Free Public Schools
CHAPTER 31. Exceptional Children
Subchapter III. Children With Disabilities
The State shall provide, in the school districts and charter schools of the State, or in other state institutions and agencies or in special programs and private agencies as established or approved by the Department with the approval of the State Board, that each child with a disability as defined in this chapter shall receive a free and appropriate public education designed to meet that child with a disability’s own needs. The Department of Education shall be the agency responsible for the implementation of this required provision.61 Del. Laws, c. 190, § 7; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 180, §§ 148, 148A; 77 Del. Laws, c. 424, § 12;
Each school district, charter school and other state agencies responsible for the care of Delaware citizens shall provide and maintain, under appropriate regulations of the Department of Education approved by the State Board of Education, special classes and facilities to meet the needs of children with a disability as herein defined and recommended for special education or training who are residents of any geographical area within the State and who can be served by such special classes and facilities. This and other sections of this chapter and this title may be carried out by assigning children who are residents of 1 school district to attend classes in facilities of another school district according to Chapter 6 of this title concerning tuitions. Placement in a state agency that is not part of the public school system shall be in accordance with rules developed under § 3110 of this title.42 Del. Laws, c. 125, § 1; 14 Del. C. 1953, § 3103; 51 Del. Laws, c. 287, § 2; 61 Del. Laws, c. 190, § 7; 71 Del. Laws, c. 180, §§ 148A, 149; 77 Del. Laws, c. 424, § 13;
(a) Except as noted in subsection (b) of this section regarding parentally-placed private school children, each school district shall be required to identify, locate and evaluate, or reevaluate, any children with disabilities residing within the confines of that school district, including children with disabilities who are homeless children or wards of the State, regardless of the severity of the disability, and who are in need of special education and related services.
(b) Each school district, excluding vocational school districts, shall be required to identify, locate and evaluate, or reevaluate, any children with disabilities who are enrolled by their parents in private schools located within the confines of that school district, regardless of the severity of the disability, and who are in need of special education and related services.42 Del. Laws, c. 125, § 1; 14 Del. C. 1953, § 3105; 51 Del. Laws, c. 287, § 2; 61 Del. Laws, c. 190, § 7; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 180, §§ 148A, 150; 77 Del. Laws, c. 424, § 14; 78 Del. Laws, c. 397, § 1;
(a) Any school district administering a program for children with autism may provide from its own personnel or contract with another state agency or a private service provider if necessary for appropriate supportive services, including, but not limited to, physical, art and music education, psychological services, language and speech therapy, physical and occupational therapy. The supportive services to be provided shall be based upon a program for each child as approved by the Department of Education; provided, that the State Board may review any objection to the Department’s decision. The school district designated by the Department with State Board approval as the administering agency for a statewide program for autistic pupils shall annually submit in its budget a request for funds for such services.
(b) Community-based residential units for children with autism may be operated by a school district designated and approved by the Department with State Board approval as the administering agency for a statewide program for autistic pupils. When the school district operates a community-based residential program, that program shall meet the following minimum standards:
(1) Pre-puberty and post-puberty children shall be housed separately. In no case shall a child under age 12 be housed with a child over age 16 except as approved by the Human Rights and Peer Review committees of the statewide autistic program.
(2) Residential units shall be provided at the rate of 1 residential unit for each 4 residential pupils except that a maximum of 5 pupils may be housed in 1 residential unit. At no time shall the total number of pupils exceed 6
(3) Residential teacher coordinators shall be provided for a period of 12 months per year at the rate of 3 full-time equivalent teacher coordinators per residential unit.
(4) Residential child care specialists shall be provided for a period of 12 months per year at the rate of 6 full-time equivalent residential child care specialists per residential unit. The Department with the approval of the State Board of Education shall determine the necessary educational requirements for the residential child care specialists.61 Del. Laws, c. 190, §§ 5, 8; 64 Del. Laws, c. 381, §§ 1, 2; 71 Del. Laws, c. 180, § 151; 77 Del. Laws, c. 424, § 15; 83 Del. Laws, c. 325, § 389;
(a) Private placement with financial aid may be sought when an Individual Education Program (IEP) team finds that an eligible child with a disability cannot benefit from the regularly offered free appropriate public educational programs which include regular classes, special classes or special schools. The determination shall be made by the IEP team and by the Department of Education that no school district or other state agency has a suitable free and appropriate program of education for that particular child with a disability. Such private placement shall be in a school or institution approved by the Department of Education in keeping with its oversight responsibilities. Given the nature of these services, such placements shall be exempt from the requirements of Chapter 69 of Title 29.
(b) Before the Department of Education can authorize expenditures for new placements according to this section, the case must be reviewed by the Interagency Collaborative Team (ICT).
(1) The ICT shall consist of:
a. Division Director, Division of Prevention and Behavioral Health Services of the Department of Services for Children, Youth and Their Families (DSCYF);
b. Division Director, Family Services of DSCYF;
c. Division Director, Division of Youth Rehabilitation Services of DSCYF;
d. Division Director, Division of Developmental Disabilities Services of the Department of Health and Social Services (DHSS);
e. Division Director, Division of Substance Abuse and Mental Health of DHSS;
f. Director of the Office of Management and Budget or designee;
g. The Controller General or designee;
h. Director, Exceptional Children’s Group, Department of Education (DOE), who will serve as Chair; and
i. Associate Secretary, Curriculum and Instructional Improvement, DOE.
(2) A director assigned to the ICT may designate staff to represent the director on the ICT only if these designated representatives are empowered to act on behalf of the division director, including commitment of division resources for a full fiscal year.
(3) The ICT shall invite to its meetings:
a. A representative of a responsible school district for the case under consideration;
b. The parents of the child;
c. Other persons the team believes can contribute to their deliberations.
(4) The ICT shall:
a. Review existing assessments of new referrals;
b. Prescribe, if required, additional assessments for new referrals;
c. Review proposed treatment plans of new referrals;
d. Recommend alternatives for treatment plans of new referrals;
e. Coordinate interagency delivery of services;
f. Review, at least annually, current unique alternatives for the appropriateness of treatment plans and transition planning;
g. If appropriate, designate a primary case manager for the purpose of coordination of service agencies;
h. If appropriate, designate agencies to be involved in collaborative monitoring of individual cases.
(5) The ICT will ensure that state costs incurred as the result of a Team recommendation or assessment of a child currently funded from the Unique Alternatives appropriation will be covered from the existing appropriation. New referrals will be assessed in the interagency manner described above. The ICT shall accept and review cases initiated by other agencies, but in all cases the school district of residence must be involved in the review.
(6) Cases reviewed by the ICT will employ Unique Alternatives funding to cover state costs to the extent determined appropriate by the Interagency Collaborative Team. Other agencies may recognize a portion of the responsibility for the treatment of these children if determined appropriate by the Team. Cases involving individuals who are wards of the State shall be fully funded from Unique Alternatives funding. Funds may be transferred upon the approval of the Director of the Office of Management and Budget and the Controller General.
(7) The ICT shall report on its activities to the Governor, Director of the Office of Management and Budget, President Pro Tempore, Speaker of the House and the Controller General by February 15 of each year. The report shall address the status of items addressed in the previous February ICT Annual Report.
(c) Disputes concerning the private placement of a child are subject to the hearing procedures set forth in § 3135 of this title. Subject to the parties’ right to appeal, the decision of the hearing panel appointed by the Secretary of Education is final and binding on all parties and the State Board of Education.
(d) Financial aid shall include tuition for special education and related services as defined in the Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1400, et seq.] to include daily transportation for a private day program and room and board for a residential program. Transportation for a residential program will include, at a minimum, transportation to and from the facility at the start and end of each school term and when the school is officially closed to students. Reimbursement for other trips home or for the parents’ travel costs to accompany the child or to attend conferences at the facility shall be determined on a case-by-case basis.
(e) The Department of Education is authorized to continue utilizing funds appropriated for this section to develop unique educational alternatives, in lieu of private placement, for children who have been found unable to benefit from the regularly offered free, appropriate public educational programs and students in present education programs within this State whose individual education plan requires services not presently available within the present unit funding system. Unique educational alternatives shall be defined and approved by the Department of Education and may include, but not be limited to, related and supportive services. Any placement made pursuant to this subsection shall be considered a special program placement and shall be eligible for inclusion in local school district tuition tax rate setting per § 604(c) of this title.61 Del. Laws, c. 190, §§ 5, 8; 61 Del. Laws, c. 271, § 1; 61 Del. Laws, c. 337, §§ 1, 2; 64 Del. Laws, c. 63, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 180, §§ 148A, 152; 73 Del. Laws, c. 321, §§ 12, 13; 74 Del. Laws, c. 98, § 1; 75 Del. Laws, c. 88, § 21(7); 76 Del. Laws, c. 280, § 383; 77 Del. Laws, c. 327, § 210(a); 77 Del. Laws, c. 424, §§ 16-20; 81 Del. Laws, c. 58, § 366;
Each school district and charter school enrolling any child with disabilities shall, on an annual basis, contact the parents of each such child to attempt to facilitate the creation and maintenance of a parent council for the parents of students with disabilities. Parent councils will advocate generally for students with disabilities and provide person-to-person support for individual parents and children. The charter schools and school districts shall collaborate and coordinate with existing parent groups and other information and support groups to facilitate creation, maintenance, and effectiveness of the parent councils.80 Del. Laws, c. 37, § 1;
Effective January 1, 2016, each charter school will designate and maintain at least 1 professional staff member who has completed training approved by the Department of Education regarding the legal responsibilities of charter schools with respect to preparation of IEPs for students with disabilities and resources available to charter schools to assist in preparation of such programs. The Department of Education, by regulation, shall define the scope and timetable of initial and refresher training.80 Del. Laws, c. 37, § 1;