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THE NEW IDEIA (the Individuals with Disabilities in Education Improvement Act of 2004) 2005 - PASA Workshops presented by Donna S. Weldon, Esq. and Stinson.

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Presentation on theme: "THE NEW IDEIA (the Individuals with Disabilities in Education Improvement Act of 2004) 2005 - PASA Workshops presented by Donna S. Weldon, Esq. and Stinson."— Presentation transcript:

1 THE NEW IDEIA (the Individuals with Disabilities in Education Improvement Act of 2004) PASA Workshops presented by Donna S. Weldon, Esq. and Stinson W. Stroup, Esq.

2 2 New Mission n Discrimination model n Access, accountability, now achievement n Alignment with NCLB n Research-based methodology

3 3 Pennsylvanias Unique Problems n Chapter 14 incorporates by reference existing federal regulations n Conflict with IDEIA – Not permitted n State exceeds IDEIA requirements -- OK

4 4 Research-Based Methodology – New Battleground nNnNew burden of proof for district nInIEP includes –A–A statement of special education and related services based on peer-reviewed research to the extent practicable, to be provided to the child (20 USC § 1414(d)(1)(A)(i)(1)(iv))

5 5 Interaction with NCLB n LRE-separation occurs only when nature or severity of disability is such that education in regular education classes, with the use of supplementary aids and services, cannot be achieved satisfactorily n LRE in the context of challenging standards and achievement testing and subsets n Alternate assessments – separate standards n What about Gaskin?

6 6 Procedural Safeguards-Evaluation nInInitial placement refused by parents nNnNo complaint may be filed by district nRnRefusal of consent to services – defense for district and no need to convene IEP team or write IEP n6n60 calendar day timeframe for evaluation from parental consent nDnDistinguish screenings to determine instructional strategies for curriculum implementation

7 7 Procedural Safeguards-Evaluation contd n Maximum number 1x per year unless agreed to; minimum 1x every three years n Response to Intervention v. Discrepancy Model

8 8 Procedural Safeguards-Evaluation contd n Graduation – no longer eligible n No evaluation n Summary of performance –Academic achievement –Functional performance –Recommendation: postsecondary goals

9 9 Procedural Safeguards-IEP n Elimination of benchmarks or short- term objectives Exception: students taking alternative assessments n How progress will be measured and when periodic reports

10 10 IEP n Educational performance now academic achievement and functional performance n Measurable goals now academic & functional n Services based on peer-reviewed research n Accommodations to measure achievement on state & district-wide assessments n Why alternative assessment n Guidelines for accommodations & alternative assessments

11 11 First IEP In Effect When Child Is Age 16 n Measurable postsecondary goals n Age-appropriate transition assessments (training, education, employment or independent living skills) n Transition services (including courses of study) n One year before majority, child informed of rights

12 12 Procedural Safeguards-New Flexibility n Team member attendance/excusal –Parent agrees in writing –Not being discussed or modified –Members written input before meeting n IEP amendment by agreement without meeting/redraft n Pilot program n Conference calls as alternative to meetings n communication

13 13 Procedural Safeguard Notices (How Often and New Contents) n Only 1x per year n First occurrence of filing complaint n Parent requests n Notice of disciplinary change of placement

14 14 Complaint New Process to Reduce Litigation n Two-year statute of limitations from date knew or should have known unless mitigating circumstances n Complaint must state following information: –Nature of problem relating to proposed initiation or change –Facts relating to problem –Proposed resolution n SEA to develop model complaint form

15 15 Complaint New Process to Reduce Litigation, contd n Right to object to complaint as insufficient within 15 days n Within 5 days of receiving objection to complaint, hearing officer renders decision n District responds with notice within 10 days n Non-complaining party within 10 days sends answer addressing problems

16 16 Complaint New Process to Reduce Litigation, contd n Amended complaint notice if agreed to or permitted by Hearing Officer n May raise no issue not in complaint

17 17 District Written Prior Notice to Parent Or Response When Propose or Refuse to Initiate or Change n Description of action n Explanation of why propose or refuse n Description of evaluation, assessment, record to support decision n Procedural safeguards notice n Sources for parental assistance n Description of other options considered and why rejected n Factors relevant to proposal or refusal

18 18 Resolution Session (NEW) Kinder, Gentler, Due Process n Required meeting n Within 15 days of receipt of parents complaint n Discussion of complaint to try to resolve complaint n Representative of district with decision- making authority n No attorney unless parents have attorney

19 19 Resolution Session (NEW), contd n Timelines for due process hearing commence within 30 days of receipt of complaint n Settlement agreement-either party may void within 3 business days

20 20 Discipline-Greater Discretion for Schools n New Manifestation Determination n New 45 School Days for IAES n New Unilateral Placement for Serious Bodily Injury n Limitations on Child Not Yet Identified n Stay-Put for all disciplinary placements

21 21 Manifestation Determination Review n Conducted by relevant members of IEP team n Relevant members determined by parent and LEA n To determine if misconduct –Was caused by, or had a direct and substantial relationship to disability, or –Was the direct result of failure to implement IEP

22 22 IAES/Special Circumstances n 45 school days replaces calendar days n Placement without regard to manifestation determination n New special circumstances of has inflicted serious bodily injury

23 23 IAES/Special Circumstances, contd n Serious Bodily Injury: –Substantial risk of death, –Extreme physical pain, –Protracted and obvious disfigurement, or –Protracted loss or impairment of the function of a bodily member, organ, or mental faculty

24 24 Requirements of Deemed to Know n Parent in writing to supervisor, administrator or teacher of need for special education or requested evaluation n Teacher or provider expressed specific concern about pattern of behavior directly to director of special education or appropriate supervisor

25 25 No Knowledge if: n Parent has not allowed evaluation n Refused services n Evaluation conducted and no disability found

26 26 Expanded Stay-Put n Parents appeal disciplinary placement or manifestation determination n During pendency of proceedings, child remains in the IAES n Does not need to be special circumstances

27 27 Highly Qualified (HQ) -- In General ( section 602. Definitions) n Same meaning as NCLB n But also includes full special education certification (except charter school teachers may meet state charter school law certification requirements). n No emergency, temporary, or provisional waiver

28 28 HQ: Special Education Teachers teaching to alternative standards n Exclusively to students assessed against alternative achievement standards (1%) –Meet NCLB new or not new criteria; or –Elementary teacher criteria and If content is above elementary level, demonstrate subject matter knowledge as determined by State

29 29 HQ: Special Education Teachers Teaching multiple subjects n Meet the requirements of NCLB for any elementary, middle or secondary school teacher who is new or not new to the profession n If not new- demonstrate competence in all core academic subjects in same manner as required for a elementary, middle or secondary teacher (may use HOUSSE) n If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.

30 30 HQ : How this will play out in Pennsylvania, we think, n Current teachers: n 1) Certified special education teachers are highly qualified as assigned to provide support n 2) Certified special education teachers teaching content at any level will have to demonstrate content proficiency in some way

31 31 HQ: currently teaching to elementary PSSA n Hold a valid Instructional I or Instructional II certificate n Have taught elementary content n May use Bridge II to become highly qualified for elementary education –Transcript review or –Praxis test of Fundamental Subjects content knowledge (met by all certified after 1987)

32 32 HQ: Currently teaching to alternate assessment n Meet same requirements as teachers of elementary content.

33 33 HQ: Currently teaching content to middle-secondary PSSA n Hold a valid Instructional I or Instructional II certificate n Hold a content area certificate or enter Bridge I in order to earn a content area certificate. (Can earn content area certificate by passing relevant Praxis). n Enter Bridge II for additional endorsements to become highly qualified in additional subjects

34 34 HQ: Bridge I (see n Bridge requirements (Pas HOUSSE) –Full time teaching –Instructional I or II issued before July 1, 2004 –Currently assigned to core content for which not Highly Qualified –Earn 12 points for experience to get on Bridge –Earn 18 additional points within next 3 years n Can avoid Bridge I by passing relevant content area Praxis to earn content certificate in second area

35 35 HQ Bridge II (see n Getting on Bridge II –Teacher of multiple subjects in self-contained classroom at some time since school year –Has a content area certificate (can be obtained through traditional means, by passing relevant Praxis, or by Bridge I). –Meets experience requirements to get on Bridge I –Demonstrates satisfactory performance evaluations using PDE approved form

36 36 HQ: Bridge II (cont) n Getting off Bridge II with designations –Teacher must have earned at least three college credits in content area and –Pass praxis test of Fundamental Subjects: Content Knowledge or Elementary Education Content Knowledge or –if pre-1987 certificate holder, document successful teaching of content for at least one full year.

37 37 HQ: Certification v. Designation n Bridge I results in a certificate n Bridge II results in a designation of highly qualified n Holder of certificate can teach subject in any setting n Holder of designation is highly qualified to teach subject only within scope of his or her certificate

38 38 HQ: legal effect n Holder of certificate can be assigned to teach within the scope of certificate without penalty. n If not highly qualified, district must notify parents of students assigned to that teacher that he or she is not highly qualified. n No right of action created by failure of employee to be highly qualified

39 39 HQ:Pipeline still a problem n If new and highly qualified in math, language arts or science may demonstrate competence in other areas in same way as required for elementary, middle or secondary teacher (may use HOUSSE) within 2 years.

40 40 Early Intervening Services n Unidentified students who need additional academic and behavioral support n Professional development to enable –Scientifically-based academic instruction –Behavioral interventions, including scientifically- based literacy instruction n Educational & behavioral evaluation, services supports, including scientifically-based literacy instruction

41 41 Children Who Transfer School Districts Within Same Academic Year Within PA n FAPE, comparable services to previous IEP n Consultation with parents n Until adopts previous IEP or adopts new IEP n Move promptly to obtain records Outside PA n Same, except conduct an evaluation

42 42 Equitable Participation IU subgrantee responsibilities n Written affirmation of input from private schools/parents on child find, determination of funding, participation in services n How, where, and by whom services will be provided n Explanation of reasons for refusing services n Private school may file complaint with SEA n Appeal to OSEP

43 43 Odds and Ends nPnProhibition on mandatory medication nPart C IEP transition – invite service representative nNnNew restrictions on hearing officers use of procedural violations nGnGifted special education nHnHostile parent

44 44 Compensatory Education n Knows or Should Have Known IEP Failed n Money to Buy Developmental, Remedial or Enriching Instruction n Compare Tuition Reimbursement

45 45 Compensatory Education, contd n Peer-reviewed research basis for methodology n Measurement of progress/academic achievement – impossible to assess programs n FBA/BIP n Failure to implement n Identified Needs Not Addressed in Goals, Benchmarks

46 46 Compensatory Education, contd n No Instruction Only Accommodation n Failure to Implement SDIs, Consultation, Related Services n Failure to Identify or Evaluate n Parent Request Ignored

47 47 Compensatory Education, contd Calculation of Damages nNnNumber of Hours Missed Service nNnNumber of School Days nSnSalaries and Benefits (Actual/Median) nPnPoison the Entire Day?

48 48 Court Award of Attorneys Fees n Against parents attorney if- –Frivolous, Unreasonable, or Without Foundation (F, U, WF) Complaint –Continues to litigate after Becomes clear F, U, WF n Against attorney or parent if- –Complaint was presented to harass, cause unnecessary delay, or needlessly increase cost of litigation

49 49 Due Process Complaint Notice Service to Other Party & ODR Identifying Information; and Description of Problem re: Proposed Change or Initiation Proposed Resolution Within 15 days of receiptWithin 10 days of receipt Objection to Sufficiency Service to other party & H.O. Failure to meet notice reqs. Districts Response In lieu of prior written notice why district proposed or refused action other options considered why objection rejected description of evaluation, assessment record used as basis description of relevant factors Does not preclude objection Within 5 days of receipt Determination of Sufficiency of D.P. Complaint Notice Amended Complaint Notice Other Party Consents & Opportunity for Mtg H.O. Permits More Than 5 Days Before Hrg. Timeline Recommences When File Amended Notice Non-Complaining Party Response Address Issues Raised in Complaint

50 50 Due Process Complaint Notice Service to Other Party & ODR Identifying Information; and Description of Problem re: Proposed Change or Initiation Proposed Resolution Within 15 days of receiptWithin 30 days of receipt Resolution Session LEA No solicitor unless parent has attorney Discussion by parent of complaint & facts District opportunity to resolve District & parent must waive in writing or agree to mediation to avoid Written settlement agreement Due Process Hearing Limited to issues in notice No FAPE based on procedural flaws only if defects: impeded childs right to FAPE impeded parents right to participate in decisions caused deprivation of benefit Within 3 Business Days of Agreement Execution Either Side May Void

51 51 Donna S. Weldon, Esq. Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box Harrisburg, PA 17108

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