By: Omar Issa

Special Education Law – What’s New?

Special needs children have educational rights under the eyes of the law. It all starts with the Individuals with Disabilities Education Act (IDEA), which is a sort of “grant statute” that creates civil rights for this protected class. Amended in 1997 to provide accommodations to special needs children, this special education law mandates the improvement of teaching and learning via Individualized Education Programs or IEPs.

After being introduced, IDEA was amended in 2004, which saw the addition of a number of procedural and substantive changes, as well as bringing IDEA into compliance with the new No Child Left Behind Act of 2001 (NCLB). Language in the special education law states that “the education of children with disabilities can be made more effective by … ensuring their access in the general curriculum to the maximum extent possible.”

Specifically, the IDEA special education law created the following rights and protections: children with disabilities must be given a free and appropriate education; education and other services must be provided to all children up to the age of 21 (22 in California); education includes academic, self-help and vocational skills; education must be given in the “Least Restrictive Environment”; and education must be individualized to the child’s needs.

Furthermore, the federal special education laws outlined in IDEA also defines certain procedural protections such as: each child’s right to be notified of decisions made about their educational programs; the right of parents to be notified of their procedural and substantive protections under the law; the right to an individualized education program; the right to a court hearing and a record of the hearing; the right for children to remain in an educational setting until any dispute is resolved (also known as the Stay-Put Provision); and the right to have attorneys fees covered if a family wins an administrative hearing.

New Special Education Laws

While IDEA set the stage for legal protections of special needs children, new special education laws and other legislation are also being introduced each year. Let’s take a look at a few of these laws.

In California, AB 605 stipulates that local schools and educational agencies must provide assistive technology devices to children in their homes or their community if they are required for the student to receive an appropriate public education. Also known as FAPE, this law extends certain tenets of IDEA, requiring that local institutions provide assistive technology devices to students for two months after moving into another district — or until new devices can be provided.

Next up is AB 947, a special education law that allows education agencies to expand the core curriculum when designing individualized education programs for students that are visually impaired or blind. This includes skills such as braille, social interactions, technical education, assistive technology, living skills, self-determination and orientation and mobility, among others.

Another special education law introduced in California is known as AB 988, which governs teacher credentialing and the required years of experience needed based on a 2-year experience requirement.

One of the more important special education laws for 2020 is AB 1172, which spells out guidelines for nonpublic, nonsectarian schools and educational agencies. Starting with the 2020-2021 school year, all staff of nonpublic schools and educational agencies that interact with students during the school day must be trained in behavioral practices and interventions, verified by the contracting local educational agency.

In the 2021-2022 school year, AB 1172 requires onsite visits by a local educational agency before placing any student in a nonpublic school. During the school year, local educational agencies must also conduct a monitoring visit after the student is placed, including a walkthrough of the facility and a review of programs and the progress made towards the goals set out in the individualized education program or a behavioral intervention plan. Students must also be observed during instruction.

As for the administrators of nonpublic schools, AB 1172 stipulates that they must hold or be in the process of obtaining specific credentialing for working with special needs children with at least one person responsible for behavior interventions being onsite during school hours. All nonpublic schools are also required to notify the California Department of Education and local educational agencies within one day if any incidents on the premises require the services of law enforcement.

Also known as Jojo’s Act, SB 223 is a special education law that has to do with the administration of medicinal cannabis on school sites. Primarily, it allows school boards to adopt policies and regulations that permit a parent, guardian or a qualified student to give medicinal cannabis to students at school. While the cannabis can’t be in a smokable or vapable form, such as cannabis flower, and the law doesn’t require schools to create such a policy, if a policy is introduced it must include these provisions with the specific medical recommendations on file for each student.

Special Education Law Cases

Legislation isn’t the only way that special education laws can be revisited. Judicial decisions can clarify the practical applications of laws as well as help define their scope or provide needed context. Two such recent judicial decisions include B.H. v. Manhattan Beach Unified School District and Paul G. v. Monterey Peninsula Unified School District.

In B.H. v. Manhattan Beach Unified School District, the U.S. Ninth Circuit Court of Appeals ruled that school districts are required to fund placement for students according to their individualized education program under IDEA even if a student received financial assistance for placement at a treatment facility through another educational agency.

In Paul G. v. Monterey Peninsula Unified School District, the Ninth Circuit ruled that students and their families are unable to pursue claims under either the Americans with Disabilities Act (ADA) or the Rehabilitation Act of 1973 against the California Department of Education if the underlying due process case was settled with the school district. Writing that administrative rulings are only valid through the Office of Administrative Hearings, the ruling states that students are unable to settle a FAPE-related claim in court.

Learn About Special Education Law

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