OSEP and OSERS Issue Joint “Dear Colleague” Letter Urging School Districts to Work With Jails to Ensure Pupils are Located and Evaluated

By February 2, 2015 News No Comments

The Office of Special Education Programs and the Office of Special Education and Rehabilitative Services recently issued another joint “Dear Colleague” letter, urging school districts to work with jails to ensure students are located and evaluated. The letter reinforces the need for LEAs and other public agencies responsible for students and responsible to parents of students who reside in correctional and detention facilities, jails, and prisons, to be provided with the rights guaranteed to them under IDEA.

Outside a specific exception, all procedural and substantive IDEA protections apply to these students and their parents. These protections include being appropriately and adequately identified for the provision of special education and related services and to consistently be provided FAPE.

Additionally, these students are guaranteed the disciplinary safeguards under IDEA, which entitle them to the right to a manifestation determination upon 11 days of disciplinary exclusion. This applies regardless of whether the student is disciplined in the facility or removed to a more restrictive setting.

The letter discusses the responsibilities placed on varying levels of agencies that serve these students, while also acknowledging that attaining compliance with IDEA requirements for these agencies is complicated:

(1) by the fluid nature of these children transferring in and out of such facilities, and (2) given the absence of collaboration that exists between the LEA responsible for implementing the state’s child-find duties and the agencies responsible for providing the students with FAPE.

The responsibilities that fall on the SEA include ensuring: (1) that annual performance determinations are made on correctional facilities operating as their own LEAs; (2) ensuring that students with disabilities in these facilities are included in district-wide assessments; and (3) ensuring that personnel providing special education and related services are appropriately and adequately prepared and trained.

LEAs, public agencies, correctional facilities, and other noneducational public agencies also have accountability to these students under federal law. These responsibilities include ensuring that they have child find policies and procedures in place to identify and evaluate students in need of services who are in correctional facilities, and that this process is extended to students who have never been identified with a disability before entering the facility.

The letter strongly encourages SEAs, LEAs, and other public agencies and correctional facilities serving students with disabilities to review their policies, procedures, and practices to verify that they are in compliance with IDEA requirements and, if not, to ensure that such noncompliance is corrected in a timely manner.

Contact any of our student/special education practice group attorneys with your inquiries regarding application of the DCL to your school district.

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