Ensuring FAPE for those students inside justice system

Ensuring FAPE for those students inside justice system

(District of Columbia) Correctional facilities and local educational agencies charged with oversight of students with disabilities within the juvenile justice system frequently fail to meet federal requirements under IDEA, according to a new brief issued by the U.S. Department of Education.

Managers of the secure settings where the youth are housed often lack a consistent and appropriate system for identifying students with disabilities – a key mandate of the Individuals with Disabilities Education Act.

There is also evidence that the overriding concern in providing special education services in the juvenile justice system is the availability of staff and the security of the classroom. Thus, the requirement that learning be provided in the least restricted environment is often ignored.

Finally, students with disabilities have the right to an individualized education – something that is challenging for a correctional facility to keep up with, especially when it comes to including parents and guardians into the decision-making process.

“Research has consistently demonstrated that access to high-quality education for youth is critical to their long-term success as adults,” the report from the American Institute for Research began. “Youth in juvenile justice secure care facilities, however, too often  do not  have access to the high-quality education and related supports and services that they need. This is particularly true for youth with disabilities residing in such facilities.”

There are an estimated 60,000 youth under the age of 21 that are confined in correctional facilities national on any given day. As many as one third could qualify under IDEA for special services, according to estimates made from researchers at St. John Fisher College in 2010.

The new briefing paper from the Department of Education, issued this week, builds on prior guidance that makes the fundamental point that any juvenile justice secure care facilities that receive federal funding, like all other public schools, must comply with federal civil rights laws.

That is, those that prohibit discrimination based on race, color, national origin, sex, religion and disability – meaning the criminal justice system must comply with the provisions of FAPE.

There is special emphasis on the requirements of states to ensure these provisions are addressed.

“A state agency receiving Title I, Part D, Subpart 1 funds must provide  an assurance that it will work with youth with disabilities to meet an existing IEP and notify the local school district if a child or youth intends to return to the local school and is identified as in need of special education  services while in a juvenile justice secure care facility,” the report’s author said.

Among the many challenges facing juvenile justice system is the requirement that they help identify students that might have a learning disability.

IDEA’s Child Find rule requires that all age-eligible students with disabilities, including  those in state and local juvenile correctional facilities, who are in need of special education  and related services be identified, located, and evaluated, regardless of the severity of their disability.

As set of suggested best practices would include:

  • intake policies and practices to identify youth who are already identified  as having a disability and
  • implementation of a multi-tiered  system of supports  (MTSS).

MTSS is a schoolwide approach that addresses the needs of all students, including struggling learners and students with disabilities, and integrates assessment and intervention within a multilevel instructional and behavioral framework to maximize student achievement and reduce problem behaviors. With a multitiered instructional framework,  schools identify  students at risk for poor learning outcomes through universal screening, including  those who may have a specific learning disability.

The research team found another problem area surrounding ‘least restrictive environment’ – an important tenet of IDEA intended to keep special education integrated with mainstream services are much as possible.

“Facilities with inadequate staffing may attempt to provide special education services solely in an inclusionary setting even though the student’s most recent IEP indicates that services provided  in a separate setting are appropriate for the student, outside of the general education environment for part or all of the school day,” the authors said.

“Similarly, facilities with an insufficient number of special education  teachers may attempt to place all students with disabilities in a resource room or other separate setting because there is insufficient staff to collaborate with the general educator in the regular classroom setting,” they explained.

Overall, placement decisions under IDEA “must be based on a youth’s individual needs and may not be based solely on factors such as availability of special education  and related services (including staffing, availability of space, or administrative convenience),” the report said.

Failure to follow IEPs is another major area of concern within the juvenile justice system.

Because of the complex family circumstances of many students in the juvenile justice system, special education providers and facility managers find it difficult to meet IDEA’s mandate to include parents or guardians in the development of the IEP. Federal officials pointed out that under IDEA, parents have a right  (among  other prerogatives) to participate along with appropriate agency  officials  as members of the team that develops, reviews, or (if appropriate) revises their student’s IEP.

To help make that connection, the report authors remind LEAs that parents or their representatives can be offered alternative means of meeting such as videoconferences and conference calls.

There are also provisions in IDEA for youth to be represented by a surrogate parent in the following  circumstances:

  • when no parent, as defined in IDEA, can be identified; when the parent cannot be located after reasonable  efforts; 
  • when  the child  is a ward  of the State;
  • or when  the child  is an unaccompanied, homeless youth as defined in the McKinney-Vento Homeless Assistance Act.

It is important to note that the surrogate parent may not be an employee of the state educational agency or the local educational agency, or any other  agency  that  is involved in the education or care of the student; must have no personal or professional interest that conflicts with the interest of the student; and must have knowledge and skills that ensure adequate representation of the student. Surrogate parents, including temporary surrogate parents, are considered the student’s “parent” for special educational purposes.

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