Presentation on theme: "Common Legal Mistakes Districts Make"— Presentation transcript:
1 Common Legal Mistakes Districts Make Trish AndrewsAndrews & Price
2 Procedural/Substantive violations Rowley v. Hendrick Hudson S.D.U.S. Supreme courtProcedures just as important as substanceProcedural violations can result in a denial of FAPE
3 Procedural/substantive violations IDEA 2004Hearing Officers must find that the child was denied FAPEDid not make educational progressDecision cannot be made on procedural violations aloneDoes Not mean that procedures are no longer important
4 Procedures - Timelines Parent does not return signed Permission to EvaluateDon’t just ignoreProve that we made an effort to get backDo we believe child needs evaluated?May need to go to due processOtherwise, may have child find violation
5 Procedures - Timelines Parent will not agree on an IEP dateIEP must be completed within 30 calendar days of ER or at least annuallyDon’t schedule date for IEP on 30th dayHold meeting without parent to maintain timelineProvide with copy of IEPOffer to hold follow up meeting at a later date
6 Procedure - Timelines Parent does not show up at IEP If you have time, rescheduleIf not, call parentsHold meeting without themJust have to show we made attempts to have parents presentSend IEPOffer to hold follow up meeting at a later date
7 Procedures - Timelines Parents attend IEP meeting, but refuse to agree to anythingDon’t let parent scuttle timelinesTake control of meeting
8 Procedures - Timelines Parents are equal participants at IEP meetingsBut are not the supermajorityShould be open discussion regarding child’s programParents should make joint and informed decisions regarding child’s program
9 Procedures - Timelines Team should try to work toward consensus, butIt is the district’s ultimate responsibility to ensure that the IEP includes services child needs to receive FAPEIf Team cannot reach consensus with parentMake offer of FAPEIssue NOREPParents have right to institute dispute resolution
10 Procedure - TImelines What if school team members do not agree? District’s responsibility to ensure FAPEBut must be able to defend program at due processNeed witnessesIf members of Team disagree, may be hard to prove that District’s offer is FAPE
11 Procedures - Timelines “This IEP meeting should only take 30 minutes”Make sure to schedule sufficient time for IEP meetingsDon’t have to let the meeting go on for hours, butTake 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 meetingMembers cannot simply leave to go back to class
13 Procedures – IEP Members Required members remain:ParentLEASpecial education teacherRegular Education TeacherGeneral Rule:Must be present at ENTIRE IEP meeting!
14 Procedures – IEP Members IDEA 2004Does allow some members to be excusedRequires written parental consentProposed Regulations:LEA is not permitted to leave
15 Procedures – IEP Members When can a member be excusedthe team member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussedwhen the meeting involves a modification to or discussion of the member’s 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 meetingPlacement decision should be made based upon the goals and SDI in child’s IEPTherefore, develop the IEP, then ask:Where can this IEP be implemented
17 Predetermined Placements Placement decisions are particularly important in light of GaskinsShould be a thorough discussion and decision at meeting
18 Placement Decisions Placement based upon child’s needs Cannot be based upon availability of serviceCannot be based upon cost
19 Refusing a parent request NOREPs are issued when district makes a recommendationDistricts do a good job of issuing for changesAlso issued when district refuses a parental requestMany districts overlook issuing for refusal
20 Inadequate IEPs Remember what IEP must do: What is FAPE Must be designed to provide child with FAPEWhat is FAPEAn educational program that allows a child to receive meaningful educational benefitWhat is meaningful educational benefit?PROGRESS!
21 Inadequate IEPS PELs must show progress Set baselines When developing next year’s IEP, review baseline established in PELsDocument in next year’s IEP how the child has improved from baselineDiscuss skills that the child has learnedCompare those skills to baseline
22 Showing progress Mistake: Comparing apples to oranges Again: progress is the cornerstone of FAPEHelpful to show more than just subjective opinion of progress
23 Showing progressOne way of showing progress is through standardized assessmentsOften an assessment is given to determine baselineThis is good!But, then either no assessment or a different assessment is used at the end of the yearNothing to compareUse 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 annuallyMore frequently if the child is not making appropriate progressHighlights importance of progress monitoring
25 Failing to Hold IEP Meeting If no or little progress is shownSchedule an IEP meeting during yearReview and revise IEPMust address areas in which child is failing to progress
26 Methodology Remember that it is the District’s preference Parents may be able to chose methodology if child fails to appropriately progressCarefully monitor progressBe aware of child that stays at 3rd grade reading level for 3 years
27 Changing Placement without changing IEP LRE: child is expected to be educated with nondisabled peersCannot change placement if child is making progressIf child is not making progressMust be able to show that the district has made every effort to educate child in LRESeveral IEP meetingsNumerous revisions to IEP
28 Request for IEEMistake: Failure to request due process if parents request IEEParents have right to ask for IEE at public expenseIf that occurs, district has 2 choices:Agree to payRequest due processProvide our evaluation is appropriate
29 Restraints District may use passive restraint if: Child is in danger of harming himself or othersUse of restraints shall cause a meeting of the IEP TeamReview BIP to prevent behavior from occurring.
30 Manifestation Determinations Mistake: predetermining outcomeManifestation determinations involve parent and LEA and relevant members of IEP TeamAll parties are to have inputDecisions to be made after input is provided
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