Wrightslaw - The Special Ed Advocate, July 5, 2001

Highlights: In special issue about FAPE, learn definitions and caselaw about "free appropriate public education" and educational benefit; check new FAPE info page.

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Special Issue: Learning about FAPE

1. Introduction: FAPE

Did you take our new IEP Quiz?

If you read the article and took the Quiz, you learned that to advocate for your child, you need to learn about the law and how to use the law without starting no-win battles with the school.

Few parents and educators read statutes, regulations and cases to learn about legal rights and responsibilities. Most people get information from articles, listserv advice, and informal discussions with others.

Your knowledge will rise no higher than your source. To learn about your legal rights, responsibilities, and get answers to legal questions, you must read and reread the law.

2. Definitions: FAPE

FAPE is an individualized educational program that is designed to meet the child's unique needs and from which the child receives educational benefit.

The legal concept of "FAPE" is shorthand for "free, appropriate public education." FAPE is defined in the Individuals with Disabilities Education Act of 1997 (IDEA) at 20 U. S. C. § 1401(8). (WRIGHTSLAW: SPECIAL
EDUCATION LAW, page 27)

The term is also defined in the Code of Federal Regulations at 34 C.F.R. § 300.13. (WRIGHTSLAW: SPECIAL EDUCATION LAW, page 142)

3. Caselaw: FAPE

To be an effective advocate, you must read cases that are often hard to understand. If you read a case several times and don't understand what the case means, don't give up! You are not alone.

Legal decisions are often hard to understand. When you read caselaw, you will see why you receive conflicting opinions and advice about a legal issue.

KNABLE V. BEXLEY

A few months ago, the U. S. Court of Appeals for the Sixth Circuit issued a well-written decision in Knable v. Bexley about FAPE, IEPs, IEP meetings, procedural and substantive violations, and tuition reimbursement.

The school district appealed to the U. S. Supreme Court.

On June 30, the U. S. Supreme Court announced that it would not hear the district's appeal. The pro-child decision in Knable stands.

BACKGROUND OF CASE

In Knable v. Bexley, the school district evaluated the child and concluded that he had a severe behavior disorder and was eligible for special education services. Despite this, school did not offer an IEP -- for nearly two years.

After Justin was discharged from a psychiatric hospital, the school devised a "plan" to deal with his behavior. However, the Court found that "Justin did almost no work at school, spent a great deal of time in the principal's office, and failed three of his seven subjects." He was disrespectful and disruptive at school.

REQUESTS FOR AN IEP

During meetings with school officials, Justin's parents requested an IEP. They wrote a letter requesting an IEP. Although the school advised them that an IEP was "forthcoming," no IEP was developed. Eventually, the parents began to explore residential placements on their own. They wrote a letter and requested an IEP. The district responded by sending the parents a "draft" IEP.

When the district did not meet with them to develop an IEP, the parents placed their son in Grove School. By the end of seventh grade at Grove School, Justin "received all As and Bs on his report card."

The parents requested a due process hearing. Because the school did not provide Justin with a free appropriate public education (FAPE), the parents requested reimbursement for his tuition at the private school.

MULTIPLE VIOLATIONS OF THE IDEA

In Knable, the court discusses child find, IEPs and IEP meetings, relief available under the IDEA, and standard of review. The Court found that the school district violated several procedural and substantive requirements of the IDEA:

* Bexley failed to convene an IEP conference;
* Bexley's procedural violation denied Justin a FAPE;
* Bexley's "draft" IEP was not reasonably calculated to enable Justin to receive educational benefit;
* Bexley's "draft" IEP did not offer an appropriate program;
* Bexley's "draft" IEP did not include present performance levels, goals and objectives, and special education and related services that would be provided;
* Bexley's "draft" or proposed IEP was not free - the parents were required to to exhaust their insurance coverage before the district would pay for Justin's education.

TUITION REIMBURSEMENT

Citing CARTER, the Court found that for parents to be reimbursed for a private school placement, they must demonstrate -

* that the district did not provide FAPE
* that their unilateral placement was proper

As in CARTER, the district argued that the parents could not be reimbursed because Grove School was not the "least restrictive" placement. They also argued that the private placement was too expensive. The Court disagreed.

The Court noted that "parents who have not been treated properly under the IDEA and who unilaterally withdraw their child from public school will commonly place their child in a private school that specializes in teaching children with disabilities. We would vitiate the right of parental placement recognized in Burlington and Carter were we to find
that such private school placements automatically violated the IDEA's mainstreaming requirement."

Download, print and read this well-written decision.

4. New at Wrightslaw - FAPE Page

If you have a child with a disability, your child is entitled to a free appropriate public education (FAPE). To answer questions about FAPE, we built a special FAPE page with links to articles, law and regulations, and other information about FAPE.

Visit our new Topics page for information about dozens of topics:

5. Get answers to questions with Wrightslaw: Special Education Law

Special education law is confusing to most parents, educators, and even to many attorneys. Although parents represent their child's interests, few parents understand their rights and responsibilities. Many teachers receive inaccurate information about the law.

What does the law say about evaluations and reevaluations? Test procedures? Eligibility?

What does the law say about Individualized Educational Programs (IEPs) and IEP teams? IEP Goals, objectives, benchmarks? What does the law say about inclusion? Least restrictive environment?

What does the law say about discipline? Positive behavioral intervention plans? Interim alternative placements? Manifestation Review Hearings? What does the law say about parent notice? Independent educational evaluations? Tuition reimbursement? Mediation? Due process?

Where can you get answers to your questions about special education law? Look it up in Wrightslaw: Special Education Law!

Wrightslaw: Special Education Law helps you find answers to your questions
about the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Family Educational Rights and Privacy Act.

Wrightslaw: Special Education Law is designed to to meet the needs of
school psychologists and educational diagnosticians, advocates and attorneys, school administrators - and especially the needs of the parents and teachers who are working in the trenches.

Wrightslaw: Special Education Law has been endorsed by university professors, disabilities groups, educators, parents, child advocates, and attorneys.

The Deluxe Edition comes with a Legal Companion CD-ROM that includes:

* Law Book as one PDF File
* Law Book, by Chapter for easier research
* Federal Register, March 12, 1999 (Vol. 64, No. 48). Includes IDEA Regulations with extensive explanations, commentary and attachments.
* IDEA Compliance Report, "Back to School on Civil Rights," published by the National Council on Disability. Hundreds of hyperlinks.

Click here to Order Wrightslaw: Special Education Law from our 24 hour 7 days a week online store!

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