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- What is Special Education?
Special education programs in Missouri are governed by both federal and state law. In most instances they are the same or very similar. In some cases, state law may provide more protections than federal law. State law never limits the protections offered under federal law. Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).
The Missouri state plan for the Individuals with Disabilities Education Act, Part B (State Plan) contains the administrative provision for Missouri’s delivery of special education and related services to eligible children and youth. Title 5, Code of State Regulations (CSR) 70-742.140.
- Who is eligible for special education?
Children with a certain qualifying disabilities, in need of special educational assistance, are entitled to receive special education and related services. Eligible disabilities include:
- mental retardation
- hearing impairments and deafness
- speech or language impairments
- visual impairments (including blindness)
- emotional disturbance
- orthopedic impairments
- traumatic brain injury
- other health impairments
- specific learning disabilities
- deaf blindness
- multiple disabilities and
- developmental delay (children age three through five).
Title 34, Code of Federal Regulations (C.F.R.) Section (Sec.) 300.8; State Plan, Regulation (Reg.) III. Children may be eligible for special education between the ages of three and 21 years of age if they have not yet completed their high school education. Missouri Revised Statutes (Mo. Rev. Stat.) Sec. 162.675; State Plan, Reg. III(2).
A child is not eligible for special education if the determining factor in the child’s exceptional needs is a lack of appropriate instruction in reading, a lack of instruction in math, or limited English proficiency. Title 20, United States Code (U.S.C.) Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b)(1).
The Missouri state plan for implementing the Individuals with Disabilities Education Act First Steps Program (Part C State Plan) contains the administrative provisions for the delivery of Missouri’s federally assisted early intervention system. 5 CSR 70-742.141. Children who are between the ages of birth and 36 months are eligible for early intervention services if they have been determined to have a diagnosed physical or mental condition associated with developmental disabilities or that has a high probability of resulting in a development delay or disability. Part C State Plan, Reg. I.
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE). FAPE means special education and related services that are provided at public expense and without charge, meet appropriate standards, include preschool through secondary education, and conform with an Individual Education Program (IEP). 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. Special education must be provided in the least restrictive environment (LRE). To the extent appropriate, all students with disabilities should be educated with students who are not disabled. 34 C.F.R. § 300.114.
Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. Specially-designed instruction is defined as “adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. § 300.39(b)(3).
An “appropriate” educational program and placement is one which is designed to meet a student’s unique needs in accordance to his or her IEP and allows him or her to obtain “educational benefit.”
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
Missouri school districts are required to provide “related services,” which allow a student to benefit from his or her special education program at no cost to the parents. 20 U.S.C. Sec. 1401(9); State Plan, Reg. I(3), IV(1). In Missouri, related services are those required to assist a child with a disability to benefit from special education. These include transportation, developmental, corrective, and other supportive services.
The following list is illustrative of related services in Missouri:
- speech pathology and audiology services
- interpreting services
- psychological services
- physical and occupational therapy
- recreation, including therapeutic recreation
- early identification and assessment of disabilities in children
- counseling services, including rehabilitation counseling,
- orientation and mobility services, and
- medical services for diagnostic or evaluation purposes.
Related services also include school health services, school nurse services, social work services in schools, and parent counseling and training.
Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning or the replacement of that device. State Plan, Reg. I(3).
- Who provides special education?
The state educational agency and the student’s school district are both responsible for ensuring that appropriate special education services are delivered. In Missouri, the school district in which a child with a disability resides is responsible for implementation of FAPE.
In some instances, the Department of Mental Health, Department of Social Services, a court of competent jurisdiction or the Department of Corrections may provide the special education and related services. The Missouri Department of Elementary and Secondary Education (DESE) is responsible for ensuring that each IEP is under the general supervision of the Division of Special Education of the DESE, and that their programs meet the educational standards of the DESE. 20 U.S.C. Sec. 1412(a)(11), 1413(a)(1); 34 C.F.R. Sec. 300.149; State Plan, Reg. IV(1), VI(1).
- Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
Special education must be provided in a least restrictive environment (LRE). To the maximum extent appropriate, children with disabilities must be educated with their nondisabled peers. Students with disabilities may be removed from the regular educational environment only when the disability of a child is such that education in regular classes cannot be achieved satisfactorily even with the use of supplementary aids and services. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114; Mo. Rev. Stat. 162.680; State Plan Reg. IV(3).
Ordinarily a child with disabilities must be educated in the school that he or she would attend if nondisabled. However, it is possible for special education to be offered outside of school, if appropriate. Specialized education can be offered in the mainstream classroom, in a resource room, at home, or in hospitals or residential programs. If outside of the ordinary classroom, the environment must be formally approved in an IEP. (IEPs are discussed below.) State Plan Reg. IV(3). Placements.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
Local school districts must identify, locate, and evaluate all children residing in the district with disabilities through “Child Find” activities. State Plan, Reg. III(1). Both school district personnel and parents may request an evaluation for a child. The DESE recommends that the parent make their request in writing (see Parent’s Guide to Special Education in Missouri, published by the DESE and available at http://dese.mo.gov/divspeced/parentresources.html). The district must either (i) accept the request and proceed with the evaluation process or (ii) refuse the request and provide the parent with a Notice of Action Refused.
Consent of the parent must be obtained prior to conducting the initial evaluation. The appropriate public agency (often the school district) must provide the parent with a Notice of Intent to Evaluate as soon as possible, but within 30 days of the date of referral for evaluation (or longer in certain situations such as school breaks, student illness, etc.). The evaluation must be completed and a decision regarding eligibility rendered within 60 days following the parent consent or notice (or longer in certain situations). State Plan, Reg. III(3).
The assessment is conducted by the IEP Team. This team consists of
(i) the child’s parents;
(ii) at least one regular education teacher of the child;
(iii) at least one special education teacher of the child;
(iv) a representative of the school district;
(v) someone who can interpret the evaluation; and
(vi) any other individuals the parent wants who have special knowledge of the student.
34 C.F.R. 300.321; State Plan, Reg. IV(2). After the assessment, the IEP team must determine whether the child has a disability and the educational needs of the child. The parent MUST be provided a copy of the evaluation report at no cost. 34 C.F.R. 306(a)(2); State Plan, Reg. III(3).
- What may parents do if they disagree with assessments or evaluations? May they obtain an independent evaluation?
If parents disagree with the results, they may challenge the decision through a due process hearing, which is discussed below. 34 C.F.R. Sec. 300.507; State Plan, Reg. V(6).
The parent may also request an independent education evaluation (IEE) if they disagree with the result of the initial evaluation. The district must provide an IEE to the parent at no cost unless it chooses to seek a due process hearing to determine whether its own assessment was legally adequate. The parent is entitled to only one IEE at public expense each time the parent disagrees with an evaluation. 34 C.F.R. 300.502; State Plan, Reg. V(2).
- Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)?
Once it is determined that a child is a “child with a disability,” an Individualized Education Plan (IEP) is developed for that child. An IEP outlines in writing the educational program for the student. It is developed at a meeting by the child’s IEP team (the participants of the IEP team are described above).
The IEP must include:
- Current educational performance levels
- Measurable annual goals
- How and when progress toward the goals will be measured
- Specific special education and related services
- The child’s participation in physical education
- The extent to which the child will not participate with nondisabled child in regular education classes as well as extracurricular and nonacademic activities
- Any accommodations in standardized, state-wide examinations (or, if applicable, a statement of why the child cannot participate in the regular assessment and why the particular alternative assessment is appropriate for the child)
- Anticipated start date, duration, frequency, and location of services and modifications
- Description of the IEP Team
- Extended school year services if needed and
- Placement considerations and decision.
State Plan, Reg. IV(2).
Additional items must be included in the IEP, as appropriate. These include transition services for the child once they are 16 years old and a statement to the child at least one year before he or she turns 18 that the child has been informed of his or her rights under Part B of IDEA and that those rights will transfer to the student upon reaching the age of majority. There are additional items that must be included in the IEP for a child that is blind or visually impaired. State Plan, Reg. IV(2).
- Do parents have say in the IEP?
Consent of the parent is required before the initial provision of special education and related services to the child. State Plan, Reg. V(5). A parent may unilaterally withdraw a child from further receipt of special education and related services by revoking their consent from the continued provision of the services. State Plan, Reg. V(5).
Each public agency must take steps to ensure that one or both parents of the child are present at each IEP meeting or are afforded the opportunity to participate, including notifying parents of the meeting early enough and scheduling the meeting at a mutually agreed upon time and place. 34 C.F.R. 300.322; State Plan, Reg. IV(2). An IEP meeting may be conducted without the parent in attendance if the public agency is unable to convince the parents that they should attend after two attempts to arrange a mutually agreed upon time and place. The public agency must take action to ensure that the parent understands the proceedings of the IEP meeting, including arranging for an interpreter for parents who are deaf or whose native language is other than English. State Plan, Reg. IV(2).
The public agency must ensure that a reevaluation of the child with a disability is conducted if it determines that a reevaluation is warranted or if the child’s parent or teacher requests a reevaluation. A reevaluation may occur not more than once a year, unless the parent and the public agency agree otherwise. A reevaluation must occur at least once every three years, unless the parent and the public agency agree that a reevaluation is unnecessary. 34 C.F.R. 300.303; State Plan, Reg. III(3). If the parent disagrees with the reevaluation results, the parent may request an independent education evaluation (IEE). Details about IEEs are discussed above.
- What happens if a child with an Individualized Education Plan transfers location?
If a child with an IEP transfers to another Missouri school district during the school year, the IEP must be upheld by the local educational agency. The services of the IEP must be provided until the next annual review or until the IEP team determines it is necessary to review/revise the IEP.
If a child with an IEP in effect transfers to Missouri from another state within the same school year, the Missouri public agency must consult with the parents and provide the child with comparable services to those described in the old IEP until a new evaluation occurs and a new IEP is implemented (if necessary).
If the records of a child who transferred from outside Missouri are not available, the child will temporarily be placed in regular education and receive an evaluation. If the child is found eligible the child’s IEP team will develop and implement an IEP. State Plan, Reg. IV(2).
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
Parents are encouraged to first discuss their questions and concerns with their local school district staff, including the child’s teacher or another IEP team member. If the parent is unable to resolve any disagreements with the local school district staff, parents should call the Division of Special Education, Compliance Section, DESE and speak to a division staff member. See The Parent’s Guide to Special Education in Missouri, published by the DESE, available onine at http://dese.mo.gov/divspeced/Compliance/documents/ParentGuide.pdf
Parents also have the right to use the formal child complaint process. If the parent is convinced that the rights of the child are being violated, they may file a complaint, in writing, directly with the DESE (a copy must also be sent to the local school district). In the complaint, the parent should:
(i) Explain the concern
(ii) Provide a detailed description of the violation
(iii) Include child’s name, parent’s name, parent’s contact information, and child’s school district.
A model child complaint form and other information about the process are at: http://www.dese.mo.gov/divspeced/Complaint_System/.
Upon receipt of the complaint, the DESE generally has 60 days to investigate and resolve the complaint. The parent will be informed of the resolution of the complaint through the issuance of a decision letter from the DESE’s Commissioner of Education. This decision is final and parents cannot make further appeals. 34 C.F.R. 300.151 through 300.153.
- What options does a parent have if he/she disagrees with the proposed IEP placement or services? What are the procedures for due process?
Parents may file a due process complaint if they disagree with the evaluation and/or IEP for their child. 34 C.F.R. 300.507; State Plan, Reg. V(6), VI(3).
Filing the Complaint
In Missouri, the parent must provide a copy of the complaint to the party who the complaint is against (for example, the school district) and must also forward a copy of the complaint to the DESE. The complaint must include:
(i)the child’s and parent’s names and addresses;
(ii)the name of the school district;
(iii)a description of the parent’s concerns; and
(iv)the resolution the parent is seeking.
State Plan, Reg. V(6) , VI(3). Parents can find a model due process complaint form and other information about the process at: http://www.dese.mo.gov/divspeced/Complaint_System/.
If the complaint does not include all of the information listed above, the responsible public agency may file a notice of insufficiency within 15 days of receiving the complaint. Within another five days, the administrative hearing officer may dismiss the complaint if the parent does not submit the information that was not included. State Plan, Reg. V(6).
Within 15 days of receiving the complaint, and before a due process hearing begins, the school district must have a meeting with the parent and the relevant members of the IEP Team (unless the parties agree to waive the resolution process or use mediation, which is discussed below) to discuss a resolution for the complaint.
Parents are entitled to bring an attorney to the resolution meeting. The school district may not bring an attorney unless the parent does.
If the parties agree to a resolution at the meeting, they must enter it into a legally binding written agreement. If the public agency has not resolved the due process complaint to the satisfaction of the parent within 30 days of the day the parent provides the complaint, then a due process hearing may occur. After the 30 day resolution period, the public agency has 45 days to issue a final decision. State Plan, Reg. V(6).
Parents who waive the resolution session may participate in state-paid mediation. A parent may file for a due process hearing in addition to filing for mediation. Mediation is a voluntary and confidential process in which a trained, impartial facilitator works with both parties to reach an agreement. Mediation is available at any time up until the hearing. Mediation must begin within 15 days of selecting the mediator and must be completed within 30 days of the agreement to mediate. If the parties resolve the dispute through the mediation process, they must execute a legally binding settlement. 34 C.F.R. 300.506; State Plan, Reg. V(6).
If the complaint is not resolved through the resolution meeting or through mediation, it will go to a due process hearing.
- Do parents have any rights at a due process hearing?
A parent has many rights at the due process hearing. The parent has the right to:
(i) be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities;
(ii) represent himself or herself or be represented by an attorney;
(iii) present evidence;
(iv) confront, cross-examine, and compel the attendance of witnesses;
(v) prohibit the introduction of evidence;
(vi) obtain a written or electronic record of the hearing at no cost;
(vii) obtain written or electronic findings of fact and decisions at no cost;
(viii) open the hearing to the public (otherwise, it is closed); and
(ix) choose to have the student present at the hearing.
State Plan, Reg. V(6). During the time a due process hearing is pending and until the due process is concluded, the student is entitled to “stay put.” This means that the student will remain in his or her current educational placement unless the parent and school district agree otherwise. There is an exception to this “stay put” rule if the student is endangering himself or herself or others. 34 C.F.R. 300.518; State Plan, Reg. V(6).
- Can a special education student be disciplined?
Yes. A child with a disability can be suspended for violating a code of student conduct.
If the suspension is less than 10 consecutive days, the school district does not have to provide services during the suspension (unless in the past the school has provided services to a child without a disability for a suspension of similar length). A child may be suspended for less than 10 consecutive days on separate occasions as a result of separate incidents. 20 U.S.C. Sec. 1415(k)(1); State Plan, Reg. V(8).
Once a child has been suspended for a total of 10 days in the same school year, the school district must provide the child with additional services to continue to meet the child’s IEP. The extent to which additional services are needed is determined by school personnel in consultation with at least one of the child’s teachers. Modifications must be made to ensure a similar behavior violation does not occur again. 20 U.S.C. Sec. 1415(k)(1); State Plan, Reg. V(8).
Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement,” and schools cannot change special education students’ placements without parental consent or a manifestation determination meeting. 20 U.S.C. Sec. 1415(k)(1)(B) and (E); State Plan, Reg. V(8).
A manifestation determination meeting is an IEP team meeting to determine whether a child with a disability may be expelled or have his or her placement changed for more than 10 consecutive school days for misconduct. It must be held within 10 days of the school’s decision to expel the student or change his placement. The team must consider two issues: 1) was the behavior caused by or directly related to the child’s disability, and 2) was the behavior the direct result of the school’s failure to implement the IEP?
If the team answers yes to either question, the child cannot be expelled. Parent consent or a hearing officer’s order is then required for the suspension or expulsion to be carried out. If the IEP team determines that the behavior is a manifestation of the child’s disability, the child must return to his or her original placement (except under certain circumstances described in the next paragraph), unless the parents and school agree otherwise. The school must also do a behavioral assessment or modify existing behavior plan to address the behavior. The parent may appeal the team’s manifestation determination by requesting a due process hearing. While the appeal is being resolved, the child remains in the interim educational setting unless the parent and school agree otherwise. 20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f), 532; State Plan, Reg. V(8).
Whether or not the behavior was a manifestation of the child’s disability, school personnel may place the student in an interim alternative setting for up to 45 days in the case certain behaviors such as where the student is involved with drugs or weapons or presents a danger to himself or herself or others. 20 U.S.C. Sec. 1415(k)(1)(G); State Plan, Reg. V(8).
Students with disabilities must continue to receive educational services during any period of interim placement or expulsion. The extent to which the educational services are needed is determined by the child’s IEP team. 20 U.S.C. Sec. 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1); State Plan, Reg. V(8).
- Can parents see the school records of their special education child?
Yes. Parents have a right to see the educational records of their child before any IEP meeting, hearing, or resolution session. The records must be provided within 45 days of the parents’ request. Parents can request explanation/interpretation of their child’s records.
A parent’s right to review and inspect records includes rights to:
(i) a response from the district to the parent’s request for explanation/interpretation;
(ii) have copies provided free of charge (if the copies are necessary to let the parent inspect and review the records); and
(iii) have a representative inspect and review the records.
The school district or public agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation and divorce. 34 C.F.R. 613; State Plan, Reg. II(1).