Charter Schools and Special Education
LEA Status
1. Is the charter school or the public school district in which a charter school student resides the local educational agency (LEA) for purposes of the Individuals with Disabilities Education Act (IDEA)?
The school district of residence acts as the local educational agency (LEA) and is responsible for applying for federal IDEA funds for special education services provided to resident students enrolled in a charter school. Education Law § 2856(1) requires that the school district of residence pay to the charter school any federal aid attributable to a student with a disability in proportion to the level of services rendered by the charter school. Education Law § 4410-b(4) requires that funds received pursuant to section 611 and 619 of the IDEA be sub-allocated to charter schools pursuant to the Charter Schools Act and the Regulations of the Commissioner. Section 119.1(b)(9) and (d) require that the school district of residence pay to the charter school any federal funds received pursuant to sections 611 and 619 of the IDEA that are attributable to a student with a disability who receives services, directly or indirectly, from the charter school. Education Law § 2853(4) requires that charter school students receive special education services in accordance with the individualized education program (IEP) recommended by the committee on special education (CSE) or subcommittee on special education of the school district of residence. Therefore, for purposes of the IDEA, the school district of residence is the LEA, and a charter school is deemed a school of the school district.
CSE Responsibility
2. Is the public school district in which the student resides responsible for the evaluation, identification, and individualized education program (IEP) development for a student with a disability enrolled in a charter school?
Yes. Education Law § 2853(4)(a) places committee on special education (CSE) responsibility for charter school students on the school district of residence. The school district of residence is the local educational agency (LEA) under the Individuals with Disabilities Education Act (IDEA) and is responsible for the evaluation, identification and placement of, and IEP development for, charter school students. Education Law §§ 2853(4) and 2851(2)(s) make the charter school responsible for implementation of the IEP in compliance with all federal laws and regulations relating to students with disabilities.
3. Can the charter school establish a CSE or Subcommittee on Special Education?
No. CSE responsibility is placed on the school district of residence. A school district CSE or a subcommittee on special education established in accordance with Education Law § 4402(1)(b) could meet at the charter school.
4. Must the CSE ensure the participation of a representative of the charter school in the development and review of the student’s IEP?
Charter school participation in the development of IEPs for charter school students is of critical importance to both the school district and the charter school. In meetings to develop or review the IEP of a student with a disability enrolled in, but not yet attending a charter school, we recommend that the school district and the charter school ensure that a representative of the charter school, preferably the regular and/or special education teacher who will be providing services to the student, attends the meeting. In all CSE meetings involving charter school students, the parents and the school district would have the right to invite charter school personnel as individuals who have knowledge or special expertise concerning the child. If the student is already attending the charter school, one of the child's regular education teachers from the charter school must serve as the regular education teacher member of the CSE. If the charter school is providing all special education and/or related services either directly or by contract, one of the child's special education providers must serve as the special education teacher member of the CSE. If both the school district and the charter school, directly or by contract, provide special education and/or related services to the child, the school district must designate the most appropriate provider to serve as the special education teacher member of the CSE. Charter schools are expected to cooperate fully with school districts by assuring that charter school teachers and other charter school personnel participate in CSE meetings relating to charter school students.
5. When developing the IEP of a student with a disability enrolled in a charter school is the CSE limited to recommending special education programs and services currently offered by the charter school?
No. The CSE must assure that a free appropriate public education is made available to students enrolled in a charter school and, therefore, in developing an IEP must recommend special education programs and services to meet the individual needs of the student. In formulating the recommendation, the CSE should consider the educational programs and services, and extracurricular and other nonacademic activities, available in the charter school setting and should attempt to tailor the IEP to meet the individual needs of the student in the context of the charter school program. The charter of each charter school must describe the methods and strategies for serving students with disabilities, which must be in compliance with all Federal laws and regulations relating to special education (Education Law § 2851[2][s]). Charter schools are exempt from ¶¶Òõapp requirements relating to class size and instructional groupings, and innovative approaches by the charter school to the delivery of special education services that are consistent with the IDEA, the Rehabilitation Act and Federal regulations should be accommodated. However, special education programs and services recommended on the IEP must provide for the student to advance appropriately toward attaining the annual goals, to be involved and progress in the general curriculum, and to participate in extracurricular and other nonacademic activities in the least restrictive environment. If the nature and severity of the disability of a student enrolled in a charter school is such that the education of the student in the general education classes of the charter school cannot be achieved satisfactorily, the CSE must recommend a special class or other appropriate placement whether or not such special class or placement is available at the charter school. The charter school must fully implement the IEP of a student attending the charter school. It is the obligation of the school district of residence, as the LEA, to provide the charter school the student’s records and other information needed to enable the charter school to properly implement the student’s IEP on the same basis as any other public school within the school district (see question 20 on confidentiality of student records) and, to the extent the charter school provides the special education programs and services to the student, to pay to the charter school the ¶¶Òõapp and Federal aid attributable to the student.
6. Does the CSE place a student with a disability in a charter school?
No. Students with disabilities are admitted to a charter school upon application by the parent on the same basis as any other student.
7. What procedures must be followed when the IEP of a student enrolled in a charter school requires full-time placement outside of the charter school program (e.g., in an approved private residential school, ¶¶Òõapp-operated or ¶¶Òõapp-supported school)?
This situation results in an apparent conflict between the provisions of the Charter School Law and the IEP developed pursuant to Federal laws and regulations. As is the case with a student attending any other public school of the school district, if the CSE recommends a full-time placement outside of the charter school for a student enrolled in a charter school, the charter school must discharge the student to the school district of residence and may not continue to enroll the student once the new IEP is implemented unless the student's parent commences due process proceedings to challenge the CSE recommendation and the charter school program becomes the student's current educational placement during the pendency of due process proceedings. However, once any due process is completed, the final determination is binding on the parents as well as the charter school and the school district. In this situation, the charter school’s obligations to the student, financial and otherwise, terminate upon discharge to the school district of residence.
Due Process
8. Is the charter school or the school district of residence of a charter school student responsible for due process procedures under the IDEA?
As the local educational agency (LEA), the school district of residence is generally responsible for due process procedures relating to the evaluation, identification, educational placement and the provision of a free appropriate public education to charter school students. Where the parents of a charter school student object to the IEP recommended by the CSE of the school district of residence or otherwise raise issues concerning the provision of a free appropriate public education to their child, the school district of residence is responsible for providing mediation and/or conducting an impartial hearing to resolve the dispute, to the same extent as for a student enrolled in the school district. Charter schools must cooperate with school district personnel and school district attorneys in the conduct of due process proceedings, by making charter school personnel available to testify and providing documentary evidence upon request. In addition, under Education Law § 2851(1)(h), charter schools are required to have student discipline procedures that are consistent with due process and with Federal laws and regulations governing the placement of students with disabilities. Therefore, charter schools are required to comply with the procedural requirements contained the IDEA discipline procedures (34 C.F.R. §§ 300.519-300.529) that apply to actions of school personnel upon suspension or removal of a student (such as providing notice of a decision in a disciplinary matter that would result in a change of placement, with a procedural safeguards notice, as required by 34 C.F.R. § 300.523), while the school district must comply with the IDEA discipline procedures that relate to CSE functions, such as conducting manifestation determinations, conducting functional behavioral assessments and developing and reviewing behavioral intervention plans, and providing all required notices in connection with the CSE meeting, including a procedural safeguards notice.
9. What due process procedures must be followed for students with disabilities pertaining to discipline?
Charter schools are required to have student discipline procedures that are consistent with due process and the discipline procedures contained in the IDEA and Federal regulations relating to student discipline (34 C.F.R. §§ 300.519-300.529). The CSE responsibilities required by Federal law and regulations, including the responsibility to make manifestation determinations, must be carried out by the CSE of the school district of the student’s residence. A due process proceeding brought to challenge a determination of the CSE, including an expedited hearing to contest a manifestation determination, is the responsibility of the school district of residence. Upon request of the charter school, the school district of residence must initiate an expedited due process hearing to obtain an order changing the placement of a student with a disability to an interim alternative educational setting, where continuing the current placement of the student is substantially likely to result in injury to the child or others.
10. To what extent should charter school discipline procedures for students with disabilities be coordinated with the CSE of the student's school district of residence?
Because the CSE of the school district of residence carries out all CSE functions relating to disciplinary actions taken against charter school students, charter schools and school district CSEs must develop procedures to assure that both entities are able to meet their respective obligations to charter school students under the IDEA discipline procedures. This will require coordination through measures such as:
- requiring prompt notice to the school district CSE of charter school suspensions or removals that trigger requirements for meetings of the CSE, such as the need to conduct a manifestation determination or to meet to review a functional behavioral assessment plan;
- procedures to assure the participation of charter school personnel in meetings of the CSE relating to charter school students, particularly in meetings relating to the development and implementation of behavioral intervention plans for charter school students;
- procedures for requiring prompt notice to the charter school of any actions by the school district CSE that affects a charter school student; and
- procedures for obtaining CSE determinations for charter school students under 34 C.F.R §§ 300.121(d)(3)(ii) (determination of services for suspensions or removals that would constitute a change in placement); 300. 522(a) (determination of interim alternative educational setting) and 300. 523 (manifestation determination).
IEP Implementation
11. Must the charter school implement the recommendations as written in the Individualized Education Program (IEP)?
Yes.
12. May a charter school contract with a BOCES for delivery of special education services?
No. There is no statutory authority in Education Law § 1950 for a BOCES to contract to provide special education or related services to a charter school, even though a charter school has authority to contract with providers of special education under Education Law § 2853(4)(a). Therefore, if a charter school wants to arrange to provide special education services through a BOCES, the charter school should request that the school district of residence contract with the BOCES for such service.
13. What procedures should be followed if the parent of a student enrolled in a charter school wants the student to receive some but not all of the services recommended on the student’s IEP?
If the parent disagrees with the IEP in whole or in part, the parent has a right to challenge the CSE determination through mediation and/or an impartial hearing.
14. Is the charter school required to arrange for the provision of any special education programs and services recommended on the student’s IEP?
Yes. The charter school is responsible to implement the IEP as written. The charter school may provide these services directly or arrange to have such services provided by the school district of residence or by contract with another provider. However, if the CSE recommends placement in an approved private residential or non-residential school or another full-time placement outside of the charter school, the student will not be attending or enrolled in the charter school program and may not be counted in computing enrollment for purposes of determining the funds to be paid to the charter school. (See also, questions 7 and 19).
15. How soon after the enrollment of a student with a disability or after a new or revised IEP is developed must a charter school implement the IEP?
Charter schools are required to follow federal laws and regulations that require the IEP to be implemented as soon as possible following the meeting in which the IEP is developed. The school district of residence must provide the charter school with the student records and other information that the charter school needs to implement the IEP (see question 20 on confidentiality of student records). If the charter school requests that the school district provide some or all of the recommended special education services, the school district must conform to the timelines for IEP implementation in the Part 200 regulations.
16. May a charter school choose to arrange for provision of special education and/or related services by the public school district for some but not all students, or for some but not all services on a student's IEP?
Yes. Education Law § 2853(4) does not require that the charter school choose between having all the services contained on an IEP provided by the school district of residence or having all such services provided by the charter school, directly or indirectly. Under Education Law § 2856 (1) and Part 119.1 of the Regulations of the Commissioner, the school district of residence is required to pay the federal and ¶¶Òõapp aid attributable to a student with a disability to the charter school only in proportion to the level of services that the charter school provides directly or by contract with another provider.
17. If the charter school requests that the school district of residence provide the special education and/or related services recommended on the IEP, must the public school district provide the services?
Yes, both the school district of residence, as LEA, and the charter school are legally obligated to assure that the charter school student receives a free appropriate public education in accordance with the student's IEP. Therefore, if the charter school requests that the school district provide the special education and/or related services recommended in the IEP, the school district must cooperate in making arrangements to deliver such services. If on-site services are required to meet the individual needs of the student (such as consultant teacher services, deaf interpreters, etc.), the services must be provided on the site of the charter school.
18. If the student's IEP recommends that a student be placed in a self-contained special class or resource room, and the charter school has no self-contained class or resource room, is the charter school required to establish such a class or resource room and/or arrange to have the school district provide such a class?
Yes, if the student's IEP recommends a self-contained special education class, resource room or other services that can be delivered at the charter school and would enable the student to participate in the charter school's programs and services for some portion of the school day, the charter school is required to implement the IEP and arrange to have such services provided to the student. The charter school, under Education Law § 2853(4)(a), has the option of providing the special education programs directly or by contract, or arranging to have such services provided by the school district. If the charter school requests that the school district provide a self-contained class or resource room, the charter school and the school district can meet such obligation by placing the student in a self-contained class or resource room operated by the school district at a location other than the charter school, if that is appropriate to the needs of the student. However, if a self-contained class or resource room on the site of the charter school is determined by the school district CSE to be the appropriate placement for the student and the charter school requests that the school district provide such services, the self-contained class or resource room must be provided by the school district. In this situation, the charter school and the school district CSE should work with the parents to develop an IEP that meets the student's needs and to design a program that is integrated into the charter school's educational programs and makes use of charter school and school district resources.
19. If the school district of residence is asked by the charter school to provide any or all of the special education services indicated on a charter school student’s IEP, may the school district refuse to serve the student based on fiscal concerns?
No. The school district, as LEA, may not withhold services from the student based on a dispute with the charter school over the cost of services or fiscal responsibility for such services. The school district of residence is required to provide the services requested by the charter school and is required under 34 C.F.R. § 300.241 to serve charter school students in the same manner as it serves students with disabilities in other public schools of the school district. The school district of residence retains the ¶¶Òõapp or federal aid attributable to services provided by it to a student with a disability.
20. In the charter school enrollment process, may charter school personnel enrolling a student with a disability obtain educational records, including the CSE evaluation and IEP, of a student receiving special education programs and services through the district?
Yes. Under 34 C.F.R. § 99.31(2), officials of another school in which a student seeks or intends to enroll may have access to student records without parental consent provided that the school district complies with 34 C.F.R. § 99.34 on parental notice. However, the charter school must maintain full confidentiality of records in accordance with IDEA and FERPA and the federal regulations implementing such statutes (34 C.F.R. §§ 300.560-300.577; 34 C.F.R. Part 99).
Transportation
21. Who provides transportation for students with disabilities enrolled in a charter school?
For the purpose of regular transportation between home and school under Education Law § 3635, charter schools are considered nonpublic schools, which means that non-disabled students and students with disabilities attending charter schools who reside within a 15-mile radius of the charter school (or greater radius if the voters of the school district of residence have approved nonpublic transportation for more than 15 miles) will receive transportation from their school district of residence on the same basis as nonpublic school students (e.g., subject to the applicable minimum mileage limits for transportation in the school district of residence). In addition, the school district of residence is responsible to provide special transportation to a student with a disability attending a charter school, whenever special transportation is included on the student’s IEP and the charter school requests that the school district provide such special transportation. Special transportation is included in the definition of "special education" under Education Law § 4401(1). If the charter school arranges to provide special education services directly, through an arrangement with the school district, or by contract with another provider at a site other than the charter school, transportation between the charter school and such other site is the responsibility of the charter school, which may arrange with the school district to have such transportation provided as "supplemental transportation" at cost.
Oversight and Monitoring
22. Who is responsible for ensuring a charter school’s compliance with Federal laws and regulations relating to special education?
Under Article 56 of the Education Law, a charter school is an independent, autonomous public school and is not a local educational agency (LEA). Education Law § 2853(2) assigns responsibility to the Board of Regents and the charter entity to oversee the charter school and to ensure the charter school’s compliance with all applicable laws and regulations, which would include the IDEA and the Federal regulations implementing the IDEA. Education Law § 2853(4)(a) gives the school district of residence CSE responsibility for charter school students and therefore makes the school district of residence initially responsible for its CSE’s compliance with the IDEA and Article 89 of the Education Law. However, the school district of residence is not responsible for oversight and monitoring of the charter school's compliance with the IDEA, unless the school district of residence is a charter entity, such as in the case of a charter school conversion. The ¶¶Òõapp Education Department, as the state educational agency (SEA), has ultimate responsibility for assuring compliance with the IDEA by both the school district of residence and the charter school. A school district or a parent may file a complaint with the ¶¶Òõapp Education Department's Office for Vocational and Educational Services for Individuals with Disabilities, if they believe that the charter school is not in compliance with the IDEA.
Graduation Requirements
23. Is the charter school responsible for administering ¶¶Òõapp examinations?
Yes. In accordance with Education Law § 2854(d), students attending charter schools are required to take ¶¶Òõapp examinations to the same extent such examinations are required of other public school students.
24. Can the charter school issue a diploma?
Yes. A charter school offering instruction in high school may grant Regents diplomas and local diplomas to the same extent as other public schools.
25. Who administers testing accommodations for students with disabilities attending a charter school?
Whoever is administering the ¶¶Òõapp, local, or classroom examination implements the testing accommodations.
26. Do students who attend the charter school receive the safety net provisions under Part 100 of the Regulations?
Under Education Law § 2854(1)(d), charter schools students are required to take Regents examinations to the same extent as such examinations are required of other students in the public schools and may grant Regents and local diplomas to the same extent as other public schools. Therefore, charter schools must provide students with disabilities attending the charter school with access to the safety net (i.e., taking Regents Competency Tests in lieu of Regents examinations) to the same extent as other public schools, unless the IEP indicates otherwise.
27. Must a charter school adhere to the requirements of Section 504 of the Rehabilitation Act of 1973?
Yes, the Rehabilitation Act is a Federal civil rights law that prohibits discrimination against individuals with disabilities, and charter schools are not exempted from such law by Education Law § 2854(1)(b). Therefore, charter schools must comply with the procedures required under the Federal regulations implementing the Rehabilitation Act, 34 C.F.R. Part 104, including the provisions of 34 C.F.R. §§ 104.31-104.37 that require the designation of a Multidisciplinary Team, writing Accommodation Plans, procedural safeguards, etc.
