Special Education
Mark Smith
Ohio Department of Education

From a presentation for the 2023 NAME Annual Conference, Dallas, Texas – October 23, 2023

Special Education Objectives

1. Explain Special Education laws at the federal and state level.
2. Identify components of the Individuals with Disabilities Education Act (IDEA) as they relate to school-based Medicaid programs.
3. Compare and contrast programs and services provided through Special Education and Medicaid.

Federal Programs

U.S. Department of Education

• Establishes policy for education.
• Administers and coordinates most federal assistance to education.
• Assists the president in executing education policies for the nation.
• Implements laws enacted by Congress.

Office of Special Education and Rehabilitative Services (OSERS)

• Understands the many challenges still facing individuals with disabilities and their families.
• Committed to improving results and outcomes for people with disabilities of all ages.
• Supports programs that serve millions of children, youth and adults with disabilities.
• Two Main Components:
  • Office of Special Education Programs (OSEP)
  • Rehabilitation Services Administration (RSA)

Office of Special Education Programs (OSEP)

• Dedicated to improving results for infants, toddlers, children and youth with
  disabilities, ages birth through 21.
• Provides leadership and financial support to assist states and local districts.
• Administers IDEA.
• Authorizes formula grants to states under Part B of the IDEA and to lead
  agencies for the infants and families program under Part C of the IDEA.
• Authorizes discretionary grants under Part D.

IDEA

• Federal law that makes available a free and appropriate public education (FAPE) to eligible children with disabilities throughout the nation and ensures special education and related services to those children.
• Governs how states and public agencies provide early intervention, special education, and related services.
• Authorizes formula and discretionary grants.

IDEA Statute (Law)

Statute:

Statute is a law that authorizes formula and discretionary grants. IDEA has four parts:

• Part A: General Provisions
• Part B: Assistance for All Children with Disabilities
• Part C: Infants and Toddlers with Disabilities
• Part D: National Activities to Improve Education of Children with Disabilities

IDEA Law Part B

Part B:

• Regulation of services for children and youth ages three to 21 years
• State Educational Agency (SEA) is lead agency
• Parents may not incur costs
• Interagency collaboration
• Individual Educational Plan (IEP)

State Performance Plans/
Annual Performance Reports (SPP/APR)

• IDEA requires each state to develop an SPP/APR that evaluates the state’s efforts to implement the requirements and purpose of the IDEA and describes how the state will improve its implementation.
• Part B: 17 indicators
• Part C: 11 indicators
• Each year, states must report the progress or slippage for each of the indicators in an APR.
• Levels of Determination – What is your state’s determination?

Case Law and Education

Case Law and Legislation

• 1974 Public Law (P.L.) 93-380, Education Amendments of 1974
  • “Early Warning” legislation for P.L. No. 94-142
• 1975 Enacted P.L. 94-142, the Education for all Handicapped Children Act of 1975 (EAHCA).
  • FAPE for all children with disabilities
• After P.L. 94-142, Education of the Handicapped Amendments
  • FAPE, procedural safeguards, Least Restrictive Environment (LRE), non-discriminatory evaluation, IEP

FERPA vs. HIPAA

FERPA

1974 Family Educational Rights and Privacy Act (FERPA) Section 444 of General Education Provision Act, 34 CFR Part 99 (required education records and students’ personally identifiable information to remain confidential and private).

HIPAA

1996 Health Insurance Portability and Accountability Act (HIPAA) (overhaul of third party payer system mostly for health care and implementation of insurance policy).

FERPA/IDEA Crosswalk

Joint Guidance on the Application of FERPA and HIPAA

NAVIGATING SPECIAL EDUCATION REGULATIONS – IDEA

§300.17 FAPE

Special education and related services that:

• Are provided at public expense, under public supervision and direction, and without charge.
• Meet the standards of the SEA.
• Include an appropriate preschool, elementary school, or secondary school education in the state involved.
• Are provided in conformity with an IEP that meets the requirements of §300.320 through §300.324.

§300.8 Child with a Disability

Has been evaluated according to §300.304 through 300.311 as having:

• Intellectual disability
• Hearing impairment (including deafness)
• Speech or language impairment
• Visual impairment (including blindness)
• Serious emotional disturbance
• Orthopedic impairment
• Autism
• Traumatic brain injury
• Other health impairment
• Specific learning disability
• Deaf-blindness
• Multiple disabilities
• And needs special education and related services

§300.9 Consent

Parents must:

• Be fully informed of all information relevant for which consent is sought in his/her native language or mode of communication.
• Understand and agree in writing to activity for which consent is sought including list of records that will be released and to whom.
  • Understand consent is voluntary and may be revoked at any time.
  • Revocation is not retroactive and does not negate an action that occurred after consent was given and before consent was revoked.
  • The public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.

§300.15 Evaluation

Procedures used in accordance with §300.304 through §300.311 to determine if a child has a disability and the nature and extent of the special education and related services the child needs.

§300.22 IEP

A written statement for a child with a disability that is developed, reviewed, and revised in accordance with §300.320 through §300.324.

§300.23 IEP Team

A group of individuals described in §300.321 who are responsible for developing, reviewing, or revising an IEP for a child with a disability.

§300.28 LEA

Any state-recognized public board of education or public authority legally constituted for administrative control or direction of, or to perform a service function for public elementary or secondary schools in any political subdivision of a state, or combination of school districts/counties recognized by state as an administrative agency for public elementary or secondary schools.

§300.30 Parent

• Biological or adoptive parent of a child.
• Foster parent, unless state law prohibits.
• Guardian generally authorized to act as parent or make educational decisions for the child (but not the state if child is a ward of the state).
• Individual acting in place of biological or adoptive parent (grandparent, stepparent, other relative) with whom child lives, or who is legally responsible for the child’s welfare.
• Surrogate parent who has been appointed in accordance with §300.519.

§300.34 Related Services

Transportation and such developmental, corrective, and other support services as are required to assist a child with a disability to benefit from special education and includes:

• Speech-language pathology and audiology services
• Interpreting services
• Psychological services
• Physical and occupational therapy
• Recreation including therapeutic recreation
• Early identification and assessment of disabilities in children
• Counseling services including rehabilitation counseling
• Orientation and mobility services
• Medical services for diagnostic or evaluation purposes
• School health services
• School nurse services
• Social work services
• Parent counseling and training

§300.39 Special Education

• Specially designed instruction.
  • Adapting, as appropriate to the needs of the child, the content, methodology, or delivery of instruction.
• No cost to the parents, to meet the unique needs of a child with a disability, including:
  • Instruction in the classroom, the home, in hospitals and institutions, and other settings; and
  • Instruction in physical education.

§300.41 SEA

The State Board of Education or other agency or officer responsible for the state supervision of public elementary and secondary schools, or an officer or agency designated by the Governor or by state law.

§300.42 Supplementary Aids and Services

Aids, services, and other supports provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.

§300.101 FAPE Requirements

• Available to all children ages 3-21.
• Each state must ensure:
  • FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade and is advancing from grade to grade.

§300.111 Child Find

Child Find

• All children with disabilities residing in the state, including children with disabilities who are homeless children or are wards of the state, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and
• A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

§300.154(d) Methods of Ensuring Services

Children with disabilities who are covered by public benefits or insurance.

• Must obtain parental consent consistent with §300.9.
• The regulations have two basic requirements:
  • Notification to parents regarding their rights before benefits are accessed and annually thereafter.
  • One-time written consent which specifies the parents’ understanding and agreement of accessing public benefits.

Prior to accessing a student’s or parent’s public benefits or insurance for the first time, and annually thereafter, the school district must provide written notification consistent with §300.503(c) to the student’s parents that includes:

• A statement of the parental consent provision in paragraphs (d)(2)(iv)(A) and (B) of this section;
• A statement of the no-cost provisions in paragraphs (d)(2)(i) through (iii) of this section;
• A statement that the parents have the right to withdraw their consent to disclose their child’s personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance at any time; and
• A statement that the withdrawal of consent or refusal to provide consent to disclose personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.

Prior to accessing the student’s or parent’s public benefits or insurance for the first time, and after providing notification to the student’s parent, the school district must obtain written, parental consent that specifies:

• The personally identifiable information that may be disclosed such as records or
  information about the services that may be provided to the student;
• The purpose of disclosure, such as for purpose of billing for services;
• The agency to which the disclosure may be made; and
• That the parent understands and agrees that the school district may access the parent’s or student’s public benefits or insurance to pay for services under part 300.

How are Medicaid and Special Education Different?

How are Medicaid and Special Education Similar?

What We Have Learned

• APR: Annual Performance Report
• FAPE: Free and Appropriate Public Education
• FERPA: Family Educational Rights and Privacy Act
• IDEA: Individuals with Disabilities Education Act
• IEP: Individual Educational Plan
• LEA: Local Educational Agency
• LOD: Level of Determination
• OSEP: Office of Special
• Education Programs
• OSERS: Office of Special Education and Rehabilitative Services
• RDA: Results Driven Accountability
• RSA: Rehabilitative Services Administration
• SEA: State Educational Agency
• SPP: State Performance Plan

Education Resources

• IDEA
• U.S. Department of Education
• National Alliance for Medicaid in Education Inc.
• SEA
• Local Special Education Director