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Common Legal Mistakes Districts Make Trish Andrews Andrews & Price 412-243-9700.

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Presentation on theme: "Common Legal Mistakes Districts Make Trish Andrews Andrews & Price 412-243-9700."— Presentation transcript:

1 Common Legal Mistakes Districts Make Trish Andrews Andrews & Price

2 Procedural/Substantive violations Rowley v. Hendrick Hudson S.D. U.S. Supreme court Procedures just as important as substance Procedural violations can result in a denial of FAPE

3 Procedural/substantive violations IDEA 2004 Hearing Officers must find that the child was denied FAPE Did not make educational progress Decision cannot be made on procedural violations alone Does Not mean that procedures are no longer important

4 Procedures - Timelines Parent does not return signed Permission to Evaluate Dont just ignore Prove that we made an effort to get back Do we believe child needs evaluated? May need to go to due process Otherwise, may have child find violation

5 Procedures - Timelines Parent will not agree on an IEP date IEP must be completed within 30 calendar days of ER or at least annually Dont schedule date for IEP on 30 th day Hold meeting without parent to maintain timeline Provide with copy of IEP Offer to hold follow up meeting at a later date

6 Procedure - Timelines Parent does not show up at IEP If you have time, reschedule If not, call parents Hold meeting without them Just have to show we made attempts to have parents present Send IEP Offer to hold follow up meeting at a later date

7 Procedures - Timelines Parents attend IEP meeting, but refuse to agree to anything Dont let parent scuttle timelines Take control of meeting

8 Procedures - Timelines Parents are equal participants at IEP meetings But are not the supermajority Should be open discussion regarding childs program Parents should make joint and informed decisions regarding childs program

9 Procedures - Timelines Team should try to work toward consensus, but It is the districts ultimate responsibility to ensure that the IEP includes services child needs to receive FAPE If Team cannot reach consensus with parent Make offer of FAPE Issue NOREP Parents have right to institute dispute resolution

10 Procedure - TImelines What if school team members do not agree? Districts responsibility to ensure FAPE But must be able to defend program at due process Need witnesses If members of Team disagree, may be hard to prove that Districts offer is FAPE

11 Procedures - Timelines This IEP meeting should only take 30 minutes Make sure to schedule sufficient time for IEP meetings Dont have to let the meeting go on for hours, but Take into consideration that parent may have an issue to discuss

12 Procedures This leads to next issue: May need to allow more than 1 period for an IEP Team meeting Members cannot simply leave to go back to class

13 Procedures – IEP Members Required members remain: Parent LEA Special education teacher Regular Education Teacher General Rule: Must be present at ENTIRE IEP meeting!

14 Procedures – IEP Members IDEA 2004 Does allow some members to be excused Requires written parental consent Proposed Regulations: LEA is not permitted to leave

15 Procedures – IEP Members When can a member be excused the team members attendance is not necessary because the members area of the curriculum or related services is not being modified or discussed when the meeting involves a modification to or discussion of the members area of the curriculum or related services if the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting

16 Predetermined Placements District cannot finalize placement decisions before the IEP meeting Placement decision should be made based upon the goals and SDI in childs IEP Therefore, develop the IEP, then ask: Where can this IEP be implemented

17 Predetermined Placements Placement decisions are particularly important in light of Gaskins Should be a thorough discussion and decision at meeting

18 Placement Decisions Placement based upon childs needs Cannot be based upon availability of service Cannot be based upon cost

19 Refusing a parent request NOREPs are issued when district makes a recommendation Districts do a good job of issuing for changes Also issued when district refuses a parental request Many districts overlook issuing for refusal

20 Inadequate IEPs Remember what IEP must do: Must be designed to provide child with FAPE What is FAPE An educational program that allows a child to receive meaningful educational benefit What is meaningful educational benefit? PROGRESS!

21 Inadequate IEPS PELs must show progress Set baselines When developing next years IEP, review baseline established in PELs Document in next years IEP how the child has improved from baseline Discuss skills that the child has learned Compare those skills to baseline

22 Showing progress Mistake: Comparing apples to oranges Again: progress is the cornerstone of FAPE Helpful to show more than just subjective opinion of progress

23 Showing progress One way of showing progress is through standardized assessments Often an assessment is given to determine baseline This is good! But, then either no assessment or a different assessment is used at the end of the year Nothing to compare Use consistent assessments to show progress

24 Failing to hold IEP meeting What if there is no progress? IDEA requires IEP meetings to be held at least annually More frequently if the child is not making appropriate progress Highlights importance of progress monitoring

25 Failing to Hold IEP Meeting If no or little progress is shown Schedule an IEP meeting during year Review and revise IEP Must address areas in which child is failing to progress

26 Methodology Remember that it is the Districts preference Parents may be able to chose methodology if child fails to appropriately progress Carefully monitor progress Be aware of child that stays at 3 rd grade reading level for 3 years

27 Changing Placement without changing IEP LRE: child is expected to be educated with nondisabled peers Cannot change placement if child is making progress If child is not making progress Must be able to show that the district has made every effort to educate child in LRE Several IEP meetings Numerous revisions to IEP

28 Request for IEE Mistake: Failure to request due process if parents request IEE Parents have right to ask for IEE at public expense If that occurs, district has 2 choices: Agree to pay Request due process –Provide our evaluation is appropriate

29 Restraints District may use passive restraint if: Child is in danger of harming himself or others Use of restraints shall cause a meeting of the IEP Team Review BIP to prevent behavior from occurring.

30 Manifestation Determinations Mistake: predetermining outcome Manifestation determinations involve parent and LEA and relevant members of IEP Team All parties are to have input Decisions to be made after input is provided

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