student is eligible for special education supports and services.

When a parent requests an evaluation of a student enrolled in a charter school, the charter school must conduct the evaluation and give parents a written Evaluation Report within 60 calendar days (excluding the summer months) from the date the parent agrees to an evaluation in writing.

Charter schools must have a system for screening children to determine whether they should be referred for a special education evaluation.

CHARTER SCHOOLS:RIGHT TO AN EVALUATION


Parent MUST make request in writing. If request is oral, school district MUST present parent with “Permission to Evaluate/Evaluation” (PTE) Request form within 10 calendar days of oral request.

Parent MUST sign Permission to Evaluate/Consent form to trigger school’s duty to perform initial evaluation.

Parent has a right to refuse proposed evaluation If a parent believes an evaluation by charter

school is deficient, parent may request independent evaluation (IEE) and challenge school’s decision to deny such a request.

Right to re-evaluation every three years or, in the case of a child with an intellectual disability, every two years.

RIGHTS OF PARENTS IN EVALUATION PROCESS


Parents of students with disabilities have a number of procedural safeguards, including:

Opportunity to meaningfully participate in the evaluation process & development of their child’s IEP

Prior written notice (PWN) of any change to their child’s IEP

Opportunity to appeal when they don’t agree with the school district about their child’s IEP

RIGHT TO PROCEDURAL SAFEGUARDS


If a student is found eligible for special education:The IEP team must meet within 30 calendar days

after the evaluation report is completed. The IEP team must include the “parent,” at least one regular

education teacher of the child, one special education teacher of the child, an administrator, and the child (when appropriate)

Parent may bring other individuals who have knowledge or special expertise about the child

The IEP team must review the IEP at least once every year.

Parents or the school may request an IEP team meeting at any time.

RIGHT TO A FREE, APPROPRIATE PUBLIC EDUCATION (FAPE)


An IEP is a written statement for a child with a disability, which outlines the child’s special education program and related services.

The IEP must be tailored to meet the child’s unique needs.

If a service is listed on a child’s IEP, the child must receive it.

Child must receive “specially designed instruction”, modifications, support services, transition plan etc.

Child must make progress.

TYPE OF PLAN/SERVICES


Caseload Requirement: Each student with a disability must be assigned to a special education teacher’s caseload. 22 PA Code§14. 105 No such requirement in charter schools

• Age Range: The maximum age range in specialized settings shall be 3 years in elementary school (grades K—6) & 4 years in secondary school (grades 7—12). A student with a disability may not be placed in a class in which the chronological age from the youngest to the oldest student exceeds these limits unless an exception is determined to be appropriate by the IEP team of that student and is justified in the IEP. 22 PA Code§14.146 No such requirement in charter schools

CHARTER SCHOOL: IMPORTANT DIFFERENCES


State due process laws for suspension/expulsion of pupils

Expulsions require a formal hearingSuspensions require only an informal hearing

A charter school may not expel or suspend students for failure to meet the charter school’s academic requirements.

ALL IDEA protections apply – e.g., right to manifestation determination, etc.

CANNOT be disciplined due to disability

PROTECTION IN SCHOOL DISCIPLINE


To the maximum extent appropriate, children with disabilities should be educated with their non-disabled peers. Removal from the regular education classroom should occur only when the nature or severity of the child’s disability is such that education in regular education classes (with the use of supplementary aids and services) cannot be achieved satisfactorily.

The IDEA requires that each LEA offer a full continuum of placements for students.

RIGHT TO INCLUSION:LEAST RESTRICTIVE ENVIRONMENT

(LRE)


Students with disabilities are entitled to free and appropriate transportation when necessary to attend their special education program.

When it is needed, the type and amount of transportation must be included in the IEP as a related service.

RIGHT TO TRANSPORTATION


If parents disagree with the IEP or with any other proposal or refusal of the school district or charter/cyber charter relating to the child’s special education program, they can agree to mediate or request a formal due process hearing. Parents or anyone else acting on behalf of a child can also file a complaint with the Department of Education alleging a violation of the special education laws such as not providing the child with all of the services listed on the IEP.

RIGHTS IN DISPUTE RESOLUTION


CASE STUDY EXAMPLES

40Education Law Center, PA

LEGAL CHALLENGES:P.D. V. PASTOREK (E.D. NEW

ORLEANS)

In 2010, Southern Poverty Law Center filed an administrative complaint & federal lawsuit on behalf of thousands of students with disabilities alleging denial of FAPE and access to the city’s charter schools – where over 70% of schools are charters:Children with disabilities WERE significantly underrepresented in charter schools

Some charter schools suspend children with disabilities at rates 100% higher than the state average.

Only 6.8% of students with disabilities graduated with a high school diploma & 49% of students w/disabilities failed to finish school.

Education Law Center-PA 41

ADVOCACY OPPORTUNITIES

Advocacy in the Charter School context : Public Schools ARE obligated to admit, educate &

provide a FAPE in the least restrictive environment. IDEA’s requirements apply with equal force in all cases. State programs cannot exclude or deny equal benefit to

students with disabilities.Advocacy in the Cyber Charter context:

Cyber charters cannot refuse to educate children with disabilities & must monitor and ensure progress.

Cyber charter schools must provide “specially designed instruction” & make modifications to the curriculum.

Cyber charter schools must provide “related services” They must comply with all applicable procedural

safeguards, including parent participation in IEP meetings etc. 42

RIGHTS OF STUDENTS WHO ARE

HOME SCHOOLED


RIGHT TO EVALUATION


Parent’s request for an initial evaluation and re-evaluations should be made in writing to the child’s resident school district.

The child’s resident school district must evaluate the child and explain the results to the parent.

The evaluations should be conducted according to the same rules as for children attending public schools.

These students have no right to FAPE.

RIGHT TO A FAPE


A “home education plan” for a child eligible for special education must address the specific needs of the child and be approved by a PA certified special education teacher or a licensed clinical or certified school psychologist.

The school district or IU can agree with the Program Supervisor to provide some services. There may be a right to some services if the child is dual enrolled in public school.

TYPE OF PLAN/SERVICES PROVIDED


Pennsylvania law allows children who are home schooled to participate in some extra-curricular activities offered by their home school district.

Local school districts may, but are not required to, offer some academic courses to students who are home schooled.

As with all federally–funded programs, students may not be excluded from participation in programs offered by the public school district on the basis of their disability.

RIGHT TO INCLUSION


Any services agreed upon must take place at a public school or a licensed private school.

Services will not be provided at home.Transportation services may be agreed

to by the school district or IU with the Program Supervisor.



Any special education services must be agreed upon by the supervisor (the home school instructor) and school district or intermediate unit.

Since there is no duty to provide FAPE, the parent cannot use the hearing or complaint system to challenge a school district’s refusal to provide services. However parents can use the hearing process or mediation if it relates to the school district’s duty to evaluate the child.

RIGHT TO DISPUTE RESOLUTION


CASE STUDY EXAMPLES


RIGHTS OF STUDENTS PLACED BY PARENTS

IN PAROCHIAL OR NON-PROFIT PRIVATE

SCHOOL


RIGHT TO EVALUATION


Parent’s request for an initial evaluation and re-evaluations should be made in writing to the child’s resident school district.

The IU where the private school is located must evaluate the child.

The evaluation must be conducted according the same rules as for children attending the public schools.

These students have no right to FAPE.

RIGHT TO A FAPE


Children placed by their parents in a private school are entitled only to “equitable participation services” which should be listed on an Equitable Participation Services Plan.”

Unlike an IEP, the IU does not have to provide all of the services listed on the EP Services Plan if circumstances change (e.g., the IU exhausts the state and federal funds for EP Services).

A child may be able to get services from local school district if dual enrolled.

Non-religious private schools have a duty to provide “reasonable accommodations” for children with qualifying disabilities (a/k/a Service Agreement or 504 Plan).

TYPE OF PLAN/SERVICES PROVIDED


Federal law (ADA) prohibits discrimination by private, non-parochial schools.

Private, non-parochial schools must eliminate unnecessary eligibility standards that deny access to individuals with disabilities and make reasonable modifications in policies practices and procedures unless such a change would be an “undue burden” or be a “fundamental change” to the nature of the program.

RIGHT TO INCLUSION


School district must provide students with transportation to and from a non-profit private school that is in the district or within 10 miles of its boundaries.

The IU is responsible for transportation to a service it has agreed to provide.



Students do not have any special disciplinary protections.

PROTECTION IN SCHOOL DISCIPLINE


Since there is no duty to provide FAPE, parent cannot use mediation or the hearing system to challenge a school district’s refusal to provide services.

However parents can use the hearing process or mediation if it relates to the IU’s duty to evaluate the child.

RIGHT TO DISPUTE RESOLUTION


CASE STUDY EXAMPLES


PDE issues Basic Education Circulars (BECs), which provide guidance on the implementation of law, regulation and policy; these include:

The charter school BEC (“meant to serve as a guide for charter schools, school districts, parents, and students”)

The cyber charter BEC Enrollment Q&A, which includes information on

charter schools Other special education BECs include sections on

the responsibilities of charter schools to serve students with disabilities

RESOURCES:PA DEP’T OF ED (PDE) BECS


CONTACT INFORMATION

Maura McInerneySenior Staff Attorney

Education Law [email protected]

215-238-6970 Ext. 316

Education Law Center 1315 Walnut Street Suite 400

Phi ladelphia, PA 19107

702 Law & Finance Building429 Fourth Ave.

Pittsburgh, PA 15219www.elc-pa.org

Education Law Center-PA 61

mailto:[email protected]

http://www.elc-pa.org/

Maura McInerney, Esq. Education Law Center

Documents

Transcript of Maura McInerney, Esq. Education Law Center