Legal Rights of Children with Epilepsy in School & Child Care

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The Special Education Process for Children with Epilepsy: The Individuals with Disabilities Education Act (IDEA) restrictive. In the least restrictive placements, students with disabilities are educated with students without disabilities, and in the most restrictive placements, they are educated only with other students with disabilities or, as in the case of home teaching, no other students. 4.29Q: How is a special education placement made? A: A group of people knowledgeable about the student, his or her evaluation data, and placement options must make placement decisions. The group must include the student’s parents. 34 C.F.R. 300.116(a)(1); 34 C.F.R. 300.327. Generally, the IEP team determines where the IEP can be implemented. Placement must be determined at least annually and must be based on the student’s IEP. 34 C.F.R. 300.116(b). In making placement decisions, the team must place the student in the least restrictive environment in which the IEP can be implemented. 4.30Q: What is placement in the “least restrictive environment”? A: The IDEA requires that students be placed in the least restrictive environment in which their needs can be met. This means that if possible, a student should be placed in the general education classroom with students who are not disabled. 34 C.F.R. 300.114. The school has an obligation to provide supplementary aids and services to the student and programmatic supports and modifications to school staff in an effort to educate the student in the general education program. 34 C.F.R. 300.114; 300.320(a)(4). Students with disabilities should attend the school they would attend if not disabled, unless their IEPs require some other arrangement, and should attend the school closest to home (“neighborhood school”), unless their IEPs require some other arrangement. 34 C.F.R. 300.116(b)(3) and (c). 34 4.31Q: Does a school district have any responsibility to students to help them be placed successfully in less restrictive settings? A: Yes. Only if the student cannot be educated satisfactorily, even with the use of supplementary aids and services, should he or she be moved to a separate class or school. 34 C.F.R. 300.114. 4.32Q: Must a school district place a student in a general education classroom if it would be harmful to the student? A: No. In determining the least restrictive environment possible for a student, the IEP team must consider any potential harmful effects on the student or on the quality of services that he or she needs. 34 C.F.R. 300.116(d). 34 See discussion of least restrictive environment cases at the end of this chapter for more information. 49
Legal Rights of Children with Epilepsy in School and Child Care 4.33Q: Must a child fail in general education before he or she can be moved to a more restrictive environment? A: No. The IDEA does not impose a requirement that students fail before they can be moved to a more restrictive setting. Rather, the IEP team must determine that, even if supplementary aids and services and program supports and modifications are put in place, the student cannot be educated satisfactorily. 4.34Q: What if a child needs access to a licensed person to administer emergency antiepileptic medication such as Diastat AcuDial (rectally administered diazepam gel) or other health care services at school and the school district tells the parent the child must go to a separate special education school in order to have access to the person and the service? A: Although courts have held that cost can be a consideration when addressing inclusion of students with disabilities into regular education, the Department of Education has made clear that students must be placed on the basis of their abilities and needs and their individual IEPs, not solely on factors such as category of disability, severity of disability, availability of special education and related services, the configuration of the service delivery system, availability of space, or administrative convenience. See Comments to IDEA Regulations, Federal Register, Vol. 71, No. 156, August 14, 2006, p. 46588. See also Letter to Veazey, 37 IDELR 10 (November 26, 2001). Placement of a student with epilepsy into a separate special education school simply to have access to a licensed health care professional who is authorized under state law to administer emergency antiepileptic medication would constitute placement for administrative convenience or placement made because of the way the service delivery system is setup. It would be unlikely to withstand a challenge. However, if there is a school other than the neighborhood school that could meet the student’s needs and provide a person who can administer the medication, such placement will likely be upheld. There is no absolute entitlement to placement in the neighborhood school. See, e.g., Barnett v. Fairfax County Public Schools, 927 F.2d 146 (4 th Cir. 1991); Murray v. Montrose County Sch. Dist., RE-1J, 51 F.3d 921 (10 th Cir. 1995), cert. denied, 516 U.S. 909 (1995). (IDEA creates, at most, a preference, but not a mandate, for neighborhood school placement.) For a detailed discussion of the obligation of schools to ensure that students have access to emergency antiepileptic medication, see Chapter 7. 4.35Q: What happens if a parent disagrees with a placement decision? A: The parent may appeal the decision by requesting mediation or a due process hearing. See Chapter 8 for more information. 50
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AN ADVOCATE’S MANUAL AN ADVOCATE
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User is hereby granted permission t
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CHAPTER TWO What Laws Apply to Chil
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Legal Rights of Children with Epile
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APPENDIX A: CHILD CARE SEIZURE DISO
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Activity Restrictions _____________
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8301 Professional Place, Landover,
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Myoclonic seizures: Seizures in whi
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(Student’s name) needs assistance
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7. FIELD TRIPS AND EXTRACURRICULAR
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Seizure Observation Record Student
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APPENDIX E: SELECTED STATE LAWS ON
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Selected State Laws on School Medic
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Legal Rights of Children with Epilepsy in School & Child Care

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