Part 1 of a 3-Part Blog

By Amanda Glass, Equal Justice Works Legal Fellow*

In 2016, of the approximately 120,000 students receiving special education services in Arizona, 240 were receiving services in correctional facilities, such as detention centers, jails, juvenile correctional facilities, and prisons. These settings are called “secure care facilities.” The fact that a student with a disability has been charged with a crime or found by a court to be delinquent does not change the student’s eligibility for special education. The protections and rights for students available under the Individuals with Disabilities Education Act (IDEA) apply to students involved in the justice system, with some variations and exceptions.

In this post, we answer frequently asked questions about the rights of students with disabilities in secure care settings:

Must secure care settings identify and evaluate entering students for special education eligibility?

Yes—just as school districts must evaluate students with suspected disabilities for special education eligibility, so too must secure care facilities.

Child Find is an IDEA provision that requires schools to find all children who have disabilities and may be entitled to special education services. Child Find also applies to secure care facilities. When a person enters a secure care facility, if the person is under 22 years of age and does not have a regular high school diploma, the facility must screen that person for special education needs. “Screening” means examining the person’s educational history and/or checking for problems in academics, cognitive skills, vision, hearing, communication, emotional, adaptive, developmental and psychomotor areas. If this screening raises concerns of a possible disability, the secure care setting must do a comprehensive evaluation for special education eligibility. If a student has an IEP or 504 plan when entering secure care, the secure care facility must implement it as written, or provide comparable services until a new IEP or 504 plan is created.

For more information about Child Find in secure care settings, check out the Arizona Department of Education’s informational brochure and flowchart showing how secure care settings must screen students for possible disabilities.

What does “least restrictive environment” look like in secure care settings?

The IDEA states that children with disabilities must be educated with children who are not disabled to the maximum extent appropriate. This is the least restrictive environment concept or LRE.

The LRE requirement applies to children in a secure care setting.  Students must still be provided with education in the LRE appropriate to their needs. This means that IEP teams for students in secure care settings must make individualized placement decisions, and cannot place all students with disabilities into one classroom out of convenience. If a student with an IEP comes to a secure care setting and the setting does not have an appropriate educational placement for that student, the agency will need to create a new placement or make other arrangements to ensure that student receives an education in the LRE for his or her needs.

There is one exception to the LRE requirement under IDEA for eligible students with disabilities convicted as adults under State law and incarcerated in adult prisons.  For those students, the IEP Team may modify the student’s IEP or placement when the State demonstrates a bona fide security interest or important penological interest* that cannot otherwise be accommodated. In Arizona, this would apply only to students convicted as adults and sent to a facility in the Arizona Department of Corrections. Students in juvenile facilities are not subject to this exception because they were not convicted as adults. Therefore, Adobe Mountain School and all juvenile county detention centers must provide education to inmates in the LRE.

Are students with disabilities in secure care settings entitled to procedural safeguards for discipline?

Yes—students with disabilities in secure care settings are afforded the same protections in disciplinary proceedings as all other students with disabilities. These protections cover, for example, changes in placement, manifestation determinations, and provision of services in an alternative educational setting.

These protections apply if a student is being subjected to discipline within a secure care setting or is being removed to a more restrictive setting, such as solitary confinement or a lockdown unit.

Does an IEP follow a student entering or leaving a secure care setting?

Yes—the IDEA requires all public agencies to have policies and procedures that facilitate the timely transfer of educational records from one agency to another. In Arizona, agencies have 5 working days to request records and 10 working days to receive them. When a student who has an IEP from a previous school in Arizona is placed in a secure care facility in Arizona, the facility must provide the student with services comparable to those described in the student’s IEP until the facility either adopts the existing IEP or develops a new IEP for the student. If a student with an IEP from a school in another state is placed in a secure care setting in Arizona, the setting must provide services comparable to those described in the student’s out-of-state IEP until it conducts a special education evaluation of the student or develops a new IEP for the student.

Look for the next blog post in this three-part series, which will discuss dispute resolution options for students in secure care settings.

*Amanda Glass is an Equal Justice Works Legal Fellow at the Arizona Center for Disability Law. Before attending law school, Amanda earned her master’s degree in special education and spent two years as an elementary school special education teacher in Los Angeles through Teach for America. During law school, Amanda spent a summer interning at the Arizona Center for Disability Law, where she had the chance to work with staff to provide advocacy and legal services to Arizonans with disabilities.

If you are the IDEA or 504 parent of a student involved with the Department of Child Safety and are having problems with special education, you may be able to get free legal help from Amanda’s fellowship project at ACDL. To get help, call toll free at 1-800-927-2260, locally at 602-274-6287, or visit our website at www.azdisabilitylaw.org and do an intake. Together, we can improve outcomes for Arizona foster youth with disabilities.