Incarcerated Youth Q&A
- What do state and federal regulations say about provision of services to students with disabilities incarcerated in local city or county jails?
- What procedures must my agency have in place to ensure that the regulatory requirements for provision of services to these students are being met?
- What if local law enforcement will not allow agency staff to provide services to the student during their incarceration?
- What if the student refuses to accept services during their incarceration?
- When a student is incarcerated in a local city or county jail, who has the rights under the Procedural Safeguards, the student or parents?
- What if the student is incarcerated in a different city or county from the one in which they reside. Who is responsible for provision of services?
Questions and Answers
State and federal regulations do not speak directly to the obligations of public agencies to provide services to students incarcerated in local county or city jails. Rather, the obligation is implied in the regulatory requirement under the provisions of Section 300.101 Provision of FAPE. This regulation requires that “A free appropriate public education must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.-" The regulations in Section 300.102 make an exception to FAPE for some students incarcerated in Adult Prisons.
The group of students that we are referring to here are neither those incarcerated in Adult Prisons under the supervision of the Missouri Department of Corrections nor juveniles under the supervision of the Division of Youth Services in Juvenile Correctional facilities, but rather, students incarcerated in local, city or county jails.
Local agencies must have procedures in place to locate and offer the provision of services to resident students who are incarcerated in a local county or city jail. This means that when a student is enrolled in a responsible public agency and receiving services under an IEP, the agency must have procedures that include, if a student is not attending school, the district initiates an effort to identify the whereabouts of the student and, if he/she is incarcerated in a local county or city jail, offers or arranges for the provision of services while the student is incarcerated.
Occasionally for security reasons, local law enforcement will not allow special education services to be provided to the student while he/she is incarcerated. If this is the case, the district must document that they located the student and offered services but were denied access to the student by law enforcement officials. When the student returns to school the IEP team should meet and determine if there has been a denial of FAPE and whether compensatory services are needed.
Students who refuse to receive services would need to be identified as “drop-outs.”
This would depend on the age of the student. If the student is 18, then the Transfer of Rights provision in state and federal regulations would apply. However, if the student is under 18, the parents would retain their rights.
The public agency under whose jurisdiction the child falls is responsible (i.e., the agency who is responsible for enrolling the child for educational services or where the child is enrolled). In most cases, this is the agency where the child &/or child’s parents/guardians reside. For example, if a student with disabilities in District A gets into a fight in District B on Saturday night and is incarcerated in the local jail in District B, on Monday morning (or soon thereafter) District A would be responsible for locating that child and offering provision of services while the student is incarcerated. They may do that by sending someone to provide the services in the local jail in District B or by contracting with District B to provide the services in the local jail.