A Parent's Guide to Connecticut School Law- Part 2
by
Joseph C. Maya on Feb. 20, 2017
Other Education Criminal Juvenile Law
Summary: This publication is an in-depth look at the laws surrounding Education in the state of Connecticut, as well as the obligations of parents and the rights of students. Part 2 covers more topics in Special Education.
What are Related Services?
Under the IDEA, the term “related services” means transportation, and such developmental, corrective, and other supportive services as may be required to assist a child with a disability to benefit from special education.37
The following are examples of related services:
- speech-language pathology and audiology services
- interpreting services
- psychological services
- physical and occupational therapy
- recreation, including therapeutic recreation
- social work services
- counseling services, including rehabilitation counseling
- orientation, mobility and medical services (except that such medical services shall be for diagnostic and evaluation purposes only)
Your child’s need of related services will be determined by your child’s PPT and services shall be implemented as part of their IEP. Your child’s school district is responsible for the costs of implementing related services pertaining to your child’s needs as part of its requirement to provide a FAPE, which, by definition, includes related services.
What is Assistive Technology?
The term “assistive technology device” means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.38 These devices can range from specialized drinking cups to more sophisticated technologies, such as, computers and motorized wheelchairs.
The term “assistive technology service” means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Assistive technology services include:
o the evaluation of the needs of your child, including a functional evaluation of your child in his or her customary environment;
o purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices for your child;
o selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
o coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
o training or technical assistance for your child, or, where appropriate, your child’s family; and
o training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of your child.39
As part of the school district’s obligation to provide your child with a FAPE, assistive technology and services may be required to ensure accommodation of your child’s individual needs. If the school district pays for the device then it owns it. If your child’s device was purchased through Medicaid or private insurance, then it belongs to your child.
Where will my child be placed if he or she requires special education services?
After the PPT develops your child’s IEP, the next step is to determine the specific placement of your child to receive his or her special education. A major component of your child’s placement is that he or she be placed to the maximum extent appropriate with his or her non-disabled peers. The IDEA requires that states receiving federal funds for special education in public or private institutions educate your child with children who are not disabled, and that special classes, separate schooling, or other methods of removal from the regular educational environment pertaining to children with disabilities occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. This is referred to as the “LRE” or the least restrictive environment.40
In placing your child, the local educational agency must ensure that the decision is made in conjunction with a parent and any other individuals who have knowledge about your child, and in conformity with the LRE provision. A child’s placement is to be determined annually in accordance with their IEP and be as close as possible to their home.41 Unless your child’s IEP requires otherwise, he or she should attend the same school as if he or she was not disabled. When selecting the LRE, significant consideration must be given to any potential harmful effects that this placement may have on your child or on the quality of required special education services.42 The PPT must consider assistance of an aide, modified instruction or other supplementary aids and services that will allow for your child to be educated in a regular classroom setting.
First, the PPT should consider the benefits that each potential setting will provide your child. The PPT should not only weigh the academic benefits for each placement scenario but other factors as well, such as communication with teachers and students. Second, the PPT should look at whether placing your child in a regular education setting would lead to disruption. Factors in determining the potential for disruption include the child’s social skills or whether your child’s presence will divert the attention of the teacher away from the other students in the class. Lastly, the PPT may consider the cost of supplementary aids and services required to support your child in the regular classroom setting. The school district, however, cannot use the cost of providing supplemental aids or services as justification for not providing your child with an education in the least restrictive environment.
What if my child is placed in private school or referred to a private school? Am I eligible for reimbursement if my child attends a private school?
Due to the cost of enrolling a child in private school, major issues surrounding reimbursement for such placement may arise between parents and the school district. The school district is obligated to provide your child with a FAPE, which embraces the possibility that enrollment in a private school may be necessary to meet your child’s needs.
If your school district determines that your child’s special education requirements would best be met in a private school, they may make the appropriate referral. Prior to referring your child for private school placement, the local educational agency must develop an IEP for your child. The public school must ensure that a representative of the private school attends this meeting and if they are unable to attend, your child’s public school must use other methods to ensure their participation, such as individual or conference telephone calls.43 The school board must concur with the initial finding that placement in a private institution is necessary and proper and that no state institution is available to meet your child’s needs.44 The school district must pay the reasonable cost of your child’s enrollment. The local educational agency is not required to pay for the cost of your child’s education, including special education and related services, if a FAPE otherwise has been made available to your child and as a parent you have elected to place your child in private school.45
Most issues pertaining to elective private school placement arise between parents and the school district regarding the availability of an appropriate education and the question of financial reimbursement. Disagreements on these matters are subject to the due process procedures, discussed in greater detail below. As a parent of a child with a disability you have the right to enroll your child in private school as you see fit. However, if your public school district concludes that they are able to provide an appropriate education for your child, a dispute over reimbursement is likely to arise.
Enrollment of your child in private school without the local educational agency’s consent or referral may lead to a dispute as to the need for this enrollment in order to provide an appropriate education for your child. If a hearing officer finds that the agency has not made FAPE available to your child and private school placement was appropriate, you will be entitled to full reimbursement for the cost of enrolling your child in a private school.46 Although a hearing officer after a hearing may find that you are entitled to full reimbursement by your school district for the cost of private school placement, reimbursement may nevertheless be reduced or denied.
The following are grounds for when your public school district can reduce or deny reimbursement for enrollment in private school following a hearing officer’s decision that private school placement was nonetheless appropriate. First, if as a parent you failed to inform your child’s public school at the last PPT meeting you attended (prior to removing your child) that you were rejecting the placement proposed by the public school agency to provide FAPE to your child. You must have stated your concerns and intent to enroll your child in private school at public expense. This information must be provided in writing by a parent at least ten (10) business days prior to the removal of your child from his or her public school. Second, if, prior to the removal of your child from the public school, the local educational agency had informed you of its intent to evaluate your child and you failed to make your child available for an evaluation. Lastly, if there is a judicial finding of parental unreasonableness in enrolling your child in private school without the public school’s acquiescence.47 Adhering to the aforementioned requirements will allow the public school district the opportunity to address your concerns and make any necessary changes to your child’s program prior to you removing your child.
Under certain circumstances, the school district will not be entitled to a reduction or full abatement in reimbursing you for the cost of enrolling your child in a private school. If you can show that, (a) the school prevented you from providing them with notice of your decision to remove your child, (b) compliance with the notice requirement would likely have resulted in physical or emotional harm to your child or (c) you are unable to read and write in English, reimbursement will not be reduced or declined for failure to adhere to the notice requirements.
Is my child obligated to adhere to the same disciplinary rules as any other student?
The code of student conduct that your child’s school district has in place applies to all students, including students who receive special education and related services. A more detailed look at disciplinary procedures can be found in the Discipline section of this publication., The following will provide you with an overview of certain obligations that both you as a parent and the school district must fulfill when your child has been disciplined due to behavior that may or may not have been disability related.
Your child’s PPT, of which you are a part, will meet to review the relationship between your child’s behavior and his or her disability. This is known as the “manifestation determination.” The PPT determines if your child’s behavior was caused by or had a direct and substantial relationship to his or her disability. The PPT will also determine whether your child’s behavior was caused by the school district’s failure to implement his or her IEP. If the PPT determines that your child’s disability did not cause the subject behavior, then your child will be disciplined as would any other child who behaved in that particular manner. The manifestation determination must be conducted within ten (10) days of any decision to change the placement of your child due to a violation of the code of student conduct.48
If the PPT finds that your child’s behavior was a manifestation of his or her disability or was due to a failure to implement his or her IEP, then your child may not be removed from their current educational setting. Thereafter, the PPT must conduct a functional behavioral assessment and implement a behavioral intervention plan.49 A functional behavioral assessment looks at why your child behaved the way he or she did by collecting data to determine the possible causes of the problem and identify strategies to address your child’s behavior. The behavioral intervention plan, which is also developed by your child’s PPT, must be designed to teach your child appropriate behaviors and eliminate behaviors that impede on his or her ability to learn, as well as that of other students in your child’s class.
School personnel may remove your child from his or her current educational placement and into another appropriate interim educational setting for a maximum of ten (10) consecutive school days.50 Your child’s IEP determines what an appropriate interim educational plan setting will be.51 Although your child may be removed from his or her current educational setting and into an interim educational setting if it is found that his or her behavior was not a result of their disability, the child still must continue to receive educational services, so as to continue participation in the general education curriculum and to progress toward meeting the goals set out in his or her IEP.52
There are three circumstances permitting your child’s school district to place your child in an interim educational setting for up to forty-five (45) days, irrespective of whether your child’s behavior was found to be a manifestation of his or her disability:
- He or she carries a weapon to school or a school function, or is in possession of a weapon in school or at a school function;
- He or she knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances while at school or a school function; or
- Inflicts serious bodily injury upon another person while at school, or at a school function.
Moreover, a hearing officer may place your child in an interim educational setting if he determines that keeping your child in his or her current placement is substantially likely to result in an injury to your child or to others.53
If you disagree with any decision regarding the placement of your child following a disciplinary finding or manifestation determination, you have the right to initiate a due process hearing.54 Pending a decision by the hearing officer, unless you and the school district agree otherwise, your child will remain in the disciplinary placement until the earlier of the issuance of a decision or expiration of the placement.55 In addition, the hearing officer may return your child to the placement from which he or she was removed if the hearing officer determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.56
The LEA is responsible for arranging the expedited due process hearing and must do so within twenty (20) school days of the date the complaint requesting the hearing was filed. The hearing officer must make a determination within ten (10) school days after the hearing is held.57 Decisions as to an expedited due process hearing pertaining to any of the matters in dispute are appealable.58
The following will set forth in more detail the procedural requirements that a due process proceeding entails, as well as the procedures for other alternative dispute resolution methods that as a parent you have at your disposal.
What is a Due Process Hearing and Alternative Dispute Resolution?
What is a Due Process Hearing?
A due process hearing is a legal proceeding that ensures fairness in the decision-making process regarding your child. As a parent, if you disagree with a proposed or refused action pertaining to your child’s education, you or the school district may initiate a due process hearing to resolve the disagreement.
You may file a due process complaint within two (2) years of the time the school district proposes or refuses to: (a) consider or find that your child is disabled, (b) evaluate your child, (c) place your child in a school program that meets his or her unique individual needs or (d) provide your child with a free appropriate public education (FAPE) that meets your child’s needs.59 If your school district has not provided you with a copy of your rights to bring a complaint, then according to the Connecticut State Department of Education, the two-year limit shall not begin until you receive a copy.60 This procedural safeguard manual may be available on the Department of Education website.61 You must forward a copy of the due process complaint to the appropriate state educational agency, which in Connecticut is the Due Process Unit of the Bureau of Special Education, State Department of Education.62 The complaint must include the name of your child, the address of the residence of your child, the name of the school your child is attending, a description of the nature of the problem, which includes any related facts of which you are aware, and a proposed resolution to the problem.63
The party receiving a request for a hearing has fifteen (15) days from the date of receiving the due process complaint to notify the hearing officer and the other party if they believe the request for the hearing does not include the required information as stated above.64 The hearing officer has five (5) days to make a determination as to the adequacy of the hearing request and whether it meets the necessary requirements. If the hearing officer finds the complaint to be inadequate, you will have to file a new complaint. If the complaint is found to be adequate, your child’s school district must within ten (10) days send to you: an explanation of why the school proposed or refused to take the action raised in the complaint, a description of other options that the PPT team considered and the reasons why those options were rejected, a description of each evaluation procedure, assessment, record or report the school used as the basis for the proposed or refused action and a description of any other relevant facts the school relied upon in its proposed or refused action.65
Within fifteen (15) days of the school district receiving notice of the due process complaint and prior to the initiation of a hearing, the LEA must convene a meeting with you and other relevant members of the PPT team who have specific knowledge of the facts identified in the complaint. The purpose of this meeting is for you as a parent to discuss the due process complaint, so that the LEA has the opportunity to resolve the dispute without having to begin a due process hearing.66 This meeting need not be held if both you and the school district agree in writing to waive the meeting.67 If the LEA has not resolved the issues expressed in the due process complaint to your satisfaction within thirty (30) days following receipt of notice of the complaint, the due process hearing may begin. A final decision must be made by the hearing officer no later than forty-five (45) days after the expiration of the thirty (30) day period or adjusted time-periods if you failed to participate in the resolution meeting in a timely manner.68 A hearing officer may grant specific extensions of time beyond the forty-five (45) day period for certain reasons at the request of either party.69 The hearing must be conducted at a time and place that is convenient for both you and your child. A copy of the final decision must be mailed to each of the parties.
Both you and the school district have the right to be accompanied and advised by counsel during the course of a due process hearing. Both parties may also be accompanied by individuals with special knowledge or training with respect to children with disabilities. Both parties may present evidence, as well as confront, cross-examine and compel the attendance of witnesses. Moreover, you and the school district are precluded from introducing evidence at the hearing that has not been disclosed to the other party at least five (5) business days before the hearing. The hearing will be recorded and upon your request you may be provided at no cost with a written or electronic copy of the hearing, as well as the hearing decision.70
Where will my child be placed during a proceeding with my child’s school?
While a due process proceeding is pending, your child shall remain in his or her current educational setting as of the time the hearing was requested, unless you and the school district agree otherwise. This provision is known as “stay-put.”71 There are, however, a few exceptions to the stay-put provision. If you have filed for a due process hearing with respect to a disagreement over the removal of your child from his or her placement and into an interim alternative education setting for matters related to weapons, drugs or infliction of serious bodily harm, your child will remain in the interim alternative education setting while the hearing is pending. Stay-put does not apply if you are challenging a manifestation determination, as a placement may change during these proceedings.
What is Mediation?
Mediation is an alternative process in which you may resolve a dispute that arises with your school district as it pertains to your child’s special education rights. Mediation is voluntary and both you and the school district must agree to enter into the mediation process. The mediation process must be held at a time and place that is convenient to the parties involved in the dispute.72
During mediation the mediator will be present to help you and the school district resolve any disputes that are pending. If a dispute is resolved through the mediation process, both parties must execute a legally binding agreement that sets forth the resolution. This document is enforceable in court.73 Any discussions that occur during the mediation process, however, are confidential and may not be used as evidence in any subsequent due process hearings or civil actions.74 If the parties are unable to resolve the dispute through mediation, either party may proceed with a due process hearing. 75
The Connecticut State Department of Education, Bureau of Special Education, maintains a list of qualified mediators who are knowledgeable in laws and regulations pertaining to special education and related services. An individual who serves as a mediator may not be an employee of the school district that is involved in the education and care of your child and must not have a personal or professional interest that conflicts with their ability to be objective.76 The state will bear the cost of the mediation process.77 As in the case of a due process hearing, both parties at their own cost may be accompanied by an attorney to help in the mediation conference.
What is an Advisory Opinion?
Another alternative dispute resolution mechanism is an advisory opinion. This is a nonbinding opinion issued by a hearing officer after consideration of a presentation given by both you and the school district. Since an advisory opinion is non-binding you may pursue other avenues to resolve the matter but it may be helpful in settling the dispute without having to go through a formal hearing process or mediation proceeding.
According to the Connecticut State Department of Education, no recording will be made of the advisory opinion process and the confidential opinion may not be used in future proceedings. You and the school district may both be accompanied by an attorney, as well as up to two witnesses that may participate in the advisory opinion process.
What is the Special Education Complaint Resolution Process?
This procedural mechanism allows for a parent to file a written complaint with the Bureau of Special Education regarding allegations that your child’s local educational agency violated federal or state law pertaining to special education. This complaint must be filed within one (1) year of the time in which you believe your child’s school district has violated the law.
Your complaint should state that your child’s school district is failing to follow the IDEA or applicable Connecticut state law enacted to protect children with disabilities and recount the facts that form the basis of the complaint. Following an investigation, a written report as to the findings and conclusions will be mailed to you within sixty (60) days of your request.
What are my rights to an appeal? May I bring a civil action if I disagree with a decision?
After a decision is made in a hearing, there are two possible avenues of appeal. First, if the hearing was conducted by a public agency other than the state educational agency, which in Connecticut, is the State Department of Education, you may appeal to the state agency. The State Agency will then review the record, evidence and other items relating to the initial hearing and make a final decision.78
The state agency decision is final unless one of the parties opts for the second avenue, which is to bring a civil action in either the Connecticut Superior Court or the United States District Court for the District of Connecticut. The party who brings such an action must do so within ninety (90) days from the date of the decision of the hearing officer or the State review official.79
Please know that we at Maya Murphy stand ready to be of further service to you and your loved ones. My hope is this publication will narrow the divide between teachers, parents and children. If at any point there is something you don’t understand, call me. If there is a family that can use help, but can’t afford representation, let me know. We want to help every family, and importantly, every child. I can be reached via e-mail directly at JMaya@Mayalaw.com. You can also call my office at (203) 221-3100, or in New York at (212) 682-5700.
Footnotes
37 20 U.S.C.A. §1401(26)(a).
38 20 U.S.C.A. §1401(1)(A).
39 20 U.S.C.A. §1401(2)(A)-(F).
40 20 U.S.C. §1412(5)(A).
41 34 C.F.R. §300.116(b)(1)-(3).
42 34 C.F.R. §300.116(d).
43 34 C.F.R. §300.325(a). 111
44 Conn .Gen. Stat. Ann. §10-76(d)(d).
45 34 C.F.R. §300.148.
46 34 C.F.R. §300.148(c).
47 34 C.F.R. §300.148(d)(1)-(3).
48 34 C.F.R. §300.530(e).
49 34 C.F.R. §300.530(f)(1)(i)-(ii).
50 34 C.F.R. §300.530(b)(1).
51 34 C.F.R. §300.531.
52 34 C.F.R. §500.530(d)(1)(i).
53 34 C.F.R. §300.532(b)(2)(ii).
54 34 C.F.R. §300.532(a).
55 34 C.F.R. §300.533.
56 34. C.F.R. §300.532(b)(2)(i).
57 34 C.F.R. §300.532(c)(2).
58 34 C.F.R. §500.532(5).
59 34 C.F.R §300.507(a)(1)-(2).
60 Conn. Gen. Stat. Ann. §10-76(H)(4).
61 34 C.F.R. §300.504(b).
62 34 C.F.R. §300.508(a)(2).
63 34 C.F.R. §300.508(b)(1)-(6).
64 34 C.F.R. §300.508(d)(1).
65 34 C.F.R. §300.508((e)(i)-(iv).
66 34 C.F.R. §300.510(a)(2).
67 34 C.F.R. §300.510(a)(3)(i).
68 34 C.F.R §300.515(a)(1).
69 34 C.F.R §300.515(c).
70 34 C.F.R. §300.512(a)(1)-(5).
71 34 C.F.R. §300.518(a).
72 34 C.F.R. §300.506(b)(1).
73 34 C.F.R. §300.506(6)(7).
74 34 C.F.R. §300.506(b)(8).
75 Conn. Gen. Stat. Ann. §10-76(h)(f)(2).
76 34 C.F.R. §300.506(c)(1)(i)-(ii).
77 20 U.S.C.A. §1415(e)(2)(D).
78 34 C.F.R. §300.514(b)(1)-(2).
79 34 C.F.R. §300.516(a)-(b).
Under the IDEA, the term “related services” means transportation, and such developmental, corrective, and other supportive services as may be required to assist a child with a disability to benefit from special education.37
The following are examples of related services:
- speech-language pathology and audiology services
- interpreting services
- psychological services
- physical and occupational therapy
- recreation, including therapeutic recreation
- social work services
- counseling services, including rehabilitation counseling
- orientation, mobility and medical services (except that such medical services shall be for diagnostic and evaluation purposes only)
Your child’s need of related services will be determined by your child’s PPT and services shall be implemented as part of their IEP. Your child’s school district is responsible for the costs of implementing related services pertaining to your child’s needs as part of its requirement to provide a FAPE, which, by definition, includes related services.
What is Assistive Technology?
The term “assistive technology device” means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.38 These devices can range from specialized drinking cups to more sophisticated technologies, such as, computers and motorized wheelchairs.
The term “assistive technology service” means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Assistive technology services include:
o the evaluation of the needs of your child, including a functional evaluation of your child in his or her customary environment;
o purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices for your child;
o selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
o coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
o training or technical assistance for your child, or, where appropriate, your child’s family; and
o training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of your child.39
As part of the school district’s obligation to provide your child with a FAPE, assistive technology and services may be required to ensure accommodation of your child’s individual needs. If the school district pays for the device then it owns it. If your child’s device was purchased through Medicaid or private insurance, then it belongs to your child.
Where will my child be placed if he or she requires special education services?
After the PPT develops your child’s IEP, the next step is to determine the specific placement of your child to receive his or her special education. A major component of your child’s placement is that he or she be placed to the maximum extent appropriate with his or her non-disabled peers. The IDEA requires that states receiving federal funds for special education in public or private institutions educate your child with children who are not disabled, and that special classes, separate schooling, or other methods of removal from the regular educational environment pertaining to children with disabilities occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. This is referred to as the “LRE” or the least restrictive environment.40
In placing your child, the local educational agency must ensure that the decision is made in conjunction with a parent and any other individuals who have knowledge about your child, and in conformity with the LRE provision. A child’s placement is to be determined annually in accordance with their IEP and be as close as possible to their home.41 Unless your child’s IEP requires otherwise, he or she should attend the same school as if he or she was not disabled. When selecting the LRE, significant consideration must be given to any potential harmful effects that this placement may have on your child or on the quality of required special education services.42 The PPT must consider assistance of an aide, modified instruction or other supplementary aids and services that will allow for your child to be educated in a regular classroom setting.
First, the PPT should consider the benefits that each potential setting will provide your child. The PPT should not only weigh the academic benefits for each placement scenario but other factors as well, such as communication with teachers and students. Second, the PPT should look at whether placing your child in a regular education setting would lead to disruption. Factors in determining the potential for disruption include the child’s social skills or whether your child’s presence will divert the attention of the teacher away from the other students in the class. Lastly, the PPT may consider the cost of supplementary aids and services required to support your child in the regular classroom setting. The school district, however, cannot use the cost of providing supplemental aids or services as justification for not providing your child with an education in the least restrictive environment.
What if my child is placed in private school or referred to a private school? Am I eligible for reimbursement if my child attends a private school?
Due to the cost of enrolling a child in private school, major issues surrounding reimbursement for such placement may arise between parents and the school district. The school district is obligated to provide your child with a FAPE, which embraces the possibility that enrollment in a private school may be necessary to meet your child’s needs.
If your school district determines that your child’s special education requirements would best be met in a private school, they may make the appropriate referral. Prior to referring your child for private school placement, the local educational agency must develop an IEP for your child. The public school must ensure that a representative of the private school attends this meeting and if they are unable to attend, your child’s public school must use other methods to ensure their participation, such as individual or conference telephone calls.43 The school board must concur with the initial finding that placement in a private institution is necessary and proper and that no state institution is available to meet your child’s needs.44 The school district must pay the reasonable cost of your child’s enrollment. The local educational agency is not required to pay for the cost of your child’s education, including special education and related services, if a FAPE otherwise has been made available to your child and as a parent you have elected to place your child in private school.45
Most issues pertaining to elective private school placement arise between parents and the school district regarding the availability of an appropriate education and the question of financial reimbursement. Disagreements on these matters are subject to the due process procedures, discussed in greater detail below. As a parent of a child with a disability you have the right to enroll your child in private school as you see fit. However, if your public school district concludes that they are able to provide an appropriate education for your child, a dispute over reimbursement is likely to arise.
Enrollment of your child in private school without the local educational agency’s consent or referral may lead to a dispute as to the need for this enrollment in order to provide an appropriate education for your child. If a hearing officer finds that the agency has not made FAPE available to your child and private school placement was appropriate, you will be entitled to full reimbursement for the cost of enrolling your child in a private school.46 Although a hearing officer after a hearing may find that you are entitled to full reimbursement by your school district for the cost of private school placement, reimbursement may nevertheless be reduced or denied.
The following are grounds for when your public school district can reduce or deny reimbursement for enrollment in private school following a hearing officer’s decision that private school placement was nonetheless appropriate. First, if as a parent you failed to inform your child’s public school at the last PPT meeting you attended (prior to removing your child) that you were rejecting the placement proposed by the public school agency to provide FAPE to your child. You must have stated your concerns and intent to enroll your child in private school at public expense. This information must be provided in writing by a parent at least ten (10) business days prior to the removal of your child from his or her public school. Second, if, prior to the removal of your child from the public school, the local educational agency had informed you of its intent to evaluate your child and you failed to make your child available for an evaluation. Lastly, if there is a judicial finding of parental unreasonableness in enrolling your child in private school without the public school’s acquiescence.47 Adhering to the aforementioned requirements will allow the public school district the opportunity to address your concerns and make any necessary changes to your child’s program prior to you removing your child.
Under certain circumstances, the school district will not be entitled to a reduction or full abatement in reimbursing you for the cost of enrolling your child in a private school. If you can show that, (a) the school prevented you from providing them with notice of your decision to remove your child, (b) compliance with the notice requirement would likely have resulted in physical or emotional harm to your child or (c) you are unable to read and write in English, reimbursement will not be reduced or declined for failure to adhere to the notice requirements.
Is my child obligated to adhere to the same disciplinary rules as any other student?
The code of student conduct that your child’s school district has in place applies to all students, including students who receive special education and related services. A more detailed look at disciplinary procedures can be found in the Discipline section of this publication., The following will provide you with an overview of certain obligations that both you as a parent and the school district must fulfill when your child has been disciplined due to behavior that may or may not have been disability related.
Your child’s PPT, of which you are a part, will meet to review the relationship between your child’s behavior and his or her disability. This is known as the “manifestation determination.” The PPT determines if your child’s behavior was caused by or had a direct and substantial relationship to his or her disability. The PPT will also determine whether your child’s behavior was caused by the school district’s failure to implement his or her IEP. If the PPT determines that your child’s disability did not cause the subject behavior, then your child will be disciplined as would any other child who behaved in that particular manner. The manifestation determination must be conducted within ten (10) days of any decision to change the placement of your child due to a violation of the code of student conduct.48
If the PPT finds that your child’s behavior was a manifestation of his or her disability or was due to a failure to implement his or her IEP, then your child may not be removed from their current educational setting. Thereafter, the PPT must conduct a functional behavioral assessment and implement a behavioral intervention plan.49 A functional behavioral assessment looks at why your child behaved the way he or she did by collecting data to determine the possible causes of the problem and identify strategies to address your child’s behavior. The behavioral intervention plan, which is also developed by your child’s PPT, must be designed to teach your child appropriate behaviors and eliminate behaviors that impede on his or her ability to learn, as well as that of other students in your child’s class.
School personnel may remove your child from his or her current educational placement and into another appropriate interim educational setting for a maximum of ten (10) consecutive school days.50 Your child’s IEP determines what an appropriate interim educational plan setting will be.51 Although your child may be removed from his or her current educational setting and into an interim educational setting if it is found that his or her behavior was not a result of their disability, the child still must continue to receive educational services, so as to continue participation in the general education curriculum and to progress toward meeting the goals set out in his or her IEP.52
There are three circumstances permitting your child’s school district to place your child in an interim educational setting for up to forty-five (45) days, irrespective of whether your child’s behavior was found to be a manifestation of his or her disability:
- He or she carries a weapon to school or a school function, or is in possession of a weapon in school or at a school function;
- He or she knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances while at school or a school function; or
- Inflicts serious bodily injury upon another person while at school, or at a school function.
Moreover, a hearing officer may place your child in an interim educational setting if he determines that keeping your child in his or her current placement is substantially likely to result in an injury to your child or to others.53
If you disagree with any decision regarding the placement of your child following a disciplinary finding or manifestation determination, you have the right to initiate a due process hearing.54 Pending a decision by the hearing officer, unless you and the school district agree otherwise, your child will remain in the disciplinary placement until the earlier of the issuance of a decision or expiration of the placement.55 In addition, the hearing officer may return your child to the placement from which he or she was removed if the hearing officer determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.56
The LEA is responsible for arranging the expedited due process hearing and must do so within twenty (20) school days of the date the complaint requesting the hearing was filed. The hearing officer must make a determination within ten (10) school days after the hearing is held.57 Decisions as to an expedited due process hearing pertaining to any of the matters in dispute are appealable.58
The following will set forth in more detail the procedural requirements that a due process proceeding entails, as well as the procedures for other alternative dispute resolution methods that as a parent you have at your disposal.
What is a Due Process Hearing and Alternative Dispute Resolution?
What is a Due Process Hearing?
A due process hearing is a legal proceeding that ensures fairness in the decision-making process regarding your child. As a parent, if you disagree with a proposed or refused action pertaining to your child’s education, you or the school district may initiate a due process hearing to resolve the disagreement.
You may file a due process complaint within two (2) years of the time the school district proposes or refuses to: (a) consider or find that your child is disabled, (b) evaluate your child, (c) place your child in a school program that meets his or her unique individual needs or (d) provide your child with a free appropriate public education (FAPE) that meets your child’s needs.59 If your school district has not provided you with a copy of your rights to bring a complaint, then according to the Connecticut State Department of Education, the two-year limit shall not begin until you receive a copy.60 This procedural safeguard manual may be available on the Department of Education website.61 You must forward a copy of the due process complaint to the appropriate state educational agency, which in Connecticut is the Due Process Unit of the Bureau of Special Education, State Department of Education.62 The complaint must include the name of your child, the address of the residence of your child, the name of the school your child is attending, a description of the nature of the problem, which includes any related facts of which you are aware, and a proposed resolution to the problem.63
The party receiving a request for a hearing has fifteen (15) days from the date of receiving the due process complaint to notify the hearing officer and the other party if they believe the request for the hearing does not include the required information as stated above.64 The hearing officer has five (5) days to make a determination as to the adequacy of the hearing request and whether it meets the necessary requirements. If the hearing officer finds the complaint to be inadequate, you will have to file a new complaint. If the complaint is found to be adequate, your child’s school district must within ten (10) days send to you: an explanation of why the school proposed or refused to take the action raised in the complaint, a description of other options that the PPT team considered and the reasons why those options were rejected, a description of each evaluation procedure, assessment, record or report the school used as the basis for the proposed or refused action and a description of any other relevant facts the school relied upon in its proposed or refused action.65
Within fifteen (15) days of the school district receiving notice of the due process complaint and prior to the initiation of a hearing, the LEA must convene a meeting with you and other relevant members of the PPT team who have specific knowledge of the facts identified in the complaint. The purpose of this meeting is for you as a parent to discuss the due process complaint, so that the LEA has the opportunity to resolve the dispute without having to begin a due process hearing.66 This meeting need not be held if both you and the school district agree in writing to waive the meeting.67 If the LEA has not resolved the issues expressed in the due process complaint to your satisfaction within thirty (30) days following receipt of notice of the complaint, the due process hearing may begin. A final decision must be made by the hearing officer no later than forty-five (45) days after the expiration of the thirty (30) day period or adjusted time-periods if you failed to participate in the resolution meeting in a timely manner.68 A hearing officer may grant specific extensions of time beyond the forty-five (45) day period for certain reasons at the request of either party.69 The hearing must be conducted at a time and place that is convenient for both you and your child. A copy of the final decision must be mailed to each of the parties.
Both you and the school district have the right to be accompanied and advised by counsel during the course of a due process hearing. Both parties may also be accompanied by individuals with special knowledge or training with respect to children with disabilities. Both parties may present evidence, as well as confront, cross-examine and compel the attendance of witnesses. Moreover, you and the school district are precluded from introducing evidence at the hearing that has not been disclosed to the other party at least five (5) business days before the hearing. The hearing will be recorded and upon your request you may be provided at no cost with a written or electronic copy of the hearing, as well as the hearing decision.70
Where will my child be placed during a proceeding with my child’s school?
While a due process proceeding is pending, your child shall remain in his or her current educational setting as of the time the hearing was requested, unless you and the school district agree otherwise. This provision is known as “stay-put.”71 There are, however, a few exceptions to the stay-put provision. If you have filed for a due process hearing with respect to a disagreement over the removal of your child from his or her placement and into an interim alternative education setting for matters related to weapons, drugs or infliction of serious bodily harm, your child will remain in the interim alternative education setting while the hearing is pending. Stay-put does not apply if you are challenging a manifestation determination, as a placement may change during these proceedings.
What is Mediation?
Mediation is an alternative process in which you may resolve a dispute that arises with your school district as it pertains to your child’s special education rights. Mediation is voluntary and both you and the school district must agree to enter into the mediation process. The mediation process must be held at a time and place that is convenient to the parties involved in the dispute.72
During mediation the mediator will be present to help you and the school district resolve any disputes that are pending. If a dispute is resolved through the mediation process, both parties must execute a legally binding agreement that sets forth the resolution. This document is enforceable in court.73 Any discussions that occur during the mediation process, however, are confidential and may not be used as evidence in any subsequent due process hearings or civil actions.74 If the parties are unable to resolve the dispute through mediation, either party may proceed with a due process hearing. 75
The Connecticut State Department of Education, Bureau of Special Education, maintains a list of qualified mediators who are knowledgeable in laws and regulations pertaining to special education and related services. An individual who serves as a mediator may not be an employee of the school district that is involved in the education and care of your child and must not have a personal or professional interest that conflicts with their ability to be objective.76 The state will bear the cost of the mediation process.77 As in the case of a due process hearing, both parties at their own cost may be accompanied by an attorney to help in the mediation conference.
What is an Advisory Opinion?
Another alternative dispute resolution mechanism is an advisory opinion. This is a nonbinding opinion issued by a hearing officer after consideration of a presentation given by both you and the school district. Since an advisory opinion is non-binding you may pursue other avenues to resolve the matter but it may be helpful in settling the dispute without having to go through a formal hearing process or mediation proceeding.
According to the Connecticut State Department of Education, no recording will be made of the advisory opinion process and the confidential opinion may not be used in future proceedings. You and the school district may both be accompanied by an attorney, as well as up to two witnesses that may participate in the advisory opinion process.
What is the Special Education Complaint Resolution Process?
This procedural mechanism allows for a parent to file a written complaint with the Bureau of Special Education regarding allegations that your child’s local educational agency violated federal or state law pertaining to special education. This complaint must be filed within one (1) year of the time in which you believe your child’s school district has violated the law.
Your complaint should state that your child’s school district is failing to follow the IDEA or applicable Connecticut state law enacted to protect children with disabilities and recount the facts that form the basis of the complaint. Following an investigation, a written report as to the findings and conclusions will be mailed to you within sixty (60) days of your request.
What are my rights to an appeal? May I bring a civil action if I disagree with a decision?
After a decision is made in a hearing, there are two possible avenues of appeal. First, if the hearing was conducted by a public agency other than the state educational agency, which in Connecticut, is the State Department of Education, you may appeal to the state agency. The State Agency will then review the record, evidence and other items relating to the initial hearing and make a final decision.78
The state agency decision is final unless one of the parties opts for the second avenue, which is to bring a civil action in either the Connecticut Superior Court or the United States District Court for the District of Connecticut. The party who brings such an action must do so within ninety (90) days from the date of the decision of the hearing officer or the State review official.79
Please know that we at Maya Murphy stand ready to be of further service to you and your loved ones. My hope is this publication will narrow the divide between teachers, parents and children. If at any point there is something you don’t understand, call me. If there is a family that can use help, but can’t afford representation, let me know. We want to help every family, and importantly, every child. I can be reached via e-mail directly at JMaya@Mayalaw.com. You can also call my office at (203) 221-3100, or in New York at (212) 682-5700.
Footnotes
37 20 U.S.C.A. §1401(26)(a).
38 20 U.S.C.A. §1401(1)(A).
39 20 U.S.C.A. §1401(2)(A)-(F).
40 20 U.S.C. §1412(5)(A).
41 34 C.F.R. §300.116(b)(1)-(3).
42 34 C.F.R. §300.116(d).
43 34 C.F.R. §300.325(a). 111
44 Conn .Gen. Stat. Ann. §10-76(d)(d).
45 34 C.F.R. §300.148.
46 34 C.F.R. §300.148(c).
47 34 C.F.R. §300.148(d)(1)-(3).
48 34 C.F.R. §300.530(e).
49 34 C.F.R. §300.530(f)(1)(i)-(ii).
50 34 C.F.R. §300.530(b)(1).
51 34 C.F.R. §300.531.
52 34 C.F.R. §500.530(d)(1)(i).
53 34 C.F.R. §300.532(b)(2)(ii).
54 34 C.F.R. §300.532(a).
55 34 C.F.R. §300.533.
56 34. C.F.R. §300.532(b)(2)(i).
57 34 C.F.R. §300.532(c)(2).
58 34 C.F.R. §500.532(5).
59 34 C.F.R §300.507(a)(1)-(2).
60 Conn. Gen. Stat. Ann. §10-76(H)(4).
61 34 C.F.R. §300.504(b).
62 34 C.F.R. §300.508(a)(2).
63 34 C.F.R. §300.508(b)(1)-(6).
64 34 C.F.R. §300.508(d)(1).
65 34 C.F.R. §300.508((e)(i)-(iv).
66 34 C.F.R. §300.510(a)(2).
67 34 C.F.R. §300.510(a)(3)(i).
68 34 C.F.R §300.515(a)(1).
69 34 C.F.R §300.515(c).
70 34 C.F.R. §300.512(a)(1)-(5).
71 34 C.F.R. §300.518(a).
72 34 C.F.R. §300.506(b)(1).
73 34 C.F.R. §300.506(6)(7).
74 34 C.F.R. §300.506(b)(8).
75 Conn. Gen. Stat. Ann. §10-76(h)(f)(2).
76 34 C.F.R. §300.506(c)(1)(i)-(ii).
77 20 U.S.C.A. §1415(e)(2)(D).
78 34 C.F.R. §300.514(b)(1)-(2).
79 34 C.F.R. §300.516(a)-(b).
