Presentation on theme: "Patricia R. Andrews Andrews & Price"— Presentation transcript:
1 Patricia R. Andrews Andrews & Price Special EducationPatricia R. AndrewsAndrews & Price
2 History1972-PARC Consent Decree Challenged the education of mentally retarded students in PAAgreement to provide educational services to all childrenEstablished 1st due process hearings to challenge programHearings very simplyDistricts usually prevailed
3 History 1975 – Public Law 94-142 Modeled after the PA scheme No major changes for PAHearings more complexNew issuesAdvocatesSome lawyer involvement
4 History 1986 – Smith v. Robinson U.S. Supreme Court Case Held no attorney’s fees available for prevailing parties under P.L
5 History 1988 – Protection for All Handicapped Children Act amended to provide for attorney’s fees for prevailing partyOnly for parentsNo meaningful substantive changesParent lawyers now come on sceneMore complex and longer hearings
6 Major cases Amy Rowley v. Hendrick Hudson S.D. Deaf student requesting an interpreter as part of educational programHolding:Substantive: children are only entitled to an appropriate, not best, programProcedures: cannot have substantively appropriate program if procedures not followed
7 Major casesObertiDown Syndrome child requesting inclusion in the regular education environmentIDEA adopts the Court’s decisionHolding: Children are entitled to be educated in the least restrictive environmentChildren educated with nondisabled peers to maximum extent appropriateMust provide supplementary aides and services to allow inclusion to be satisfactorily achieved
8 Major Cases Gaskins Consent Decree In the process of being finalized Emphasizes requirement of IEP Team to appropriately consider LRE before making placement determinationsMonitored by PDE
9 Major cases W.B. v. Matula Third Circuit Holding: school districts can be liable for monetary damages as well as compensatory damagesEvery other circuit has held the opposite
10 History 1997-IDEA 1st meaningful substantive changes in 22 years Reauthorization finalized in 2004Effective July 1, 2005
11 IDEA Incorporates the holdings of PARC, Rowley, Oberti School must identify all children with disabilities and provide FAPEFAPE is an individualized education program designed to meet the needs of the child that is reasonably calculated to provide meaningful educational benefitProcedures must be followedEducation must be in the least restrictive environmentParents have due process rights
12 IEP Team The IEP Team is the decision maker under IDEA Responsible for developing, reviewing and revising an IEPThere are no individual decisions
13 Required Members of the IEP Team IEP Team includesParentsAt least 1 regular education teacher of the childAt least 1 special education teacher of the childLEAQualified to provide or supervise the provision of SDI; is knowledgeable about the general curriculum; is knowledgeable about the availability of resources of the public agency
14 IEP TEAM ATTENDANCEAn IEP team member shall not be required to attend all or part of the IEP meeting if the parent in writing and the LEA agree that the team member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed at the meetingDOCUMENT!
15 IEP TEAM ATTENDANCEAn IEP team member may be excused from attending all or part of the IEP meeting when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the parent in writing and the LEA consent to the excusal and the member submits, in writing to the parent and Team input into the development of the IEP prior to the meeting
16 IEP TEAM ATTENDANCE Is this really helpful? This provision requires written documentation – do not forget this step – cannot just leave!Does this take more time than just attending the meeting itself?RECOMMENDATION: As a general rule, the required members of the Team should be present throughout the meeting – this provision should be the exception to the rule.
17 AMENDING THE IEP Changes after the annual IEP meeting: Parent and LEA may agree not to convene an IEP meetingInstead may develop a written document to amend or modify the current IEPCan still hold a full team meetingParent shall be provided with the revised document
18 AMENDING THE IEP RECOMMENDATION: Too many pitfalls: Must document the agreement – takes timeAre all teachers notified of changes?Are parents truly aware that a change is being made to the IEP?GENERAL RULE: Hold the IEP Team meeting! This should be the exception to the rule.
19 AMENDING THE IEPChanges can be made by amending the IEP rather than by redrafting the entire document.Document this clearly to avoid confusionProvide parent with a copy of the changes
20 IMPLEMENTATIONOnce IEP is agreed to, must be appropriately implementedIEP is a legally binding agreementIEP Team agreed that the items in the IEP are the required special education services to provide child with FAPEEntire IEP must be followedCannot chose “portions” of IEP to implementAs the LEA – must monitor implementation
21 “Why should I care?”Extreme-Doe v. Withers-Teacher held personally liable for money damage for failing to implement the IEP. (School insurance did not cover him).This teacher actively refused to implement the specially designed instruction even after administration cited him.Court reasoned that this was sufficiently egregious conduct to defeat claims of immunity.Jury returned verdict against high school teacher for $5, compensatory and $10, punitive.
22 Why Should I Care? Discipline - 24 P.S. § 11-1122 Incompetency Unsatisfactory RatingPersistent negligence in the performance of dutiesWillful neglect of dutiesFailure to follow District Policy or Administrative directives
23 Understanding LRE“Children placed in special education are general education children first”President’s Commission on Excellence in Special Education
24 Understanding Least Restrictive Environment Inclusion is not a legal term-LRE is the law.Legal mandate that disabled children should be educated, to the maximum extent appropriate, with their nondisabled peers.Presumption is that children with disabilities are to be educated in regular classes.
25 LREShift in emphasis!Prior to 1997 IEP explained the extent a child would be able to participate in reg. Ed. now an IEP must explain the extent the child will not be placed in regular ed. and why.
26 LREDetermination of educational placement made by the IEP Team – including the parents!At least annuallyTeam must assure that child is removed from regular education environment only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorilyIs the child making progress?
27 Prior Written Notice A NOREP must be issued to the parents if The District proposes to initiate or change the educational placement of a child with a disabilityParents must agree, on the NOREP before a change of placement can occurVerbal consent is not sufficientCANNOT CHANGE UNILATERALLY!
28 Why Should I Care? Little Mistakes Lead to Big Problems Due Process Time ConsumingAdversarialDamagesCompensatory educationTuition reimbursementMoneyDisciplineIn the job and personally
29 Why Should I Care? Avoid problems by following IDEA’s procedures Remember: IEP Team makes all final decisionsRemember: Parents part of TeamRemember: Obtain parental consent through a NOREP for every change – no matter how smallRemember: IEP must be fully implemented