U.S. DOE Guidance on Charter School Obligations to Students with Disabilities

February 23, 2017

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On December 28, the U.S. Department of Education (DOE) issued a new guidance package developed by the Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS). The guidance package contains:

Learn more about Section 504 and IDEA guidance, below.

Section 504 Guidance

In this guidance, OCR reiterated that Section 504 prohibits public charter schools and other recipients of Federal financial assistance from discriminating against persons with disabilities in recruiting and enrolling students.

Among other issues, the guidance addressed questions concerning discrimination in charter school recruitment, admissions and enrollment practices. Charter schools are not permitted under Section 504 to ask a prospective student whether the student has a disability, except under certain circumstances. These limited exceptions include when:

  1. The charter school is using that information solely to enhance the chances for a student with a disability to be enrolled; or
  2. A school is specifically designed to serve the educational needs of students with a particular disability and the school asks prospective students if they have that disability.

The guidance also provides examples of impermissible pre-enrollment inquiries. These include application or interview questions about the presence of a disability, whether a student has an IEP or 504 plan, or whether a student requires transportation or other services. A school may ask a student whether he or she has a disability upon enrollment, in order to ensure that the school provides Free and Appropriate Public Education (FAPE) to that student.

In order to ensure compliance with Section 504, CCSA recommends that all charter schools use a two-step enrollment process. This two-step process includes an initial application, on which the school would collect only basic information required to determine the student's eligibility for enrollment or participation in the admissions lottery, and an enrollment packet, which can be used to collect the detailed information necessary to enroll and serve the student after he or she is admitted to the school.

The guidance also clarified that Section 504 applies to all of a charter school's disenrollment practices, such as expulsions and other involuntary permanent removals of a student from a school. Charter schools must comply with applicable legal requirements under Section 504, IDEA and related California laws when addressing discipline for students with disabilities.

IDEA Guidance

In this guidance, OSERS provides a number of clarifications on how charters schools are treated under IDEA as well as their obligations with regards to admission and delivery of services to students with disabilities. The topics include responsibility for provision of Free and Appropriate Public Education (FAPE), Least Restrictive Environment (LRE), behavior intervention and supports, funding, transfer of records, virtual schools, and other important considerations.

OSERS emphasized that children with disabilities who attend charter public schools and their parents retain all rights and protections under Part B of IDEA just as they would if the children were enrolled in other public schools. This is true regardless of whether the charter school operates as a Local Education Agency (LEA) under State law, or as a public school of an LEA.

Where a charter school is a school of an LEA, that LEA is responsible for ensuring that children with disabilities in the charter school are provided FAPE consistent with the requirements of IDEA, unless State law assigns responsibility to some other entity. If, however, a charter school is its own independent LEA for special education purposes, the charter school is responsible for implementation of all IDEA requirements.

The guidance also provides information on charter school's obligations to address the needs of students whose behavior impedes their learning or that of others. In these instances, the IEP Team must consider and implement the use of positive behavioral interventions and supports, and other strategies, to address that behavior. It is important that charter schools make behavioral supports available throughout a continuum of placements, including in a regular education setting. Failure to do so could result in an inappropriately restrictive placement and constitute a denial of placement in the LRE.

The guidance also clarified that charter schools are bound by IDEA requirements with regards to discipline procedures for students with disabilities. In short, charter schools may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim setting or suspension for up to 10 consecutive school days in a school year. When a school seeks to remove a student with a disability for more than 10 school days, the school must first hold an IEP meeting to determine the appropriateness of a student's current placement, and to determine if the student's disability was the cause of the behavior that lead to the discipline. For additional information, review CCSA's guidance on discipline procedures.