Special Education Law Update: Key Takeaways from Mississippi Directors Conference

undefined
SPECIAL EDUCATION LAW UPDATE:
LESSONS LEARNED
Mississippi Directors Conference
Mississippi Department of Education
June 2016
Presenter: Art Cernosia
Every Student Succeeds Act
(ESSA)
Reauthorizes the Elementary and Secondary Act of
1965
Replaces the No Child Left Behind Act
Signed into law in December 2015
Teacher Qualifications
Highly Qualified Teacher requirement deleted,
including HQT in the IDEA.
Effective August 1, 2016
State law impact????
Eliminates mandated teacher evaluation systems.
 
Special Education Teachers
Special ed teachers must meet full state certification
requirements (including alternative routes);
 or
Pass the state’s special ed teacher licensing exam.
No waivers for emergency, temporary, or provisional
status.
Must hold at least a bachelor’s 
degree
.
Accommodations
SEAs must develop and disseminate information
promoting the use of accommodations.
Goal is to increase the number of students with
significant cognitive disabilities who receive instruction
and assessments for the grade level in which the student
is enrolled.
Assessment Accommodations
Includes both students on IEPs and those students with
disabilities who are provided accommodations under
other acts (such as Section 504).
Appropriate accommodations provided to measure the
academic achievement, such as interoperability with,
and ability to use, assistive technology.
Alternate Assessments
Limited to students with significant cognitive disabilities
who have IEPs which include participation in such
assessments.
Negotiated rules propose that each state est. a
definition of “significant cognitive disability”
The total number of students 
assessed
 in a subject using
the alternate assessments cannot  exceed 1% of the
total number of all students in the state   who are
assessed.
Alternate Assessments
The ESSA prohibits a local cap on the percentage of
students administered an alternate assessment.
The LEA shall submit a justification to the SEA if the
percentage exceeds 1%.
The SEA shall provide “appropriate oversight” of any
LEA that submits such justification.
Parent Notice of Alternate Standards and
Alternate Assessment
Parents must be informed in the IEP process:
That their student’s academic achievement will be
measured based on alternate academic standards
and assessments; and
How participation in such assessments may delay  or
otherwise affect the student from completing the
requirements for a regular high school diploma.
Cannot preclude such students from attempting  to
complete the regular diploma requirements.
Required Knowledge of Staff
General/special education teachers and “other
appropriate staff.”
Ability to make appropriate use of assessment
accommodations.
Ability to know how to administer alternate assessments
.
Supplement Not Supplant
Federal funds must be used to supplement and in no
case supplant 
state and local resources
.
To demonstrate compliance, 
the LEA shall demonstrate
that the methodology used
 to allocate state and local
funds to each school receiving assistance under this part
ensures that the school receives all the state and local
funds it would otherwise receive if it were not receiving
Title I funds
.
IDEA Regulation Update
Alt. Assessment based on Modified Std.
Final regulations were issued in August 2015
amending the ESEA and the IDEA.
States are no longer authorized to define modified
academic achievement standards and develop
alternate assessments based on those modified
academic achievement standards for eligible
students with disabilities.
Proposed Regulations
Significant Disproportionality
Proposed regs would establish a standard methodology
States must use to determine whether significant
disproportionality based on race and ethnicity is occurring in
the State and in its LEAs
States would be required to address significant
disproportionality in the incidence, duration, and type of
disciplinary actions, including suspensions and expulsions, using
the same statutory remedies required to address significant
disproportionality in the identification and placement of
children with disabilities
General Education Interventions
Schools may choose to implement a multi-tiered system of
supports (MTSS), such as response to intervention (RTI) or positive
behavioral interventions and supports (PBIS) for those students
who may need additional academic and behavioral supports to
succeed in a general education environment.
“Children who do not, or minimally, respond to interventions 
must
be referred
 (emphasis added) for an evaluation to determine if
they are eligible for special education and related services” 
A parent may request an initial evaluation at any time to
determine eligibility under IDEA and the use of MTSS, such as RTI,
may not be used to delay or deny a full and individual
evaluation under the IDEA.  
  
 
Specific Learning Disabilities
There is nothing in the IDEA that would prohibit the use of
the terms dyslexia, dyscalculia, and dysgraphia in IDEA
evaluation, eligibility determinations, or IEP documents.
The Department’s guidance indicated that there was no
prohibition against but did not state that the terms must be
used in evaluations, eligibility determinations or in the IEP. 
 
 
Dear Colleague Letter 
 (OSERS)
Children in Nursing Homes
The State where the child’s parents reside is responsible for
conducting child find activities when warranted and for
ensuring FAPE is provided should the child be found eligible.
The out of state district could contractually arrange for the
school district where the nursing home is located to deliver
the IEP services but the placing State remains ultimately
responsible.
   
Dear Colleague Letter 
 (OSERS)
Behavior Assessment
The school failed to properly assess the student’s
behavior which denied the student a FAPE.
Data collected through observations by the behavioral
support aide does not meet the IDEA’s requirement that
a school “use a variety of assessment tools and
strategies”.
   
M.S. v. Lake Elsinore Unified School District 
Lesson Learned
Schools have an obligation to respond to a parent’s
request for an evaluation/reevaluation by providing
the parent with procedural safeguards
Written notice to either conduct the evaluation or deny the
evaluation
An evaluation/reevaluation should consider
information from multiple sources
Evaluations/reevaluations must be conducted by
qualified individuals
IEPs
Need for Current Assessment
The Court found that the lack of a comprehensive evaluation
of the student’s hearing denied the student  a FAPE.
The IDEA places an independent responsibility on the school
to initiate an evaluation/reevaluation when it is required
regardless of whether the parent sought an evaluation.
The information provided by the parent regarding the
student’s hearing put the school on notice of its duty to
evaluate.
    
Phyllene W. v. Huntsville City Board of Education
Evaluation Must Address 
    
 
ALL Suspected Disabilities
“...if a school district is on notice that a child may have a
particular disorder, it must assess that child for that
disorder, regardless of the subjective views of its staff
members concerning the likely outcome of such an
assessment.
FAPE was denied since without a sufficiently
comprehensive evaluation the parents  were deprived of
vital information.
    
Timothy O. v. Paso Robles Unified School District
Lesson Learned
Remind your staff that an evaluation of a student is
not just for eligibility purposes.
The evaluation must be sufficiently comprehensive to
address all of the student’s special education and
related services needs.
The school has the affirmative obligation to initiate
an evaluation/reevaluation when conditions warrant
such as the suspicion of another disability
Independent Educational Evaluations
IEE must “substantially comply” with state evaluation
requirements.
The financial cap of the IEE upheld since the parents never
submitted info. why an exception existed.
After denying reimbursement , the school district was not
required to initiate a due process hearing based on its
conclusion that the IEE did not meet school district criteria.
     
B. v. Orleans Parish School District 
Lesson Learned
A school district may establish policy requiring that criteria
for IEEs such as financial caps, state evaluation policies, etc.
be followed
 Such school district policy must allow parents to request an
exception to the policy for exceptional circumstances.
Schools must inform parents of such criteria 
before
 the IEE
is conducted.
Independent Educational Evaluations
The school district should have conducted a new
evaluation when the student was discharged from the
Juvenile Detention Center and reentered his home high
school.
Reliance on a previous school district’s evaluation in the
Detention Center was not appropriate.
Parents were entitled to an IEE at public expense.
    
D.A. v. Meridian Joint School District No. 2
Lesson Learned
Schools should invite input from the Team, including the
parents, to determine the need of an updated
evaluation.
When a student changes educational settings (in this
case for non-educational reasons) the Team should
review existing information and determine the need for
updated evaluation information
.
Independent Educational Evaluations
The parents may request an IEE at public expense if they
disagree with the school’s evaluation.
The school must request a due process hearing “without
undue delay” if it is refusing the parents’ request
This includes the right of a parent to request an IEE at
school district expense if they feel that the school did not
assess all of the students educational needs.
    
Letter to Baus
Lesson Learned
When initiating an evaluation or re-evaluation the
school must consider “information provided by the
parent”.
Request and document the parent’s input into the
scope of the evaluation.
Eligibility
Meets One or More of the Disability
Categories
Adversely Affects Educational Performance
In Need of Special Education
Specially Designed Instruction
Eligibility
Adverse Affect
Although the student had a disability, he was found ineligible
for special education based on the Team’s conclusion that
there was no adverse affect on the student’s educational
performance putting the student in need of special
education.
The Team properly considered the student’s overall
academic success and that none of the school’s assessments
found that the student’s behaviors impeded his participation
in the general curriculum.
   
D.A. v. Meridian Joint School District No.2
Lesson Learned
Adverse affect on educational performance includes
both academic and nonacademic factors.
The determination of adverse affect should result from
consideration of multiple sources of information.
A student’s overall success in the general curriculum will
be an important factor to consider.
Not all graded activities are deemed strictly academic.
Eligibility
A student who was attending a private school was not
eligible for special education as having a specific learning
disability.
The evidence presented by public school that the public
school staff’s classroom observations in the private school
showed that the student performed well in his classroom
and was generally engaged with his class.
The student was receiving good grades and received only
“tier one” accommodations which were provided to all
students.
    
Hawaii Department of Education (DOE) v. Patrick P.
Lesson Learned
The Courts will look at the student’s progress in the
general curriculum as one important indicator of
adverse impact on educational performance.
Schools should make every effort to gather data on
a private school’s performance in classroom as part
of the evaluation data used for eligibility
determinations.
Eligibility
A student with autism was determined to be no longer
eligible for IEP services since his disability did not adversely
affect his educational performance.
Although he had problematic behaviors at home, including
self injurious acts, his behavior at school was generally good.
The Court rejected the parents broader interpretation that
behavior at home should be considered in determining
adverse affect on educational performance.
   
Q.W. v. Board of Education of Fayette County 
Lesson Learned
Make sure the members of the eligibility team
understand that adverse affect on educational
performance means more than academics or
grades.
Clarify that the focus of the discussion will pertain to
the impact of the disability on the child’s
performance in the school setting.
FAPE Standard
The Supreme Court in the 
Rowley
 case
established two criteria in determining FAPE:
Have the procedures been adequately
complied with?
 and
Is the IEP reasonably calculated to enable the
child to receive educational benefits?
IEP Specificity
The parents were not denied a meaningful opportunity
to participate in the development of her IEP simply
because the school did not clarify exactly what its offer
of 30 minutes per week of social skills training entailed.
The IEP was reasonably calculated to address the
student’s educational needs, in particular, her
socialization needs without a one-to-one
paraprofessional.
Lainey C. v. Hawaii Department of Education
Lesson Learned
Although school staff should respond to reasonable
requests from the parent regarding the IEP, the school is
not legally obligated to get into specific details of the day
to day implementation of the IEP.
A 1:1 paraprofessional will not always be the appropriate
response to a student with social skill deficits.
Staff needs to be thoughtful of the words used---helpful v.
necessary
Parent Participation
FAPE denied when the school held the IEP Team meeting
in spite of the fact that the parents informed the district
four days ahead of time that they would be unable to
attend.
 A school district can make an IEP Team decision without
the parents only if it is unable to obtain their
participation which was not the case here.
   
D.B. v. Santa Monica-Malibu Unified School District
Parent Participation
The school did not violate parental rights to be
meaningful participants by holding two IEP meetings
during the summer while the parents were out of the
country.
The school offered numerous dates to the parents for
an IEP meeting and also offered alternative means of
participating which were not accepted.
The parents were also provided with transcripts of the
summer meetings.
    
Dervishi v. Stamford Board of Education
Parent Participation
School engaged in numerous attempts to schedule an
IEP meeting.
An IEP Team meeting was held without the parent in
attendance when the parent informed the school she
was sick the day of the scheduled meeting.
The Court held that although the parent never refused
to participate the school was found not to have
violated the parent’s right to participate since the
student’s IEP was in urgent need of being updated.
    
A.L. v. Jackson County School Board
Lesson Learned
Schedule the annual IEP review sufficiently before the
due date to allow for the need to reschedule the
meeting due to parental or staff needs.
Document 
all attempts the school has engaged in to find
a mutually agreeable time and date for the IEP Team
meeting.
Caution!!! Hold the meeting without parent participation
only if the school is unable to get the parents to attend
the IEP Team meeting including alternative means of
participating.
IEP Team Membership
The student’s general education teachers were invited
but did not attend the IEP Team meeting.
The Court concluded that there was no procedural
violation of the IDEA since the Asst. Principal who
attended also taught a Spanish class at the school.
The Court observed that even if there was a
procedural violation it was “harmless because it did
not deprive [the student] of an educational opportunity
or infringe on his parents’ participatory rights.”
     
Z.R. v. Oak Park Unified School District
Lesson Learned
Remember the IDEA requires the participation of
“not less than one regular education teacher of the
child” if the child 
is
 or 
may be 
participating in the
regular education environment.
It is up to the school district to determine what
teacher(s) of the student will be in attendance.
Attorney Attendance at
IEP Team Meetings
The parent has the right to bring another individual,
including their attorney, with them to a scheduled IEP Team
meeting.
Unlike the school, the parent has no legal obligation to
inform the school of others who will be attending the IEP
meeting with them including their attorney.
OSEP did observe that “in the spirit of cooperation and
working together as partners in the child’s education, a
parent should provide advance notice to the public agency
if he or she intends to bring an attorney to the IEP
meeting.”
    
Letter to Andel
Lesson Learned
Ensure that all participants expected to attend the
IEP meeting, including the school’s attorney if
applicable, are included in the notice of the IEP
meeting.
Consider including in the notice an invitation for the
parent to inform the school in advance if they have
plans to bring others with them to the meeting.
Progress Reports
The IEPs contained little or no progress reporting or
measurement data and where progress was reported.
However, there was “constant communication” between
the parents and the student’s special education teacher
both through face-to-face meetings and a "back-and-
forth notebook”
The gaps in the IEP progress  reporting  did not inhibit the
parents from meaningful participation.
    
Endrew F. v. Douglas County School District
Lesson Learned
In order to avoid legal challenges, ensure that the IEP
addresses how the student’s progress under their IEP
goals will be measured.
Best to use multiple sources of information instead of
relying on a single source.
Also, ensure that the IEP addresses how and how often
the parents will be notified of their student’s progress.
IEP Measurable Goals
The parents alleged that the IEP goals were vague and not
measurable as required by the IDEA.
The Court held any vagueness in the 17 goals was
ameliorated by the specificity of the 96 short term
objectives.
The objectives provided considerable detail as to how the
broader goals would be implemented and measured.
    
D.A.B. v. New York City Department of Education
Lesson Learned
The IDEA requires that there be measurable goals
which can be understood by not only the IEP Team
but others who will be responsible for the IEP
implementation.
As one Court found this means that “the substance
of the IEP must be intellectually accessible to
parents” so that they could make an informed
decision as to its appropriateness.
IEP “Misinformation”
The parents visited the school that their student would
be attending and alleged they were told by the “tour
guide” that the proposed school did not have the
requisite staff or services called for in the IEP.
The Court concluded that the evidence “sufficiently
demonstrated” that the proposed placement had the
ability to fully implement the IEP despite any
misinformation provided to the parents.
    
B.P. v. New York City
Lesson Learned
Ensure that in the event there is a visit to the
proposed placement, the staff member escorting
the parent has sufficient information about the
student’s IEP to respond to questions.
Follow up with the parents if questions arise that
can’t be answered during the visit.
IEP Implementation
Although the behavioral component of the student’s IEP was
implemented at school, it was not implemented for a 4 week
period when the student was placed in home instruction.
As the lower court noted “The Plaintiff cites no authority, and
the Court is aware of none, for the proposition that the IDEA
required the District to transplant the entirety of the services
offered in plaintiff's IEP, which contemplated in-school
instruction, to plaintiff's home environment during the interim
periods…”.
 Since the services were tied to a particular location (in-school)
there was not a material failure to implement the IEP.
     
C.L.v. Lucia Mar Unified School District 
Lesson Learned
If the student’s placement will be changed for a
short time and the IEP will not be fully implemented
as written, the IEP Team should develop an interim
IEP with all the services that will be provided.
The parent should clearly understand what, if any,
components of the IEP will not be implemented.
Taping an IEP Meeting
The State Education Agency or Local Education Agency has
the option to require, prohibit, limit or otherwise regulate
the use of recording devices at IEP meetings.
Must be uniformly applied.
If the policy requires that parents provide the school notice
before permitting the recording device at an IEP Team
meeting, the school must schedule the meeting at a time
that allows the parent to meet that notice requirement.
   
Letter to Savit 
(OSEP)
Lesson Learned
Be Aware of State Law!!!
Don’t forget Mississippi has a state statute that provides:
The parent/guardian or LEA shall have the right to audio
record the proceedings of IEP Team meetings.
The parent/guardian or LEA shall notify the members of
the IEP Team of his, her, or its intent to audio record a
meeting at 24 hours prior to the meeting.
Section 37-23-137(8)
IEP Procedural Violations
The cumulative effect of the procedural violations resulted in a
denial of FAPE.
Regarding the evaluation data considered, “the burden rested
with the [school district] to demonstrate which evaluative
materials were reviewed during each [IEP] meeting in reaching
the terms of the IEPs”.
They showed “pattern of indifference to the procedural
requirements of the IDEA and carelessness in formulating the
[student’s] IEPs”.
    
L.O. v. New York City Department of Education
Lesson Learned
Minutes of IEP meetings can be very helpful in showing
what the Team considered.
Prior Written Notice must be provided when the IEP is
proposing to or refusing to change the placement or FAPE.
PWN must include “a description of each evaluation,
assessment, record or report” the Team used as a basis
for their action.
FAPE--Substantive Standard
The Court held that the correct standard for FAPE is
“some educational benefit” which has always meant
more than mere minimal or trivial progress.
When Congress amended the IDEA in 1997 and 2004
the definition of FAPE was not changed.
Rowley 
 still represents the FAPE standard
    
O.S. v. Fairfax County School Board 
FAPE--Substantive Standard
The Court affirmed that the 
Rowley
 Court’s “some
educational benefit” language sets the standard in
defining a FAPE.
Some educational benefit is interpreted  to mean that
“the educational benefit mandated by IDEA  must
merely be ‘more than de minimis’”.
   
Endrew F. v. Douglas County School District
   Appeal pending in the U.S. Supreme Court
Methodology
The goals in the IEP came from a report created by
the private special education school, however, the
IEP did not require that the methodology from the
private school be used to implement the goals.
The Court concluded that a "failure to consider any
of the evidence regarding ... methodology ... is
precisely the type of determination to which courts
need not defer.”
   
E.H. v. New York City Department of Education
Lesson Learned
Although the Supreme Court cautioned Courts about
getting involved in methodology decisions, some Courts
have held that a school must address why a particular
methodology previously used is no longer required to
provide FAPE.
If a school adopts goals from a previous placement, the
Team should discuss how the services in the IEP are
reasonably calculated to allow the student to receive
educational benefit.
Emotional Needs and FAPE
First, the Court  rejected the argument that FAPE was
denied since the annual IEP review did not take place
since the parent agreed to the course of action.
Second, the Court noted the student who was sexually
assaulted off campus was making academic progress
and received a FAPE.
The IEP Team worked closely with the student’s
medical/mental health team and implemented their
recommendations for the student.
   
Sneitzer v. Iowa Department of Education
Lesson Learned
Schools need to be empathetic and supportive of
students and their families who experience
emotional/physical trauma but are not responsible for
all of the student’s needs.
Work with the parent to obtain information from the
student’s physician and mental health professionals
regarding the student’s 
educational 
needs.
Document 
a school’s response to a  parent’s request to
vary from the IDEA’s procedural requirements such as
annual IEP reviews.
FAPE and IEP Implementation
Whether a FAPE is offered must be based on an
evaluation of the written IEP and that “speculation that the
school district would not adequately adhere to the IEP is
not an appropriate basis for a unilateral placement.”
However, it is not speculative to find that an IEP cannot be
implemented at a proposed placement that lacks the
services required by the IEP such as the size of the school,
student-teacher ratio, the appropriateness of the language
based program, etc.
Evidence supported the conclusion that FAPE was offered.
    
M.O. v. New York City 
Lesson Learned
Be prepared to discuss with the parent how the IEP
will be fully implemented.
However, not 
all
 IEP  implementation details need be
reflected in the IEP document.
Ensure that ALL staff be informed of their SPECIFIC
RESPONSIBILITY in implementing the IEP.
IEP Goals
Access to the General Curriculum
Generally, an IEP “must be aligned with the State’s
academic content standards for the grade in which the
child is enrolled”  in order to have meaningful access to the
general curriculum.
This must guide but not replace the IEP Team’s
individualized consideration of the student.
If a child is performing significantly below grade level, the
goals should be “ambitious but achievable”
Goals need not necessarily result in the child reaching
grade level within the year covered by the IEP.
    
Dear Colleague Letter
Lesson Learned
The IEP needs to ensure access and progress in the general
curriculum.
There should be a presumption that the student will receive
instruction for the grade level in which they are enrolled
and the IEP goals should so reflect.
However, don’t forget about the “I” in the IEP for those
students who are significantly below grade level.
Speech/Language Services
Students With Autism
OSEP issued a letter to the field raising concerns that a
growing number of children with autism may not be receiving
needed speech and language services.
“Some IDEA programs may be including applied behavior
analysis (ABA) therapists exclusively without including, or
considering input from, speech language pathologists and
other professionals who provide different types of specific
therapies that may be appropriate for children with ASD”
    
Dear Colleague Letter 
 (OSEP)
Assistive Technology
Communication Needs
A student who is deaf was denied a FAPE since the IEP did
not provide appropriate assistive technology services such as
Communication Access Realtime Translation or other similar
speech to text technology as recommended by two outside
evaluators.
The hearing officer applied the correct FAPE legal standard
not the nondiscrimination standard from the Americans With
Disabilities Act.
    
DeKalb County Board of Education v. Manifold
Lesson Learned
IEP Teams are required to consider the communication needs
of students, including assistive technology needs, in
developing an IEP.
The IEP Team must consider the recommendations of
independent evaluators.
If the Team rejects the independent evaluators
recommendations, the parent must receive written notice of
why the Team is refusing to change the provision of FAPE.
Related Services
Medical Needs
A student with a chronic epileptic seizure  was denied
a FAPE since the IEP did not include a trained bus
aide to accompany the student.
However, the bus aide was not required to administer
the student’s medication unless the school bus could
not reach either the student’s home or school within
five minutes after the seizure begins without
additional information from the student’s doctors.
     
Oconee County School District v. A.B.
Lesson Learned
Related services that the student needs must also be
considered in determining whether such services are
needed at school and/or on the school bus.
The parents refusal to allow the school to speak
with the student’s doctor will be considered in
determining what responsibilities the school has in
meeting the student’s needs.
IEPs and
 Emergency Health Procedures
A student with significant medical conditions had protocols in
place for emergency procedures such as the Heimlich
maneuver and CPR to be administered by trained school staff.
The Court held that the IDEA did not require that the student’s
individual aide be trained in those procedures.
The Section 504 and ADA claims were sent back to the lower
court for an explanation of why those claims were dismissed by
the court.
SE.H. v. Board of Education of Anne Arundel County Public 
Schools 
Lesson Learned
Ensure that staff are aware of any unique health
needs of the student and how to respond.
Ensure that adequate staff are trained to act in
emergency health situations.
Plan for such support during field trips, extra-
curricular activities, transportation, etc.
Prospective Placements
A hearing officer’s order directing the school district to
consider placing the student  in a non-approved private
school was contrary to the IDEA.
The prospective placement by a hearing officer/ school
district in a private special education school must provide
a FAPE which means that placement meets state
standards.
Z.H. v. New York City 
Lesson Learned
Since a school must provide the student a FAPE, that is,
special  education services that meet state standards,
hearing officers in ordering prospective placements are
limited to state approved placements.
Prospective placements are distinguished from
reimbursement for unilateral parent placements.
LRE and Preschoolers
The LRE for a pre-schooler with autism was a collaborative
pre-school classroom not a general education pre-school
class.
Analysis must consider a continuum of placements and be
focused on the IEP not the preferred program.
Constant assistance of a 1:1 paraprofessional would
create dependence by the student.
 
A.R. v. Santa Monica Malibu School District
Lesson Learned
Don’t forget that the IDEA’s LRE provisions apply to pre-
school aged children with disabilities.
The Team must consider a continuum of age appropriate
placements.
Parent preference does not override the LRE requirement.
An full time individual paraprofessional can in many ways
be deemed restrictive.
Parental Visit to Proposed Class
The Court held that there is no specific right to view a
proposed placement under the IDEA.
OSEP stated that such determinations may be addressed by
State and/or local policy.
The OSEP letter further encourages the parties to work
together including opportunities for parents to observe their
children’s classrooms and proposed placements.
    
John and Maureen M. v. Cumberland Public School
Lesson Learned #1
There is a distinction between placement and location.
A public agency may have two or more equally
appropriate locations that meet the child’s special
education and related service needs and 
school
administrators should have the flexibility to assign the
child to a particular school or classroom
, provided that
determination is consistent with the decision of the group
determining placement.
Comments to the 2006 IDEA Regulations
Federal Register, Page 46587
Lesson Learned #2
Should a particular class or program be discussed during
the IEP meeting, be prepared to answer questions that the
parent may have.
Consider offering the parents an opportunity to visit the
class/program and speak with the staff about their child’s
potential placement.
Be careful to protect the confidentiality of other students.
Need for a Continuum!!??!!
Parents who want to maintain their students in special
education centers were given the right to intervene in a
class action lawsuit challenging the new school district
policy limiting enrollment in such centers.
The denial of intervention would impair their ability to
safeguard the interests of their students in seeking
retention of the special education centers as placement
options.
   
Smith v. Los Angeles Unified School District 
Unilateral Placements
Factors for Reimbursement
IEP did not provide FAPE, and
Parental Placement is Appropriate
Need not be an approved special education facility
Personnel need not be credentialed
Equitable Factors
Parental notice of disagreement and intent to make
a unilateral placement requesting public payment
Providing school opportunity to evaluate student
Unreasonable actions by the parents
 
Burlington v. Department of Education and Florence
County v. Carter
Unilateral Placement
Stay Put
Tuition reimbursement denied since the IEP offered the
student a FAPE and the private placement was not
appropriate for the subsequent school year in which no
IEP was developed.
However,  the school district violated its “stay put”
obligations by not paying for the services it had
agreed to pay for while the student was enrolled in the
private school in the last implemented IEP during the
course of the litigation.
  
Doe v. East Lyme Board of Education
Lesson Learned
Be thoughtful about the legal commitments a school
makes in terms of publicly funded services for a
parental private placement.
Seek counsel about developing an IEP for a student
who has been placed by their parents in a private
school.
Remember that stay put applies as soon as the parent
requests a due process hearing.
Stay put is the last implemented IEP
Parent Actions and Reimbursement
The Court of Appeals denied reimbursement for a
unilateral placement on the grounds that the parents’
actions were unreasonable.
“the parents adopted an "all-or-nothing" approach to the
development of [the student’s] IEP and that they thereby
adamantly refused to consider any of [the school district’s]
alternative proposals”
   
Rockwall Independent School District
Lesson Learned
Document the good faith efforts of the school in working
with the parents to determine an appropriate IEP.
Consider mediation if the IEP process comes to a stand-still.
Even if the parents choose to remove themselves from the
IEP process, the IEP should be finalized by the Team after
following all appropriate procedures.
Behavior Plans
The Court held that the alleged failure to  conduct a
functional behavioral assessment  or develop a
behavior intervention plan was “irrelevant” since the
IDEA does not require such assessment or plan
outside of certain disciplinary actions which were not
present here.
Although the school was having difficulty managing
the student’s behavior it was in the process of
reassessing his behavior interventions when the
student was withdrawn from school.
   
Endrew F. v. Douglas County School District
Lesson Learned
The IDEA requires that a student’s behavior be assessed
and addressed if the student’s behavior is interfering with
their learning or the learning of others by providing
positive behavioral interventions, supports and strategies.
The terms “FBA” and “BIP” are only used and required if
the student is engaged in a disciplinary change of
placement.
Behavior
There was a determination that the behavior (taking a pic
of another student using the bathroom) was not a
manifestation of the student’s disability.
The student was then placed in a disciplinary alternative
educational placement for 60 days.
The Court dismissed the Sec. 504 claim since the parents
did not allege facts supporting the allegation that the
school acted based on the disability or that the behavioral
infraction was the result of the student’s ADHD.
    
C.C. v. Hurst-Euless-Bedford Independent School District 
Lesson Learned
Maintain good records of the Team’s manifestation
determination.
Remember that all students on IEPs have a right to
continued services regardless of the behavior or
relationship to their disability.
Be cautious before recommending to others that criminal
charges should be filed.
Constitutional Rts and Behavior
A student was found to be consuming illegal drugs with a staff
member while in the school and placed in an alternative
school after a determination that the behavior was not a
manifestation of his disability.
The parents rejected the alternative placement.
The Court held “an entitlement to public education does not
include the right to attend a particular school” and a student’s
transfer from a regular high school to an alternative school
does implicate the Constitutional right to due process.
   
Alex K. v. Freedom Area School District
Lesson Learned
Remember the Court did not engage in a FAPE
analysis since this was a lawsuit seeking monetary
damages for a Constitutional violation.
Courts generally defer to educational decisions
when the process is followed and the educators are
able to articulate why they made their decisions.
Bullying
There is no Federal law or regulation directly
addressing the issue of bullying.
United States Department of Education, Office
of Special Education Programs (OSEP) has
addressed bullying and the provision of FAPE
under the IDEA.
Bullying
Role of the IEP Team
Addresses whether bullying has impacted the student’s
ability to receive “meaningful educational benefit”
Determine if additional assessments are necessary
If bullying impacts FAPE, revise IEP with
additional/different services as required
Determine if a placement change is necessary
Procedural safeguards afforded the parent
    
Dear Colleague Letter
 (OSEP)
Bullying and OCR
The bullying of a student on any basis (whether disability
related or not) who is receiving services and/or
accommodations under a 504 plan may result in a denial
of FAPE that must be remedied.
A school’s compliance with state law and/or local school
policy is not sufficient to meet the school’s responsibility
under Section 504.
The Section 504 Team must determine whether as a result
of bullying services/placement need to be changed.
    
Responding to Bullying of Students with Disabilities
Lesson Learned
Compliance with state law and/or school
district’s bullying policy does not fulfill the
school district’s obligation to ensure that the
student with a disability who is a target of
bullying is receiving a FAPE under their IEP or
Sec.504 plan.
IEPs and Bullying
The Court held that FAPE was denied based on the fact
that the IEP Team refused to discuss the issue of bullying.
The school district’s “persistent refusal to discuss [the
student’s] bullying at important junctures in the
development of her IEP significantly impeded [the
parents’] right to participate in the development” of the
IEP.
No need for the Court to address whether bullying
substantively denied the student a FAPE.
    
T.K. v. New York City 
Lesson Learned
If a student on an IEP is being bullied, the IEP
Team must be convened to address what, if any,
changes to the IEP are warranted in order to
provide FAPE.
The IEP should  be written in language which is
understandable by the parents.
Investigation Information
A school is allowed to share some information regarding
the outcome of the school’s investigation of a harassment
complaint with the parent of the student who had been
subjected to harassment without violating FERPA.
“the Department has long viewed FERPA as permitting a
school to disclose to the parent of a harassed student (or
to an adult student) information about the sanction
imposed upon a student who was found to have engaged
in harassment when that sanction directly relates to the
harassed student.”
     
Letter to Soukup 
(FPCO 2015)
 
Investigation Information
There is a limit on a parent’s right to inspect and review
their student’s educational records when a record contains
information on other students.
“In cases where joint records cannot be easily redacted or
the personal identifiable information omitted, the  school
district may satisfy the parental request for access by
informing the parent about the contents of the specific
record in question.”
   
Letter to Prescott
Access to Video Tapes
The Court held that the parents of a student allegedly
bullied on the school bus must be given access to the bus
tapes even though the tapes are considered educational
records under FERPA.
The Court ordered, in compliance with FERPA requirements,
that prior to providing the tapes to the parents of the
student victim that the parents of the other students on the
tape be notified of the court ordered disclosure.
    
Goldberg v. Regional School District #18
Lesson Learned
FERPA allows a 
Court,
 not a hearing officer, to allow
disclosure of educational records without parental consent.
Consult with your school attorney should you get a request
for information such as video tapes.
Remember the school has an obligation to investigate
alleged bullying incidents when it has reason to believe
bullying has taken place.
Harassment Based on Disability
The Court concluded that the school was not
deliberately indifferent since the school:
Investigated each reported incident;
Used disciplinary measures such as warnings, parent
conferences, detentions and suspensions against the
offending students;
Assigned a paraprofessional to follow the student
during the school day to monitor his safety.
A school is not held to the legal standard of
eliminating student on student harassment.
    
S.B. v. Board of Education of Harford County
Lesson Learned
A case for monetary damages under Sec. 504/ADA
requires a showing of “deliberate indifference”.
This is a higher standard than a showing of a denial of
FAPE under the IDEA.
Every allegation of harassment needs to be investigated
even if the student/parent has previously filed numerous
complaints.
Liability
The now adult student and parents alleged that the former
student was not provided the accommodations stated in his
IEP, that school personnel ignored the parents  phone calls
and attempts to schedule meetings and ignored eight
requests to view their student’s educational records.
The Court held that the parents had legal standing to sue
based on a delegation of rts. and independent claims
The Court also held the IDEA claims against school personnel
in their personal capacity should not have been dismissed.
    
Stanek v St. Charles Community Unit School District
Lesson Learned
Only one reported case found that a school employee was
personally liable under the IDEA which was based on the
teacher’s deliberate refusal to implement the IEP.
Schools should maintain documentation of their efforts to
implement the IEP and responses to parents when
warranted.
This decision should be closely followed to see if the Court
actually finds school staff liable under the IDEA.
Liability
The Director of Sp Ed initiated a referral to  social services
since she had reason to believe that the father of a student
with an intellectual disability engaged in inappropriate
physical behavior with the student.
The allegations were found to be unsubstantiated and the
father filed a lawsuit against the Director.
The Court held that the Director was not entitled to qualified
immunity since the parent’s allegations established that the
Director was motivated at least in part by the father’s
advocacy on behalf of his student.
    
Wenk v. O’Reilly
Lesson Learned
Should a report to social services be necessary as a
mandated reporter under state law, be specific in the
report as to what information you relied on to substantiate
your belief that a report was required.
Consider requiring the staff member who shared info. with
you to speak directly to the social services.
Maintain documentation of the information and how you
obtained it in a separate file from the student’s education
records.
Liability and Behavior Interventions
The use of an unlocked “safe room” was in the IEP’s behavior
component.
The sp ed teacher was entitled to qualified immunity in a
lawsuit alleging Constitutional violations and seeking
monetary damages.
“at the time she acted, it would not have been clear to a
reasonable official that placing [the student] in the safe
room, as part of his aversive and behavioral intervention
plan, was an unconstitutional seizure” or violated the
student’s substantive due process rights.
    
Payne v. Peninsula School District 
Lesson Learned
Ensure that data is maintained when using interventions
such as time out.
Check with your school district to determine if you as a
staff member is covered by the school’s insurance if sued
in your personal capacity for carrying out your
educational responsibilities under the IEP.
Retaliation Claims
A former teacher and manager of a special education
program for students with emotional and behavioral
disabilities sued the school district alleging retaliation for
exercising her 1
st
 Amendment rights.
The Court held that her speech was not protected by the
1
st
 Amendment since her communication to the
administration and parents was made in her role as “public
employee” not as a private citizen.
   
Tristan Coomes v. Edmonds School District No.15 
Lesson Learned
If taking an employment action against a disgruntled
employee, ensure that you are able to articulate the
educational basis for your decision to avoid a charge of
retaliation.
Of course, maintain solid documentation of the school’s
actions.
Compensatory Education
The District Ct. ordered compensatory services to be
provided at “an appropriate residential school” to be
determined by the student’s IEP Team after finding that
FAPE was denied.
The Courts of Appeal held that the District Ct. violated the
IDEA by delegating the placement issue to the IEP Team
    
M.S. v. Utah School for the Deaf and Blind
Lesson Learned
If the parents are seeking compensatory education as a
remedy, the parties in a due process hearing or litigation
need to submit evidence on what an appropriate
compensatory education program would be.
This would be an argument in the alternative not
admitting that the school district denied FAPE.
Attorney’s Fees
The parents were prevailing parties in their due process
complaint regarding an IEE.
In a companion decision, the Court also held that the
student was not eligible for special education. 
  
 
However, the Court denied an order reimbursing their
attorney’s fees since they were not a “parent of a child
with a disability” under the IDEA.
   
D.A. v. Meridian Joint School District No. 2
Attorney’s Fees
Although prevailing on their Motion for a “stay put”
order, the Court held that the parents were not a
prevailing party for attorney’s fees purposes under the
IDEA.
The “stay put” order was not a ruling on the merits of
the parent’s due process hearing complaint and did not
alter the legal relationship of the parties.
    
Tina M. v. St. Tammany Parish School Board
Statute of Limitations
The Court held that the IDEA’s statute of limitations only
applies to time requirements for the filing of the due
process hearing complaint.
The statute of limitations does “not act as a cap on a
child’s remedy for timely filed claims that happen to date
back more than two years before the complaint is filed.”
 Therefore, compensatory education can be awarded to
whatever extent is necessary to make up for the child’s
denial of FAPE and is not limited to the two year period.
     
G.L. v. Ligonier Valley School District
Hearing Guidelines
A "guideline” was issued by a state’s Office of
Administrative Hearings, which stated that, "[i]n all but
exceptional circumstances, evidentiary hearings should be
concluded within three hearing days of six hours each.”
OSEP stated that the guideline appears, on its face, to be
consistent with the IDEA because it permits a hearing
officer to extend the time limitation for evidentiary
hearings under “exceptional circumstances”.
   
Letter to Kane
Due Process Hearings
The Court upheld a pre-hearing order limiting the time for
each side to present their evidence.
“…IHO’s[Impartial Hearing Officers], like judges, have
the inherent authority to manage hearings to avoid
needless waste and delay. They should exercise control
when necessary to manage the proceedings and eliminate
unnecessary costs and redundancy, including imposing
reasonable time limits where appropriate.”
   
L.S. v. Board of Education of Lansing School District 
State Administrative Complaints
If the SEA has determined that corrective actions are
necessary as a result of an administrative complaint
investigation and a due process hearing is subsequently
filed on the same issues, the SEA cannot permit the school
district to delay implementation of the corrective actions.
SEAs have broad flexibility to determine the appropriate
remedy or corrective actions
SEAs can order child-specific services  be provided in the IEP
Another option is for the SEA to order the IEP Team to be
reconvened to develop the IEP
Letter to Deaton 
IDEA Appeals/Jury Trials
The parents appealed a due process hearing order
denying them reimbursement of a private school
placement requesting a jury trial.
The Court held that since the parents are only seeking
equitable relief they were not entitled to a jury trial.
     
Mr. and Mrs. A. v Greenwich Board of Education
Motion to Stay Hearing Officer Order
The Court denied the school’s Motion to Stay the order
pending the outcome of the judicial appeal.
The Court applied four factors in considering the request:
(1) the school was not likely to succeed on the merits of
their appeal; (2) the “irreparable harm” to the school
district is outweighed by other factors; (3) any significant
delay in providing the comp ed would substantially injure
the student; and (4) the public interests of the IDEA.
 
Willington Board of Education v. G.W.
Resolution Sessions
Parties have the option of amending the IEP during a
resolution session without the need of having a full IEP
Team meeting since the IDEA allows such amendment if
both the parent and school district agree.
However, even if “stay put” is in place there is nothing in
the IDEA that relieves a school district of its responsibility
to have at least an annual IEP Team meeting.
Unlike mediation, the IDEA has no provision that requires
that resolution discussions be kept confidential absent an
enforceable agreement by the parties.
   
Letter to Cohen
Sec.504 Discrimination Claims
The parent’s consent to the IEP change of placement does
not bar the parent from challenging that placement under
Sec.504.
The parents do not have the expertise “nor the legal duty”
to determine what accommodations might allow their
student to remain in a regular education environment.
   
A.G. v. Paradise Valley Unified School District
Service Animals
ADA or IDEA Issues??
A school administrator denied the student’s request to
bring her service dog to school since the student's
paraprofessional could provide the services.
The Court dismissed the lawsuit against the school and
staff for failing to exhaust the IDEA due process hearing
procedures.
The Court stated that this issue was best left to the IEP
Team since it in effect was an issue of FAPE.
 
Fry v. Napoleon Community Schools
 (Appeal to the U.S. Supreme Ct. pending)
 
Mahalo!!!
Slide Note
Embed
Share

The presentation at the Mississippi Directors Conference in June 2016 highlighted important updates in special education law, including the impact of the Every Student Succeeds Act, changes in teacher qualifications, requirements for special education teachers, accommodations, assessment accommodations, and guidelines for alternate assessments. These updates focus on ensuring students with disabilities receive appropriate support and education.


Uploaded on Sep 08, 2024 | 0 Views


Download Presentation

Please find below an Image/Link to download the presentation.

The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.

E N D

Presentation Transcript


  1. SPECIAL EDUCATION LAW UPDATE: LESSONS LEARNED Mississippi Directors Conference Mississippi Department of Education June 2016 Presenter: Art Cernosia

  2. Every Student Succeeds Act (ESSA) Reauthorizes the Elementary and Secondary Act of 1965 Replaces the No Child Left Behind Act Signed into law in December 2015

  3. Teacher Qualifications Highly Qualified Teacher requirement deleted, including HQT in the IDEA. Effective August 1, 2016 State law impact???? Eliminates mandated teacher evaluation systems.

  4. Special Education Teachers Special ed teachers must meet full state certification requirements (including alternative routes); or Pass the state s special ed teacher licensing exam. No waivers for emergency, temporary, or provisional status. Must hold at least a bachelor s degree.

  5. Accommodations SEAs must develop and disseminate information promoting the use of accommodations. Goal is to increase the number of students with significant cognitive disabilities who receive instruction and assessments for the grade level in which the student is enrolled.

  6. Assessment Accommodations Includes both students on IEPs and those students with disabilities who are provided accommodations under other acts (such as Section 504). Appropriate accommodations provided to measure the academic achievement, such as interoperability with, and ability to use, assistive technology.

  7. Alternate Assessments Limited to students with significant cognitive disabilities who have IEPs which include participation in such assessments. Negotiated rules propose that each state est. a definition of significant cognitive disability The total number of students assessed in a subject using the alternate assessments cannot exceed 1% of the total number of all students in the state who are assessed.

  8. Alternate Assessments The ESSA prohibits a local cap on the percentage of students administered an alternate assessment. The LEA shall submit a justification to the SEA if the percentage exceeds 1%. The SEA shall provide appropriate oversight of any LEA that submits such justification.

  9. Parent Notice of Alternate Standards and Alternate Assessment Parents must be informed in the IEP process: That their student s academic achievement will be measured based on alternate academic standards and assessments; and How participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma. Cannot preclude such students from attempting to complete the regular diploma requirements.

  10. Required Knowledge of Staff General/special education teachers and other appropriate staff. Ability to make appropriate use of assessment accommodations. Ability to know how to administer alternate assessments.

  11. Supplement Not Supplant Federal funds must be used to supplement and in no case supplant state and local resources. To demonstrate compliance, the LEA shall demonstrate that the methodology used to allocate state and local funds to each school receiving assistance under this part ensures that the school receives all the state and local funds it would otherwise receive if it were not receiving Title I funds.

  12. IDEA Regulation Update Alt. Assessment based on Modified Std. Final regulations were issued in August 2015 amending the ESEA and the IDEA. States are no longer authorized to define modified academic achievement standards and develop alternate assessments based on those modified academic achievement standards for eligible students with disabilities.

  13. Proposed Regulations Significant Disproportionality Proposed regs would establish a standard methodology States must use to determine whether significant disproportionality based on race and ethnicity is occurring in the State and in its LEAs States would be required to address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities

  14. General Education Interventions Schools may choose to implement a multi-tiered system of supports (MTSS), such as response to intervention (RTI) or positive behavioral interventions and supports (PBIS) for those students who may need additional academic and behavioral supports to succeed in a general education environment. Children who do not, or minimally, respond to interventions must be referred (emphasis added) for an evaluation to determine if they are eligible for special education and related services A parent may request an initial evaluation at any time to determine eligibility under IDEA and the use of MTSS, such as RTI, may not be used to delay or deny a full and individual evaluation under the IDEA.

  15. Specific Learning Disabilities There is nothing in the IDEA that would prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in IDEA evaluation, eligibility determinations, or IEP documents. The Department s guidance indicated that there was no prohibition against but did not state that the terms must be used in evaluations, eligibility determinations or in the IEP. Dear Colleague Letter (OSERS)

  16. Children in Nursing Homes The State where the child s parents reside is responsible for conducting child find activities when warranted and for ensuring FAPE is provided should the child be found eligible. The out of state district could contractually arrange for the school district where the nursing home is located to deliver the IEP services but the placing State remains ultimately responsible. Dear Colleague Letter (OSERS)

  17. Behavior Assessment The school failed to properly assess the student s behavior which denied the student a FAPE. Data collected through observations by the behavioral support aide does not meet the IDEA s requirement that a school use a variety of assessment tools and strategies . M.S. v. Lake Elsinore Unified School District

  18. Lesson Learned Schools have an obligation to respond to a parent s request for an evaluation/reevaluation by providing the parent with procedural safeguards Written notice to either conduct the evaluation or deny the evaluation An evaluation/reevaluation should consider information from multiple sources Evaluations/reevaluations must be conducted by qualified individuals

  19. IEPs Need for Current Assessment The Court found that the lack of a comprehensive evaluation of the student s hearing denied the student a FAPE. The IDEA places an independent responsibility on the school to initiate an evaluation/reevaluation when it is required regardless of whether the parent sought an evaluation. The information provided by the parent regarding the student s hearing put the school on notice of its duty to evaluate. Phyllene W. v. Huntsville City Board of Education

  20. Evaluation Must Address ALL Suspected Disabilities ...if a school district is on notice that a child may have a particular disorder, it must assess that child for that disorder, regardless of the subjective views of its staff members concerning the likely outcome of such an assessment. FAPE was denied since without a sufficiently comprehensive evaluation the parents were deprived of vital information. Timothy O. v. Paso Robles Unified School District

  21. Lesson Learned Remind your staff that an evaluation of a student is not just for eligibility purposes. The evaluation must be sufficiently comprehensive to address all of the student s special education and related services needs. The school has the affirmative obligation to initiate an evaluation/reevaluation when conditions warrant such as the suspicion of another disability

  22. Independent Educational Evaluations IEE must substantially comply with state evaluation requirements. The financial cap of the IEE upheld since the parents never submitted info. why an exception existed. After denying reimbursement , the school district was not required to initiate a due process hearing based on its conclusion that the IEE did not meet school district criteria. B. v. Orleans Parish School District

  23. Lesson Learned A school district may establish policy requiring that criteria for IEEs such as financial caps, state evaluation policies, etc. be followed Such school district policy must allow parents to request an exception to the policy for exceptional circumstances. Schools must inform parents of such criteria before the IEE is conducted.

  24. Independent Educational Evaluations The school district should have conducted a new evaluation when the student was discharged from the Juvenile Detention Center and reentered his home high school. Reliance on a previous school district s evaluation in the Detention Center was not appropriate. Parents were entitled to an IEE at public expense. D.A. v. Meridian Joint School District No. 2

  25. Lesson Learned Schools should invite input from the Team, including the parents, to determine the need of an updated evaluation. When a student changes educational settings (in this case for non-educational reasons) the Team should review existing information and determine the need for updated evaluation information.

  26. Independent Educational Evaluations The parents may request an IEE at public expense if they disagree with the school s evaluation. The school must request a due process hearing without undue delay if it is refusing the parents request This includes the right of a parent to request an IEE at school district expense if they feel that the school did not assess all of the students educational needs. Letter to Baus

  27. Lesson Learned When initiating an evaluation or re-evaluation the school must consider information provided by the parent . Request and document the parent s input into the scope of the evaluation.

  28. Eligibility Meets One or More of the Disability Categories Adversely Affects Educational Performance In Need of Special Education Specially Designed Instruction

  29. Eligibility Adverse Affect Although the student had a disability, he was found ineligible for special education based on the Team s conclusion that there was no adverse affect on the student s educational performance putting the student in need of special education. The Team properly considered the student s overall academic success and that none of the school s assessments found that the student s behaviors impeded his participation in the general curriculum. D.A. v. Meridian Joint School District No.2

  30. Lesson Learned Adverse affect on educational performance includes both academic and nonacademic factors. The determination of adverse affect should result from consideration of multiple sources of information. A student s overall success in the general curriculum will be an important factor to consider. Not all graded activities are deemed strictly academic.

  31. Eligibility A student who was attending a private school was not eligible for special education as having a specific learning disability. The evidence presented by public school that the public school staff s classroom observations in the private school showed that the student performed well in his classroom and was generally engaged with his class. The student was receiving good grades and received only tier one accommodations which were provided to all students. Hawaii Department of Education (DOE) v. Patrick P.

  32. Lesson Learned The Courts will look at the student s progress in the general curriculum as one important indicator of adverse impact on educational performance. Schools should make every effort to gather data on a private school s performance in classroom as part of the evaluation data used for eligibility determinations.

  33. Eligibility A student with autism was determined to be no longer eligible for IEP services since his disability did not adversely affect his educational performance. Although he had problematic behaviors at home, including self injurious acts, his behavior at school was generally good. The Court rejected the parents broader interpretation that behavior at home should be considered in determining adverse affect on educational performance. Q.W. v. Board of Education of Fayette County

  34. Lesson Learned Make sure the members of the eligibility team understand that adverse affect on educational performance means more than academics or grades. Clarify that the focus of the discussion will pertain to the impact of the disability on the child s performance in the school setting.

  35. FAPE Standard The Supreme Court in the Rowley case established two criteria in determining FAPE: Have the procedures been adequately complied with? and Is the IEP reasonably calculated to enable the child to receive educational benefits?

  36. IEP Specificity The parents were not denied a meaningful opportunity to participate in the development of her IEP simply because the school did not clarify exactly what its offer of 30 minutes per week of social skills training entailed. The IEP was reasonably calculated to address the student s educational needs, in particular, her socialization needs without a one-to-one paraprofessional. Lainey C. v. Hawaii Department of Education

  37. Lesson Learned Although school staff should respond to reasonable requests from the parent regarding the IEP, the school is not legally obligated to get into specific details of the day to day implementation of the IEP. A 1:1 paraprofessional will not always be the appropriate response to a student with social skill deficits. Staff needs to be thoughtful of the words used---helpful v. necessary

  38. Parent Participation FAPE denied when the school held the IEP Team meeting in spite of the fact that the parents informed the district four days ahead of time that they would be unable to attend. A school district can make an IEP Team decision without the parents only if it is unable to obtain their participation which was not the case here. D.B. v. Santa Monica-Malibu Unified School District

  39. Parent Participation The school did not violate parental rights to be meaningful participants by holding two IEP meetings during the summer while the parents were out of the country. The school offered numerous dates to the parents for an IEP meeting and also offered alternative means of participating which were not accepted. The parents were also provided with transcripts of the summer meetings. Dervishi v. Stamford Board of Education

  40. Parent Participation School engaged in numerous attempts to schedule an IEP meeting. An IEP Team meeting was held without the parent in attendance when the parent informed the school she was sick the day of the scheduled meeting. The Court held that although the parent never refused to participate the school was found not to have violated the parent s right to participate since the student s IEP was in urgent need of being updated. A.L. v. Jackson County School Board

  41. Lesson Learned Schedule the annual IEP review sufficiently before the due date to allow for the need to reschedule the meeting due to parental or staff needs. Document all attempts the school has engaged in to find a mutually agreeable time and date for the IEP Team meeting. Caution!!! Hold the meeting without parent participation only if the school is unable to get the parents to attend the IEP Team meeting including alternative means of participating.

  42. IEP Team Membership The student s general education teachers were invited but did not attend the IEP Team meeting. The Court concluded that there was no procedural violation of the IDEA since the Asst. Principal who attended also taught a Spanish class at the school. The Court observed that even if there was a procedural violation it was harmless because it did not deprive [the student] of an educational opportunity or infringe on his parents participatory rights. Z.R. v. Oak Park Unified School District

  43. Lesson Learned Remember the IDEA requires the participation of not less than one regular education teacher of the child if the child is or may be participating in the regular education environment. It is up to the school district to determine what teacher(s) of the student will be in attendance.

  44. Attorney Attendance at IEP Team Meetings The parent has the right to bring another individual, including their attorney, with them to a scheduled IEP Team meeting. Unlike the school, the parent has no legal obligation to inform the school of others who will be attending the IEP meeting with them including their attorney. OSEP did observe that in the spirit of cooperation and working together as partners in the child s education, a parent should provide advance notice to the public agency if he or she intends to bring an attorney to the IEP meeting. Letter to Andel

  45. Lesson Learned Ensure that all participants expected to attend the IEP meeting, including the school s attorney if applicable, are included in the notice of the IEP meeting. Consider including in the notice an invitation for the parent to inform the school in advance if they have plans to bring others with them to the meeting.

  46. Progress Reports The IEPs contained little or no progress reporting or measurement data and where progress was reported. However, there was constant communication between the parents and the student s special education teacher both through face-to-face meetings and a "back-and- forth notebook The gaps in the IEP progress reporting did not inhibit the parents from meaningful participation. Endrew F. v. Douglas County School District

  47. Lesson Learned In order to avoid legal challenges, ensure that the IEP addresses how the student s progress under their IEP goals will be measured. Best to use multiple sources of information instead of relying on a single source. Also, ensure that the IEP addresses how and how often the parents will be notified of their student s progress.

  48. IEP Measurable Goals The parents alleged that the IEP goals were vague and not measurable as required by the IDEA. The Court held any vagueness in the 17 goals was ameliorated by the specificity of the 96 short term objectives. The objectives provided considerable detail as to how the broader goals would be implemented and measured. D.A.B. v. New York City Department of Education

  49. Lesson Learned The IDEA requires that there be measurable goals which can be understood by not only the IEP Team but others who will be responsible for the IEP implementation. As one Court found this means that the substance of the IEP must be intellectually accessible to parents so that they could make an informed decision as to its appropriateness.

  50. IEP Misinformation The parents visited the school that their student would be attending and alleged they were told by the tour guide that the proposed school did not have the requisite staff or services called for in the IEP. The Court concluded that the evidence sufficiently demonstrated that the proposed placement had the ability to fully implement the IEP despite any misinformation provided to the parents. B.P. v. New York City

Related


More Related Content

giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#