SPECI AL EDUCATI ON LAW UPDATE Barbara Drayton, Deputy General Counsel Office of General Counsel South Carolina Departm ent of Education TRANSFER OF RI GHTS AT AGE OF MAJORI TY 3 4 C.F.R § 3 0 0 .3 2 0 ( c) Prior to the passage of the Adult Students W ith Disabilities Educational Rights Consent Act ( Consent Act) , there w as only one exception to the transfer of rights to a student w ith a disability at age eighteen: Seeking a determ ination through the Probate Court that the student is incom petent. ADULT STUDENTS W I TH DI SABI LI TI ES EDUCATI ONAL RI GHTS CONSENT ACT ( CONSENT ACT) S.C. Code Ann. § 5 9 -3 3 -3 1 0 et seq. • Effective June 5 , 2 0 1 6 . • Five options relative to students w ith disabilities w hen they turn age eighteen: 1 ) All Rights Transfer To The Student; 2 ) The Student Makes Decisions W ith Support And Assistance ( Supported Decision Making) ; 1
3 ) Delegation of Rights A student w ith the capacity to do so m ay sign a pow er of attorney and delegate his or her rights to an agent ( such as a parent) or delegate his or her rights using the form developed by the SCDE. 4 ) Certification of an Educational Representative A student w ho is unable to com m unicate his or her w ishes, interests, or preferences w ith respect to an educational program m ay have an educational representative certified to act on his or her behalf. 5 ) Guardianship of the Student I f a student is incapacitated, the parents or other appropriate person m ay seek guardianship of the adult child through the Probate Court process. The Consent Act does not apply if the student has a court-appointed guardian. W HAT I S THE PROCESS FOR THE APPOI NTMENT OF AN EDUCATI ONAL REPRESENTATI VE? ( OPTI ON 4 ) Step 1 – A Medical Exam ination • The student first needs a m edical exam ination that m ust be conducted by one of the follow ing m edical professionals: Physician; Nurse practitioner; Physician’s assistant; Psychologist; or Psychiatrist • The licensed m edical professional m ay not be an em ployee of the school district. 2
Step 2 – The Medical Professional Must Exam ine the Student and Certify in W riting that the Student is I ncapable of Com m unicating, W ith or W ithout Reasonable Accom m odations, the Student’s W ishes, I nterests, or Preferences Regarding His or Her Educational Program . - The Certification m ay be inform al, but it m ust include the follow ing inform ation: The date of the exam ination; The basis for the determ ination that the student is not able to com m unicate his or her w ishes; and A statem ent of w hether the inability to com m unicate is likely to last until age tw enty- one. Step 3 – The Medical Professional Must Send the Letter to the Superintendent or Other Designated School Official Upon receipt of a certification letter, there is a • requirem ent to notify the student in w riting that a m edical professional certified that he or she is incapable of com m unicating and an educational representative w ill be designated to represent him or her. The notice m ust inform the student that he or she • m ay challenge the designation of the educational representative. I f the student challenges the certification of an • educational representative, the school district m ay not rely upon the educational representative for any decision-m aking purpose. R.6 1 -1 0 3 , RESI DENTI AL TREATMENT FACI LI TI ES FOR CHI LDREN AND ADOLESCENTS Effective June 2 4 , 2 0 1 6 An education program , including a program • for students w ith disabilities, that m eets all applicable federal and state requirem ents, as defined by the South Carolina Departm ent of Education ( SCDE) . The education program m ay be provided at • the facility, if appropriate space is available to provide a free appropriate public education in the least restrictive environm ent, or an alternate location. 3
A facility shall be planned, designed, and • equipped to provide and prom ote the health, safety, and w ell- being of each resident. Spaces w ithin or associated w ith the facility • provided educational program , w hether dedicated solely to education or shared w ith other activities, shall m eet the requirem ents of the m ost recent edition of the South Carolina School Facilities Planning and Construction Guide. I f the facility w ill provide space for the • educational program , plans and specifications shall be subm itted to the SCDE, Office of School Facilities ( OSF) for approval. Subm ittal and other requirem ents listed in Section 1 9 0 0 for the Departm ent shall be required for the SCDE, OSF. PROVI SO 1 .4 2 - SDE: RESI DENTI AL TREATMENT FACI LI TI ES STUDENT ENROLLMENT AND FUNDI NG Each South Carolina resident of law ful school age residing in licensed residential treatm ent facilities ( RTFs) for children and adolescents as defined under Section 4 4 -7 -1 3 0 of the 1 9 7 6 Code, ( “students”) shall be entitled to receive educational services from the school district in w hich the RTF is located ( “facility school district”) . The responsibility for providing appropriate educational program s and services for these students, both w ith and w ithout disabilities, w ho are referred or placed by the State is vested in the facility school districts. W HAT ARE THE STEPS TO COLLECT PAYMENT AND THE TI MELI NES? • Facility school districts providing the educational services shall notify the resident district in w riting w ithin forty-five calendar days that a student from the resident district is receiving educational services pursuant to the provisions of the proviso. • Reim bursem ents shall be paid w ithin sixty days of billing, provided the facility district has sent a copy of the invoice to both the district superintendent and the finance office of the resident district being invoiced. 4
HOW MUCH CAN YOU COLLECT? The facility school districts are entitled to receive • the base student cost m ultiplied by the Education Finance Act pupil w eighting for Hom ebound pupils of 2 .1 0 , as set forth in Section 5 9 -2 0 -4 0 of the 1 9 7 6 Code and any eligible categorical and federal funds. A facility school district is entitled to • reim bursem ent from a resident school district for the difference betw een ( 1 ) the reasonable costs expended for the educational services provided directly by the facility school district or the am ount paid to the RTF and ( 2 ) the aggregate am ount of federal and state funding received by the facility school district for that student. How ever, the reim bursem ent rate m ay not exceed $ 4 5 per student per day. RTF LOCATI ONS • Charleston • Pickens • Richland One • Dorchester Tw o • W illiam sburg • Florence One • Greenville • York Three ( Rock Hill) • Horry • Lexington Tw o OUT-OF-STATE RTF PLACEMENTS ( New Provision) RTF facilities on the State Qualified Provider List • not located w ithin the boundaries of the state shall be reim bursed at a rate that m ay not exceed $ 4 5 per student per day for education services and school districts shall be eligible to receive a base student cost w eighted funding of 2 .1 0 provided that the student rem ains enrolled in the school district. Facilities providing the educational services shall • notify the resident district in w riting w ithin forty- five calendar days that a student from the resident district is receiving educational services pursuant to the provisions of the proviso. 5
REQUI REMENTS FOR OUT-OF-STATE RTF EDUCATI ON PROGRAMS? Qualified RTF providers’ general education curriculum m ust be aligned to the South Carolina academ ic standards in the core content areas. All students w ith disabilities w ho are eligible for special education and related services under the I ndividuals w ith Disabilities Education Act ( I DEA) , as am ended, and the State Board of Education ( SBE) regulations, as am ended, shall receive special education and related services in the least restrictive environm ent by appropriately certified personnel. • Students in a qualified RTF w ill at all tim es be eligible to receive the educational credits ( e.g., Carnegie Units) earned through their educational efforts. • The resident school district and the RTF should develop a m em orandum of understanding to outline the responsibilities of the RTF in providing the educational services and responsibilities, if any, of the resident school district w hile the student is housed in the RTF. • I f a child is placed in a RTF by the child’s parent or guardian and is not referred, authorized, or placed by the State, the facility school district m ay choose to provide the educational program to the child, and upon doing so, m ust negotiate w ith the resident school district for services through m edical hom ebound procedures. MEDI CAI D 6
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