June 2013 Newsletter: Getting Special Education Enrollment Right From the Start

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Getting Special Education Enrollment Right From the Start

Charter schools typically have more leeway than traditional district schools to develop their own operating rules and programs. But the independence granted charter schools provides no exception to the laws covering the education of students with disabilities. The key federal laws affecting K–12 education, the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act, establish requirements for providing access to education and services for students who need special education. One of the key challenges for charter schools, as with other public schools, is how to respond to a student with disabilities whom the school is unprepared to serve with appropriate education. This feature of the National Charter School Resource Center's monthly newsletter focuses on how the law applies under such circumstances, the charter school's responsibilities, and resources are provided to further pursue the topic.

Enrollment by charter schools of students with disabilities was the subject of a June 2012 report by the Government Accountability Office (GAO). Additional Federal Attention Needed to Help Protect Access for Students With Disabilities found that the 8 percent enrollment nationwide of students with disabilities in charter schools for 2009–10 trailed traditional district schools by 3 percentage points. The report stated that what accounted for the disparity was not clear and that that in six states, including Ohio and Pennsylvania, charter schools had higher percentages of students with disabilities than traditional district schools. The report also noted that the U.S. Department of Education's Office for Civil Rights (OCR) was involved in "several broad compliance reviews" related to students with disabilities and charter schools, including issues of recruitment, admissions, and provision of free appropriate public education. The U.S. Department of Education's (ED's) Office of Innovation and Improvement response to the GAO report stated that "the small sample size and the relatively small differences identified between charter schools and other public schools" make it difficult to draw conclusions, but that ED is committed to addressing the issues and that grant opportunities are "likely to continue to include competitive and invitational priorities for applications that propose to improve achievement for students with disabilities and promote diversity."

An extensive network is in place to help protect the rights of students with disabilities, which includes the U.S. Department of Health and Human Services State Protection and Advocacy Systems. Offices exist in every state, providing a range of assistance that includes legal aid. The program is supported by the organization's membership association, the National Disability Rights Network. Diane Smith Howard and Ron Hager, National Disability Rights Network attorneys, offered information in a Resource Center webinar about procedures and best practices when students with disabilities seek enrollment in a charter school. Although federal law takes precedence in matters of access to education for students with disabilities, state laws and regulations can guide specific elements of how special education is provided and funded. And for charter schools with federal Charter Schools Program grants, specific rules might apply in addressing special education issues. Where questions arise for charter schools with such grants, the school should contact the federal Charter Schools Program.

Exceptions exist, but in general, a charter school that is its own local education agency (LEA) is responsible for developing and implementing its special education program. A charter school that is part of an LEA must follow the law like any other school, but it comes under the umbrella of the LEA and is entitled to the support and resources available to any other school in the LEA. So a school's capacity to fulfill its responsibility depend on its LEA status for special education, its resources, and the needs of a particular student. In 2011, according to a data table from ED's National Center for Education Statistics, there were 2,359 charter school LEAs, about 44 percent of the total number of charter schools. What remains constant is that a student who is eligible for special education services has the right to receive those services, regardless of the status of the school or the severity of a student's needs. Special education students have the right to free and appropriate public education (FAPE) in the least restrictive environment (LRE), meaning that the educational program of the student is integrated into the regular program to the maximum extent appropriate. The right covers students from age 3 to 21.

Among the key questions for charter schools is how to best respond when a special education student seeks to enroll in the school, particularly a student with extensive needs. There might be a student whose behavior requires that a separate classroom be available for specific instruction. There might be a student who requires specialized transportation to get to school. There might be a student who requires certain types of speech or physical therapy. Charter schools and traditional district schools face many of the same challenges to serve students with special education needs, according to Howard and Hager, whose work has involved both types of schools. "Even though a student has intensive needs doesn't automatically mean they automatically go to a segregated setting," Hager said.

Following Key Procedures Provides Path to Special Education Placement Success

Following prescribed procedures provides a clear route for charter schools to meet their responsibility under the law and the needs of special education students, according to the NDRN attorneys. It is critical to take the right approach from the outset when addressing enrollment of students with special education needs. "During those initial enrollment conversations with parents, it's really important to be very clear about what the school's policies and procedures are, that the IDEA and 504 apply, and that the child is welcomed," Howard said. A school should first determine the child's needs. The next step is to develop a program, then determine the best place for that program to be provided, and then figure out how that plan is to be implemented. "Sometimes if you are very focused on what resources are available, you may go backwards," Howard said. "You may start with the resources that are available. That's the kind of progression that's likely to cause a problem." In the case of a virtual charter school, the same standard would apply about determining the student's needs and the appropriateness of the placement, and then making sure the services are provided.

A charter school cannot, for example, skirt its responsibility by unilaterally counseling parents to find a more appropriate setting elsewhere. Nor can a school's admission lottery be used to discriminate against students with special education needs. A special education student's placement in a program or removal from a program is the responsibility of the team of people, including the parents, who are knowledgeable about the program and the needs of the student. A student's need for services, including specialized transportation or building access ramps, cannot be a reason to deny enrollment. A student's individualized education program (IEP) cannot be altered so that it fits what is available at the school instead of what the student needs. Also, parents or school personnel may ask at any time that a child be evaluated for eligibility for special education under IDEA, which identifies the specific conditions that qualify. A student with disabilities cannot be required to fail in school to demonstrate eligibility for special education. Nor can a student be required to keep trying different techniques to progress before obtaining an evaluation for eligibility for special education services. If a student arrives with an IEP, the school is required to abide by the IEP unless the school's IEP assessment team determines changes to the program are appropriate. "You can't take services off an IEP without an evaluation showing that there's no longer a need," Howard said. "Services can't just sort of magically disappear." Parental consent is required to alter services. Sometimes disagreements arise. "The goal is to have consensus," Hager said. "But there are going to be cases where it's not going to happen." A due process hearing, a facilitated IEP meeting, or some other formal structure with more evaluative information can provide the means to settle the conflict. "You have to make sure that if you have a disagreement, you make the recommendation and give the parent the right to challenge it," Hager said.

Accommodating a special education student can involve academic and behavioral issues. "If a child has a behaviorally related disability, it makes sense to have behavioral goals in the IEP and to provide behavioral services," Howard said. "Instead of waiting until there's a problem, it probably makes sense to have the IEP team look at the needs of the child and develop goals and objectives proactively."

Specific rules for discipline apply with special education students. For example, removal of a special education student from a program for more than 10 days requires that the IEP team determine the relationship of the student's action to the disability and implementation of the student's IEP. If the misconduct is not substantially related to the disability, the school can impose discipline measures as it would with any other student. If the problem is related to the IEP, there should be a behavioral assessment and intervention to prevent recurrence of the problem and the student would return to the classroom. Exceptions exist even if the problem is related to the disability. For example, if a student carries or possesses a weapon, knowingly possesses or uses illegal drugs, or has inflicted serious bodily injury, the student can be removed to an interim alternative educational setting for not more than 45 school days. The student still, however, needs to be provided with special education services. "Oftentimes, what turns out to be the case is that it's much more complicated to serve a child outside of school," Howard said. "You need to still make sure that the child is having access to the whole general curriculum, not just math and reading, and also related services, including speech therapy and so forth."

It may be that a student's needs and the ability of a school to meet those needs cannot be reconciled. A school is empowered to decide whether it can appropriately provide for a special education student or whether another program elsewhere is more appropriate. Howard said some charter schools have prepared to meet the needs of special education students and provide for unusual circumstances where a single student with highly specialized needs could jeopardize the school's stability. For example, a charter school placement team could arrange for a student to attend a program elsewhere if that is the most appropriate option, but the school could be required to pay for the program. If the charter school is part of an LEA, often the LEA will provide special education services for the charter students or a program for the student to attend elsewhere. "It's okay to move the child into another program so long as the placement team has made that decision and the decision has not been made unilaterally," Howard said. "These are some of the same problems that we encounter in regular public schools all the time," Howard said. "It's the same financial and other resource constraints that bring up these problems."


Federal Charter Schools Program Opens Start-Up and Dissemination Grant Competitions

The U.S. Department of Education's Charter Schools Program (CSP) announced two charter school grant competitions totaling $2 million to support school planning and start-up and for existing schools to disseminate programs, with an application deadline of July 12.

The CSP Non-SEA Planning, Program Design, and Implementation competition provides grants directly to charter school developers to plan, design, and complete the initial implementation of their school. Total estimated program funding is $1 million, with five awards expected.

The CSP Non-SEA Dissemination competition provides grants directly to existing charter schools, which can use the grants to assist other schools in adapting their program or aspects of their program, or to disseminate information about the charter school. Total estimated program funding is $1 million, with five awards expected.
Read more.

Resource Center Webinar Series Provides Facilities Development Roadmap

The National Charter School Resource Center on June 19, 2013, hosted the last of a four-part webinar series designed to provide information critical to the complex task of designing, financing, and implementing charter school facilities projects.

The first webinar, Great School Spaces, focused on innovative charter school facilities and included images of schools and interior design elements.

In Planning for Your Charter School Facility, veteran charter school facility planners discussed their experiences and tools for choosing sites and selecting design options.

Financing Your Charter School Facility identified and explained financing sources and provided a guide for managing the financing process.

The final webinar, Charter School Predevelopment and Construction Management, focused on how to select and work with a project development team.

The Resource Center also will host an in-person session about facilities development at the 2013 National Charter Schools Conference, which is being held in Washington, D.C., from June 30 to July 3, 2013.

Arizona Partnership of Charter Association and State Board Focuses on School Performance Management

A Resource Center webinar on June 13, 2013, focused on the partnership of the Arizona Charter Schools Association (ACSA) and the Arizona State Board for Charter Schools to develop the Arizona Growth Model and the Academic Performance Framework.

Eileen Sigmund, president and CEO of the ACSA, and DeAnna Rowe, executive director of the Arizona State Board for Charter Schools, discussed how their partnership has strengthened charter schools' statutory purpose of improving student achievement and providing parents a choice in Arizona.

Topics covered included how the Arizona Growth Model was incorporated into the state's A-F academic accountability system and how the partnership between the two organizations works. Read more.

Virginia Law Identifies Charters As Potential Operators of District Schools Denied Accreditation

A Virginia law set to take effect in July 2013 creates a statewide entity called the Opportunity Educational Institution (OEI) that is empowered to take over district schools that have been denied accreditation and initiate an improvement program, with charter schools identified as an option for doing the work. Read more.

Illinois Action Allows Charter Schools Near Bases to Reserve 33 Percent of Seats for Military Families

A bill passed by the Illinois state legislature and set to become law July 1, 2013, will allow charter schools in a district that includes a federal military base to set aside up to 33 percent of its enrollment for students with parents who are assigned to the base. Read more.

Office of Hawaiian Affairs Awards Native Charter Schools $1.5 Million

Charter schools in Hawai'i that focus on Native Hawaiian education have been awarded $1.5 million from the Office of Hawaiian Affairs (OHA), according to a 2013 announcement by the organization. Read more.


June 30–July 3, 2013: National Charter Schools Conference in Washington, D.C.

October 21–24, 2013: NACSA Leadership Conference in San Diego, California.


Building the Capacity of Charter Schools: Effectively Serving Students With Disabilities
This 2012 Resource Center conference covered key topics related to charter schools and delivery of special education services. The conference coincided with the release of Special Education Start-Up and Implementation Tools for Charter School Leaders and Special Education Managers, a 75-page guide that provides critical information in 15 key areas to help serve students with disabilities, including sample job descriptions, reporting forms, and file checklists.

Authorizer SPED Rubric for Local Education Agencies (LEAs)
This rubric for LEAs was developed to help authorizers build their capacity to support development and maintenance of high-quality special education programs in charter schools. The rubric covers key considerations for authorizers as they review the capacity of charter schools in areas such as special education planning, staff, facilities, and funding.

Special Education Start-Up and Implementation Tools for Charter School Leaders and Special Education Managers
This guidebook provides key information about major laws and policies covering special education to help orient charter schools about their responsibilities toward students with disabilities. Links to helpful resources and tools are provided, along with sample special education job descriptions, performance evaluation forms, and file checklists.

Charter Schools and the Special Education Cooperative Model
This 2011 National Charter School Resource Center newsletter focuses on an American Institutes for Research study of the special education cooperative model, drawing on the experience, methods, and operating context of eight cooperatives. Included are descriptions of cooperatives, research references, and resources to further understand the issues and consider the value of implementing or adapting the model.

Additional Federal Attention Needed to Help Protect Access for Students With Disabilities
This June 2012 report from Government Accountability Office focuses on the extent to which charter schools enroll students with disabilities. The report states that charter schools enroll a "lower percentage of students with disabilities than traditional public schools, but little is known about the factors contributing to the differences." The report covers charter schools' outreach to students with disabilities and the services they provide, as well as the roles of the U.S. Department of Education and state education agencies, as well as those of others with oversight responsibilities. The report includes comparisons between charter and district school enrollments by disability type and summarizes factors that may influence enrollments of these students in charter schools. The research included visits to 13 charter schools and three states.

Special Education (Minnesota State Evaluation Report)
This March 2013 report from the Minnesota Office of the Legislative Auditor evaluates special education delivery in the state. The proportion of public school students receiving special education has increased from 11.9 percent in 2000 to 13.6 percent in 2011, with school district spending of state special education funds increasing 22 percent to $1.1 billion during the same period. The report includes information about special education cooperatives, the role of charter schools, funding trends, and compliance.

New York State Special Education Enrollment Analysis
This November 2012 report from the Center on Reinventing Public Education compares and analyzes enrollment of special education students in certain districts and charter schools in New York. The report provides comparisons on a variety of factors, including school type and authorizer. The report's findings include that "charter middle and high school enrollments are indistinguishable from district enrollments" of special education students, and "fewer students with disabilities enroll in charter elementary schools [than in] district-run elementary schools." The report states that enrollments involve many variables and that a "qualitative investigation into the real-life experiences of students with disabilities and their families in both charter and district-run schools" is "critical to understanding how policies and oversight practices can best promote equitable access to all public schools."

U.S. Department of Education, Office of Special Education Programs' IDEA website
This website provides extensive resources related to IDEA and its implementation.

This website of the U.S. Department of Justice provides a wide range of information about federal law governing people with disabilities, including information about the department's role in enforcing law providing for school access.

Protecting Students With Disabilities
This section of the website for the U.S. Department of Education's Office for Civil Rights provides answers to key questions about Section 504 of the Rehabilitation Act and the education of children with disabilities.

This website of the federal government offers comprehensive information on disability programs and services in communities nationwide, including links to resources from federal, state, and local government agencies; academic institutions; and nonprofit organizations.

National Alliance for Public Charter Schools Model Charter School Law
This section of the National Alliance for Public Charter Schools website compares its model law with the laws in each state and includes an evaluation of how clearly the law conveys responsibility for providing special education and funding for "low-incident, high-cost services."

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