1 3 ) Delegation of Rights A student w ith the capacity to do so m - PDF document

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