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Special Education and the Law EDLD 611. Fundamentals of Federal Disability Law Three primary laws that School Leaders with which School Leaders should.

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Presentation on theme: "Special Education and the Law EDLD 611. Fundamentals of Federal Disability Law Three primary laws that School Leaders with which School Leaders should."— Presentation transcript:

1 Special Education and the Law EDLD 611

2 Fundamentals of Federal Disability Law Three primary laws that School Leaders with which School Leaders should be familiar: –§ 504 of the Rehabilitation Act of 1973 –Individuals with Disabilities Education Act (I.D.E.A.) –Americans with Disabilities Act All three laws have impact in schools with students, teachers and parents

3 School Leaders must keep in mind that the most litigated area in public schools today is in regards to the rights and freedoms of special need students

4 § 504 of the Rehabilitation Act of 1973 Oldest and probably the easiest of the three laws to with which to comply. –§ 504 students are students that cannot perform on of their “major life functions” »Walking, talking, hearing, seeing, breathing, and learning The disability may be permanent or it may be temporary –Accommodations must be made by the school to allow these students or teachers to be able to perform their jobs –Parents also need to be accommodated under § 504 to allow them to participate in all of the activities afford other parents who are not disabled

5 ADA Enacted by Congress in 1990 –The law is divided into five titles: Title I – Prohibits employment discrimination Title II – applies to all subdivisions of state and local government, regardless of whether they receive federal financial assistance. Students in public schools are protected under this title. Title III – Prohibits discrimination by businesses that serve the public. Title III’s provisions also apply to nonsectarian private schools, although private schools are not held to the same programmatic accessibility standards as are public schools. Private schools need only accommodate those children with disabilities that can be served with minor adjustments to the academic program.

6 Title IV – Applies to telecommunications services such as telephone and television companies Title V – Contains several miscellaneous, but important, provisions including a statement that ADA should not be read to required lesser standards than those of § 504; that a state’s immunity from suit under the Eleventh Amendment is abrogated by the ADA; that ADA’s provisions apply to congress and all agencies of the legislative branch; that the term “individual with disability” does not include active drug users or transvestites; and that homosexuality and bisexuality are not “impairments” under the ADA and that various other “conditions” are not included under the term disability.

7 For public schools additional ADA requirements often relate to construction and renovation requirements associated with physical accessibility.

8 –I.D.E.A. First enacted in 1975 Changed to IDEA in 1990 with the advent of § 504 IDEA is a funding statute rather than a Civil Rights statute Designed to provide funds for schools to educate disabled children

9 –IDEA is a law that exists to help disabled students receive a “free appropriate public education” (FAPE) –FAPE does not require that a child’s potential be maximized but rather that the IEP be “reasonably calculated to enable the child to receive educational benefits” Bd. of Educ. v. Rowley, No , SUPREME COURT OF THE UNITED STATES, 458 U.S. 176; 102 S. Ct. 3034; 73 L. Ed. 2d 690; 1982 U.S. LEXIS 10; 50 U.S.L.W. 4925, March 23, 1982, Argued, June 28, 1982, Decided ☼Bd. of Educ. v. Rowley☼

10 Parents, teachers, students and a representative for the school (LEA) compose the members of the IEP team This team determines the appropriate components of the IEP to allow the student to receive FAPE in the most “least restrictive environment” (LRE)

11 Disabilities covered on IDEA are: –Mental retardation hearing impairments (including deafness) –Speech or language impairments –Visual impairments (including blindness) –Serious emotional disturbance –Orthopedic impairments –Autism –Traumatic brain injury –Other health impairments –Specific learning disabilities

12 It should be noted that having a disability does not necessarily qualify the student for services under IDEA. It must be proven that the students disability adversely affects his/her ability to achieve academic success IEP’s must contain long and short term “measurable goals” (S.M.A.R.T.) that when achieved with provide the student with a FAPE Placement of the child is also a primary component of the IEP. The law states that the student must be educated in the LRE. Sometimes this will require student to be served outside of the classroom, but there should always be a preference for serving the IEP students within the regular educational environment

13 –When there are disagreements about the services being provided to a handicapped child either the parent or the school may request a “due process” hearing Hearing is presided over by an impartial hearing officer provided by the state. The hearing officer makes “findings of fact” and then applies the law to the facts of the situation. Parents or the school may challenge any decision relative to the process such as the recommended evaluation, eligibility, appropriateness and placement. If parents are successful in court they may be entitled to financial relief such as recovery of attorney’s fees, reimbursement of costs, and compensatory education –Miener v. Missouri, No , UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 800 F.2d 749; 1986 U.S. App. LEXIS 29385, April 17, 1986, Submitted, September 4, 1986, FiledMiener v. Missouri

14 IDEA is reauthorized by the federal government about ever 5 years. Many times it takes states many years to meet the requirements of reauthorization.

15 Fundamentals of Federal Disability Law Recommendations for Practice –Develop a full understanding of federal disability law and how it applies to schools –By close attention to state laws that heighten the standards established by federal laws –Know local policies and be sure they do not contradict State and Federal law –Determine ways to inform staff about the importance of Federal Disability Laws –Provide staff development for employees dealing with State and Federal disability laws –Develop a good report with disability advocacy groups –Stay current with the ever changing laws

16 Discrimination under Section 504 of the Rehabilitation Act …no otherwise qualified individual with a disability shall, solely by reason of his/her disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance”

17 –Cannot perform one or more major life functions –Not all people qualify for §504 Depression – it can be medicated Poor eyesight – can be corrected with glasses –Every student with an IEP is protected under § 504, however, not every § 504 student qualifies under IDEA

18 –Students Requires reasonable accommodations that will allow a student with disabilities the same access to the benefits of a public education given to all students –J.D. ex rel. J.D. v. Pawlet Sch. Dist., Docket No , UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 224 F.3d 60; 2000 U.S. App. LEXIS 20000, June 30, 2000, Argued, August 15, 2000, DecidedJ.D. ex rel. J.D. v. Pawlet Sch. Dist.

19 –School Districts cannot exclude students from activities simply because the student has a disability, however students that display disruptive or dangerous behaviors may be moved to a more restrictive environment. Doe v. Dolton Elementary School Dist., No. 87 C 8713, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, 694 F. Supp. 440; 1988 U.S. Dist. LEXIS 7083, June 23, 1988, DecidedDoe v. Dolton Elementary School Dist. S-1 v. Turlington, No , UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT. UNIT B, 635 F.2d 342; 1981 U.S. App. LEXIS 20695, January 26, 1981S-1 v. Turlington

20 –Schools may have to revise their physical plants to accommodate § 504 students. Wheelchair ramps Removal of architectural barriers Water fountains, door openings, etc. –Schools can move students to an “accessible” facility –Schools must make sure that the facility is equal to those of non-handicapped students

21 –Schools are required to provide student with basic health accommodations; Catheterization Administering of medication Help with body functions and toilet access –In most cases students cannot be excluded from participating in extra curriculum activities because of their disability. The exception would be if the students have an increased risk of injury or could put others at risk due to his/her disability

22 However… Schools are not required to provide accommodations that go beyond what would be considered to be reasonable. Accommodations that are excessively expensive, expose the school's staff to excessive risk, or that require a school to substantially modify the mission or purpose of a program are not mandated. 27 In this regard, school boards are not necessarily required to make alterations to or provide accommodations in the student's home school.

23 School districts may enroll a student with disabilities in another school that is accessible or that has the appropriate accommodations available. In the interests of economy, school boards may centralize programs rather than offer duplicative programs in each of its schools." However, school boards must provide students with disabilities with facilities that are comparable to those provided to students who are not disabled."

24 Parents –Schools do need to make accommodations for parents Sign language interpreters Access to parent teacher conferences –Schools do not have to make accommodations for activities in which the parents do not have to be there School plays Athletic events

25 Employees – School districts may not discriminate in the employment of a disabled person, even that person is otherwise qualified to perform the position in question. The school must provide reasonable accommodations to allow the employee to perform the job in question

26 –Discrimination Claims An employee must show that he/she was treated differently in an employment action due to his/her disability Employees cannot claim discrimination if they do not have the skills to perform the job even after accommodations are made Discrimination cannot be claimed when the disability is not covered under § 504 Schools districts may discipline an employee even if they do have a disability

27 –Otherwise Qualified Individual with a Disability A person is otherwise qualified if they can perform all essential requirements of a position in question in spite of the disability On the reverse side, if an individual cannot perform essential functions of a position, even with reasonable accommodations, the individual is not otherwise qualified Attendance at work is a requirement of the job Interaction with students is a requirement of the job

28 Alcoholism is protected under § 504, however, showing up to work drunk is not An employee must be able to perform the job in a safe manner; –Bus driver with controlled diabetes is okay, while uncontrolled is not –Bus driver that has a heart problem under a doctors care, may be okay for the position (think carefully about these situations) –Careful screening by a physician is the very least that you would expect. You may also what to designate who the physician is. (In these cases you must pay for the visit) Criminal conduct can undermine the ability to work as a teacher. (even though, like alcoholism, drug addition can be covered under § 504)

29 –Reasonable Accommodations What is reasonable and what is not a reasonable accommodation have let to many law suits pertaining to § 504 Generally minor accommodations from the employer are expected

30 Only when undue financial or administrative burden is established may accommodations be denied –Byrne v. Board of Educ., School Dist., Case No. 89-C- 163, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN, 741 F. Supp. 167; 1990 U.S. Dist. LEXIS 8195; 53 Fair Empl. Prac. Cas. (BNA) 555; 54 Empl. Prac. Dec. (CCH) P40,275, June 27, 1990 Decided, June 27, 1990, FiledByrne v. Board of Educ., School Dist. Teachers can be reassigned to non-teaching positions in response to accommodations. However, new creations need not be created to provide the accommodation

31 –State Immunity under §504 Immunity for states varies depending on the courts. Many courts claim that the state has no rights to immunity because the accept federal funds

32 –Damages Plaintiffs may be allowed damages if they can prove that they were blatantly discriminated against under § 504 Generally, school boards are not held liable as long as they can prove that they made a good faith effort to address the student’s or employee’s disability School Principals can be held personally liable if it can be proved that they acted in “bad faith” or made decisions concerning the student/employ that showed “gross misjudgment”

33 Discrimination under Section 504 of the Rehabilitation Act Recommendations for Practice Students with disabilities may not be excluded from public schools or denied services simply because they are disabled Students with disabilities may not be subjected to differential treatment because of their disabilities or because they receive accommodations for their disabilities If a student does not qualify for IDEA, be sure to evaluate with the criteria of § 504

34 Evaluate each circumstance individually when deciding about waving participation in activities due to disabilities Request medical clearance before allowing a student with disabilities to participate in sports if there is a reason to believe the student might be injured Accommodations must be made for parents with disabilities so they can participate in school functions essential to their child’s education. i.e. parent-teacher conferences

35 An employee is not otherwise qualified if that employee cannot perform the essential functions of the position even with reasonable accommodations Employees must be individually assessed for fitness to perform the job in question An employer is not required to provide an accommodation if doing so would create and undue financial or administrative Burdon

36 If an employee is no longer able to perform the essential functions of his or her job, the employer must transfer an employee with a disability to another vacant position if one exists and the employee is qualified for the position; however, an employer is not required to create a new position for the employee with a disability

37 In most jurisdictions, sovereign immunity cannot be used as a defense in a lawsuit under section 504. School employees can be held personally liable for damages if an act of discrimination is egregious and intentional.

38 Barrier-Free Facilities Architectural Transportation Barriers Compliance Board (ATBCB) - –had the sole responsibility for maintenance of barrier-free schools –When the ADA was passed in the Department of Justice or DOJ became the organization in charge of enforcing the requirements of the law

39 –§ 504 specifies that all facilities must be usable by individuals with disabilities –ADA applies to all new construction after 1/26/92 and all renovation construction after 1/26/93 Alterations or renovations include: remodeling renovation, rehabilitation reconstruction, historic restoration changes or rearrangement in structural parts or elements and changes or rearrangement in the plan configuration of walls and full-height partitions

40 –Specifications The ANSI (American National Standards Institute) standards are the basis for the accessibility standards for the ADA Most ANSI minimum guidelines are specified in state building codes They are designed so that individuals with disabilities can… “live, study, work, and participate in other community activities, fully develop their human potential”

41 ANSI deals with –Accessible route –Protruding objects –Ground and floor surfaces –Parking spaces and passenger loading zones –Curb ramps –Stairs –Elevators –Platform lifts –Windows –Doors –Entrances –Drinking fountains and water coolers –Water closets –Toilet stalls –Urinals –Lavatories –Sinks and mirrors –Bathtubs –Shower stalls –Storage –Grab bares and tub shower seats –Control and operating mechanisms –Alarms and detectable warnings –Signage –Telephones –Seating –Tables and work surfaces –Auditorium and assembly areas and dwelling units

42 These standards are based on “adult dimensions” however accommodations must be made for the age of the people using a particular building

43 –Enforcement Parents, students and community members have many times filed suits against school districts for not being in compliance with accessibility codes Failure to provide handicapped access to school events Not providing adequate or any handicapped parking spaces Holding public meetings in facilities that are not accessible by the handicapped public –Many times complaints are made to the EEOC or the Human Rights Commission

44 Barrier Free Facilities Recommendations for Practice School officials are well advised to check their statewide building code, as well as the ADA, regarding disability accessibility before altering existing facilities or constructing new ones. Alarmist fears of excessive escalation in building costs to achieve accessibility have largely been just that, unsubstantiated fears. School officials need to examine building codes carefully for key elements to determine whether:

45 the scope of renovations requires compliance with accessibility the standard for accessibility has been published, the district has an established approval process for determining compliance with accessibility a variance is necessary for intended alterations or new construction employees are adequately instructed in the importance of maintaining an "accessible route" under ADA

46 IEPs, Least Restrictive Environment, and Placement Special Education is not about the law, it is about educating students with disabilities in special ways Special Education is not about where students are educated it is about how students are prepared for the future

47 –Defining Special Education and the Purpose of I.D.E.A. The purpose of IDEA is to, “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs, and prepare them for further educational, employment and independent living”

48 The federal statute defines special education as, “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings” –Specially designed instruction is defined as, Specially designed instruction means adopting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction – –To address the unique needs of the child that result from the child’s disability; and –To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.

49 –In providing students with FAPE school personnel must adhere to the following process: Finding a student eligible to receive special education Developing the student’s IEP Only then determining the instructional placement that, for this particular student, constitutes the LRE.

50 The IEP must never be developed by one person. It should be a cooperative effort between the parent and school personnel

51 IEPs: Prescribing an Appropriate Education – FAPE is insured through the IEP process. An IEP is defined as the following, “An IEP is a written document that describes a child’s educational needs, that details the special education and related services the district will provide to meet those needs, and that stipulates the goals that will serve to assess whether the student’s needs were, indeed met”

52 –Formats for IEPs will different in each state, but each IEP must contain the following components: –Performance Data –Measurable Annual Goals –A Means to Measure Progress –Services and Modifications –Instructional Placement –Individually Appropriate Testing Accommodations –Initiation Date and Service Delivery Details –Transition Services

53 –Special attention must be give to: The academic strengths of the student Most recent and initial evaluation assessment of the student Behaviors of the student –Development of a behavior modification plan, is necessary if behavior enters into the IEP Communication needs of the student Technology needs of the student

54 –Determining the Extent of Educational Benefit In determining the extent of educational benefit the courts developed a two prong test; –Has the program embodied in the IEP been developed by the school system in a manner procedurally consistent with the law? –Is the IEP based on a student’s unique educational needs and reasonably calculated to confer educational benefits?

55 It should be noted that “appropriate” as defined by the court means, “tailored to the child’s individual needs, not the to the needs of the school district” The courts determined that student is entitled to a “Chevrolet” type of education rather than a “Cadillac”. It needs to be good but not fancy

56 –Good grades may not be all that is needed to prove that FAPE has been provided Nein v. Greater Clark County Sch. Corp., CAUSE NO. NA C-H/G, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION, 95 F. Supp. 2d 961; 2000 U.S. Dist. LEXIS 6405, April 17, 2000, DecidedNein v. Greater Clark County Sch. Corp.

57 Deal v. Hamilton County Dep't of Educ., No / , UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 08a0011n.06;, 258 Fed. Appx. 863; 2008 U.S. App. LEXIS 514; 2008 FED App. 0011N (6th Cir.), January 7, 2008Deal v. Hamilton County Dep't of Educ.

58 LRE: Utilizing the Principle of the Least Restrictive Environment –Courts view the most LRE as the regular classroom where students receive instruction LRE is not necessarily a “place” LRE may refer to special instructional needs –Special material or technological needs –LRE has more to do with the procedural process than where the instruction occurs –LRE may be in a resource rooms, special schools, hospitals or individual homes where the IEP can best be implemented

59 Placement: Determining Appropriate Educational Settings –Placement is not heard by the Supreme Court, so the districts have developed a variety of criteria to address this issue: Daniel R.R. v. State Bd. of Educ., No , UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 874 F.2d 1036; 1989 U.S. App. LEXIS 8422, June 12, 1989Daniel R.R. v. State Bd. of Educ.

60 –To determine appropriate placement and the LRE schools should ask the following: Has the school taken steps to maintain the child in the general education class: What supplementary aides and services were used? What interventions were attempted? What are the benefits of placement in a general education setting with supplementary aids and services versus the benefits of placement in a special educational setting: What are the academic benefits? What are the nonacademic benefits such as social communication and interactions?

61 What are the effects on the education of other students: If the student is disruptive, is the education of other students adversely affected? Does the student require an inordinate amount of attention from the teacher, and, as a result, adversely affect the education of others? If a student requires a separate setting, are appropriate opportunities for integration available? In what academic settings is the student integrated with non-disabled students? In what nonacademic settings is the child integrated with non-disabled students? Is the full continuum of alternative services made available across the system from which to choose an appropriate placement?

62 Decisions about placement can be addressed by using a sequential format that begins by considering whether the appropriate educational services written in the IEP can be delivered in the regular class if modified through the use of supplementary aids and services. If the answer is yes, than the regular class is the primary placement. If not, the team would move along the continuum of alternative placements one step at a time, for regular class to resource room to separate class to separate school-residential setting-hospital-or home, considering whether the appropriate educational services might be delivered with appropriate supports until the answer yes is obtained.

63 Changing Placements and Protecting Individual Rights –Parents have a right to receive notice if the school is proposing a change of placement. –Graduation is considered a change of placement and parents must have notification and the right to an appeal –The “stay-put” provision of the law prevents school officials from disrupting the provision of FAPE by removing students from placements over parental objections. Hale v. Poplar Bluff R-I Sch. Dist., No , No , UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 280 F.3d 831; 2002 U.S. App. LEXIS 2173, December 13, 2001, Submitted, February 11, 2002, FiledHale v. Poplar Bluff R-I Sch. Dist.

64 CP v. Leon County Sch. Bd., No , UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 483 F.3d 1151; 2007 U.S. App. LEXIS 8220; 20 Fla. L. Weekly Fed. C 484, April 10, 2007, Decided, April 10, 2007, Filed, Rehearing, en banc, denied by CP v. Leon County Sch. Bd., 2007 U.S. App. LEXIS (11th Cir. Fla., Aug. 7, 2007)US Supreme Court certiorari denied by C.P. v. Leon County Sch. Bd., 128 S. Ct. 232, 169 L. Ed. 2d 175, 2007 U.S. LEXIS (U.S., 2007)CP v. Leon County Sch. Bd.

65 Suspension and Expulsion –The only exception to “stay-put” occurs when a hearing officer finds substantial evidence to indicate that it would be dangerous for the student to remain in the current placement. In the case of severe bodily harm to other students, weapons, or bringing illegal drugs to school, the school may suspend a student for up to 45 days. Even during this period an interim alternative educational setting must be provided.

66 Finally…”Laws alone cannot create good administrators, or good teachers, or good schools, but they certainly can take away very hard won rights.”

67 IEPs, Least Restrictive Environment, and Placement Recommendations for Practice In making IEP and placement decisions for students with disabilities, there is no substitute for implementing IDEA with integrity. In making decisions with confidence, school principals should anchor their actions in the law's conceptual foundations. The following recommendations are grounded in the trinity of FAPE, LRE, and validated practices so that principals might guide the delivery of effective special education in their schools

68 Make ethical and legally defensible decisions. Promote professional behavior among faculty members that pays more than lip service to providing equity, quality, and opportunity for all learners. Schools are now enrolling record numbers of students whose learning dif­ferences would have once excluded them from receiving a public education. But for some special education students, functional exclusion is still a reality when schools fail to deliver specially designed instruction or teachers fail to follow the prescriptions of an IEP. As a result, these students "experience a different kind of segregation—the exclusion from the basic right to learn.

69 Directly address individuality and exceptionality in learning. School leaders are in strong positions to articulate that special education is for students with disabilities who need to learn something different or who need to learn the same thing as everyone else but in a different way. Special education is not for any student who fails in the general curriculum but for students who, because of the extent of their disability related needs, require different ways to learn and to demonstrate what they know in order to meet with school success. Special education, with its guarantee of an appropriate public education in the least restrictive environment, is for individuals whose disabilities threaten to handicap their future if left unnoticed and unaddressed.

70 Ensure the delivery of special education that is legally correct and educationally meaningful. Communicate to stakeholders the statutory purpose of IDEA and the legal meanings of its critical components, including free appropriate public education, special education, and placements made in accordance with the principle of least restrictive environment. Although these are familiar terms to most educators, they are often used incorrectly, leading to imprecision, which, in turn, leads to violation of the law and nullification of FAPE.

71 Provide IEPs that address the procedural and substantive requirements of IDEA. Serious procedural violations have been viewed by courts as violations of FAPE if they result in harmful disruption to the delivery of appropriate instruction and educational services.

72 Develop IEPs that rely on current and relevant data about the unique educational needs of each student, not on the prerogatives of the school system or on the availability of services. Avoid filling IEPs with details about content standards. Focus, instead, on the necessary adjustments to be made in providing intensive and specific instruction in academics and desirable behavior so that students can appropriately access and participate in the general curriculum, and meet their disability related goals.

73 Do not make policies of "full inclusion" in substitution for IDEA's requirement for school systems to make available a full continuum of alternative placements. Use student-specific IEP data, not philosophical arguments about inclusion, in making legally correct decisions about placements that constitute the LRE for each student.

74 Remember that services to students are not to cease because of suspension or expulsion from school. Any change of placement, for any reason, requires that parents be notified of the school's intent to remove their child from the current setting. Remember, too, that IDEA has a strong preference for the placement that represents the status quo.

75 Support high expectations for positive results. Ensure that professionals use effective instructional methodologies and assessment systems that have a demonstrated record of being successful for students with disabilities. Ensure that special and general educators balance a student's need to be successful in the general curriculum with the need to learn from a specialized curriculum in other areas.

76 Establish productive partnerships with parents. Notify parents in writing before taking any action regarding their child's programming or placement. Give parents a copy of procedural safeguards before IEP meetings and provide them with genuine opportunities to participate in any meetings regarding their child. Involve parents as full partners but do not appease them by forsaking professional judgment about the best interests of their child.

77 Remember, schools have the best hope for meeting state standards and national goals adequately when they are vigilant in meeting the needs of their students with disabilities appropriately.

78 Related Services under IDEA Related services are those services that “are necessary for a child with disabilities to remain at school during the day”

79 –Definition of Related Services Related Services are: Speech and audiology services Psychological services, rehabilitation therapies Recreation Therapeutic recreation Social work services Counseling services; and

80 –Medical services if they are for the purpose of diagnosis and evolution of the disability to qualify or receive special education benefits Irving Independent School Dist. v. Tatro, No , SUPREME COURT OF THE UNITED STATES, 468 U.S. 883; 104 S. Ct. 3371; 82 L. Ed. 2d 664; 1984 U.S. LEXIS 152; 52 U.S.L.W. 5151, April 16, 1984, Argued, July 5, 1984, Decided ☼Irving Independent School Dist. v. Tatro☼ –This case defines supportive services that school sys­tems are required to provide in order to enable disabled children top benefit from special education. –It is important to remember that the courts generally define “excluded medical services” as those that must be provide by a physician.

81 Cedar Rapids Cmty. Sch. Dist. v. Garret F. by Charlene F., No , SUPREME COURT OF THE UNITED STATES, 526 U.S. 66; 119 S. Ct. 992; 143 L. Ed. 2d 154; 1999 U.S. LEXIS 1709; 67 U.S.L.W. 4165; 161 A.L.R. Fed. 683; 99 Cal. Daily Op. Service 1582; 99 Daily Journal DAR 2029; 1999 Colo. J. C.A.R. 1126; 12 Fla. L. Weekly Fed. S 129, November 4, 1998, Argued, March 3, 1999, Decided ☼Cedar Rapids Cmty. Sch. Dist. v. Garret F. by Charlene F.☼ –School districts are required to provide related services to special education students regardless of cost.

82 Nature and Scope of Related Services –Transportation –In most cases transportation services are reimbursable expenses to the parent. Aaron M. v. Yomtoob, No. 00 C 7732, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, 2003 U.S. Dist. LEXIS 21252, November 25, 2003, Decided, November 26, 2003, DocketedAaron M. v. Yomtoob

83 –Disputed Medical Services Important to remember that “Early Identification” or the “Child Find” provision of IDEA is very important. –Dep't of Educ. v. Cari Rae S., CIV. NO SPK/KSC, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII, 158 F. Supp. 2d 1190; 2001 U.S. Dist. LEXIS 11376, August 3, 2001, Decided, August 3, 2001, FiledDep't of Educ. v. Cari Rae S.

84 –Two questions to ask in regards to related services Does the required service provide the student meaningful access to special education services? Does the requested service fall under the definition of an excluded medical service? –School Leaders will generally prevail in court if they provide the supportive services a student needs to reach school, to stay in school, and to participate in the special education programs designed to give them meaningful educational experiences. Implications for Educational Leaders

85 Transition: Individuals with Disabilities –Transition services are defined as a “coordinated set of activities for student, designed within an outcome-oriented process, which promotes movement from school to post school activity, including post- secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation” Transitions must be discussed in the IEP

86 Transition Program –The school transition program follows a four step procedure; Foundation Process Culmination Follow-up –Training should be included in the curriculum for all SE students with IEPs –Survival skills should always be addressed in every transition program –Follow-up is the last step of the transition program. This evaluation allows for program improvement in the future transition plans

87 The IDEA requires that the child must be invited to the IEP team meet­ing if the purpose of the meeting is to discuss postsecondary goals for the child. Furthermore, the parent/guardian, child's special education teacher or related services provider, regular education teacher, and local educational agency representative are required to attend IEP meetings. If the child is sixteen years old or older and unable to attend the meeting, the law requires that steps are taken to ensure the child's preferences and interests are considered.

88 Special Education Legislation –Transition is address in many federal laws ranging from IDEA, Carl Perkins Vocational Education Act and the ADA Vocational Education –The Carl Perkins Act allocated money to schools for vocational education. 10% of these funds are designated for students with disabilities and 22% of the funds are designated for students that are considered disadvantaged –There is a direct link between transition programs and vocational education

89 Rehabilitation Legislation –Vocational Rehabilitation is a big part of the transition program. It is designed to support handicapped individuals from transitions from public school to the work place. In many cases it will be provided from individuals throughout their lives Employment-Related Legislation –Job Training Partnership Act of 1982 – Provides incentives to employers to accommodate individuals with handicaps. –Supplemental Security Income Improvement Act of 1986 allowed participation in training programs including supported employment, while individuals were still receiving income assistance.

90 Trends and Upcoming Legislation –IDEA is reauthorized about every 5 years, with most changes being effective on July 1, Each IEP must include a student of inter-agency responsibilities IEP from one district to the next must be honored until a new IEP is developed. When a child is transitioned from Early Childhood (Part B) to Kindergarten (Part B) parents can request that representatives from Early Childhood be present to assist with the transition of services.

91 Transition: Individuals with Disabilities Recommendations for Practice The focus on transition represents an important milestone in the history of efforts to serve individuals with disabilities. Past efforts were basically designed to guarantee access. Current efforts focus on the outcomes of special education. Do public school programs target eventual adult status and community participation? Have agencies with programming responsibility for individuals with disabilities developed agreements that will ensure continuous service during the transition from school to work and community living? Have the community agencies developed agreements with regard to the agency that will take primary responsibility with regard to case management? Current legislation suggests some practices that can be recommended for site level program administration.

92 –An individualized education program (IEP) must be developed for each student. This plan must include descriptions of services and who will be responsible for providing the services. It is important to note that this plan will include a wide variety of activities that are other than traditional academic programming. Efforts will include cooperation with other service agencies.

93 –The individualized education program (IEP) should be carefully developed to ensure that all necessary information is included. Service recommendations will not be needed for each individual in all areas. The IEP should include consideration of each of the following areas: instruction, community experiences, employment and other post-school living objectives, acquisition of daily living skills and functional vocational evaluation. Any area of which there is a recommendation must also include a statement of who will take responsibility for carrying out the action.

94 –Cooperative relationships and agreements should be established with adult service agencies such as the Department of Rehabilitation, Mental Health, and Developmental Disabilities. Collaborative programs should be initiated to ensure that the transition from school to work or post- secondary programs will be a smooth one. An individual should be appointed with specific responsibility to serve as a liaison with community services agencies.

95 –School curricula should be focused on the development of func­tional skills, those skills necessary for successful adult life. Programming for youth with disabilities should include some balance of attention to vocational, independent living and recreation and leisure activities. It must be recognized that appropriate programming for students with disabilities will not, in the vast majority of cases, be parallel to the regular academic programs. The law, however, requires that the least restrictive environment be enforced. Students who are able to be successful in the general education program, with support, must be provided the opportunity to do so. Decisions about inclusion must not be made exclusively on the basis of philosophy. Rather, student performance data should guide these determinations.

96 –Schools must make renewed efforts to involve families in the program development process. Parents who are full participants in program planning are less likely to initiate legal challenges that are costly both in time and resources.

97 –Because transition is an outcome-based process, data collection is of increased importance. Follow-up studies of program graduates should be initiated. These data can be used to make any necessary program modifications.

98 –Transitional programming for youth with disabilities should be viewed as a proactive process. Program opportunities that will enhance the likelihood of student success should be identified and supported. Schools need to take the initiative in developing community-based vocational programs. School programs that have the greatest potential for practical application in adulthood should be developed. Programs with no demonstrable adult applications should be abandoned.

99 –Efforts to educate school personnel and the public to the fact that appropriate programs for youth with disabilities are functional rather than academic should be initiated. The function of schooling for this group of children is to prepare for successful adulthood, and this information should be established and communicated.

100 –A final area is for transition planners to develop an awareness of community-based existing natural supports. Increasingly, these resources are receiving attention in the research literature. Exemplified by groups including churches and economic organizations, social or athletic groups and business clubs, there is great potential in facilitating community integration through these voluntary attachments.

101 Disciplining Students with Disabilities Up until 1997 the information provided through IDEA about student discipline was very sketchy. In 1997 discipline procedures became more specific, and in many cases, more unreasonable. There has been some relief provided by the 2004 reauthorization in allowing school leaders more flexibility in disciplining students with IEPs.

102 2006 Reauthorization The discipline sections grant local education agencies increased unilateral authority and reconfigure requirements for making a manifestation determination. The regulations were revised in 2006, adding further clarity to the implementation of the newly tooled provisions.

103 Discipline and the I.E.P. Behavior should be assessed on each student in every IEP. If behavior is noted as an issue is should be addressed by a behavior plan. Early intervention is much better than waiting for a situation to occur Ten days suspension, either consecutively, or accumulated generally constitutes a “change of placement” If it is noted that there are behavior problems with a child, a functional behavior plan should be included in the IEP It is important to note that not all bad behaviors are a result of a child’s disability, however, there are some instances where the behavior is a result of the child’s problem.

104 –Suspension in its Various Forms Honig v. Doe, No , SUPREME COURT OF THE UNITED STATES, 484 U.S. 305; 108 S. Ct. 592; 98 L. Ed. 2d 686; 1988 U.S. LEXIS 446; 56 U.S.L.W. 4091, November 9, 1987, Argued, January 20, 1988, DecidedHonig v. Doe –No change in placement unless over 10 days of either accumulated or consecutive suspension.

105 School Leaders must remember that attendance in summer school, even when voluntary, will count toward the 10 day limits. It is very important for the School Leader to keep track personally and not to rely on Special Education personnel to notify about number days suspended Even though a student is suspended, services must be continued If suspended, the IEP committee must hold a “manifestation determination” meeting within 10 days.

106 –A Word about In-School Suspension ISS may count toward the 10 day limits unless the student is allowed to: –Continue to appropriately progress in the general curriculum –Continue to receive the specific services in the student’s IEP –Continue to participate with non-disabled students to the extent that the student would in his or her current placement –Behavior plan could provide directions for ISS placement. i.e. Student’s special education teacher is notified when the student reports to ISS

107 –If suspension is anticipated, provisions for serving ISS should be included in the IEP The IEP team may want to include the procedure for ISS in the student’s behavior plan: Notify the student’s special education teacher so that the teacher will know where the student is located when it is time to provide certain services contained in the IEP –The plan should indicate that the student will continue working on assignments form the various classes during the time he/she is in ISS so as to be considered separately from the 10 day limits. –Suspension from the school bus can be counted toward the 10 day limit if transportation is written into the IEP.

108 Pattern Of Suspensions –If students develop a “pattern of suspension” exceeding the 10 day limit the school would need to follow the following steps: Develop a functional behavioral assessment plan Conduct the assessment and formulate a behavioral plan Hold a manifestation determination conference to decide whether the student’s disability directly caused the misbehavior that brought about the suspensions Provide notice to the students parents of all other necessary procedural safeguards –It is an excellent idea for school leaders to meet and address suspension issues before reaching the 10 day limits –Be careful to not exceed the 10 day limits, even though you may believe that the separate incidents do not establish a pattern of suspension

109 –Use of the Forty-Five-Day Interim Alternative Educational Setting Interim Alternative Educational Setting (IAES) When triggered by a student bringing a weapon to school, knowingly possessing or using illegal drugs or soliciting the sale of a controlled substance at school or a school function, or inflicting serious bodily injury upon another person at school or at a school function When ordered by an independent hearing officer upon a determination that the student is a danger to self or others

110 –What are the definitions of: Weapons? Drugs? Serious Bodily Injury? –Even if placed in an IAES the student must be served according to the IEP. The plan for the IAES must include: A functional behavioral assessment Behavioral intervention services, modifications that address the student’s behavior and are designed to prevent the behavior from recurring. –The parent needs to be notified immediately about suspensions and provided with a written copy of procedural safeguards –Must meet within 10 days to have manifestation determination If related to disability, the suspension is not continued If not related to disability, the suspension can be continued with a revision in the IEP.

111 –On parent appeal, the hearing officer will evaluate the manifestation determination –Schools can ask for an injunction to immediately eliminate a student from attending school The judge is not held to any limits is terms of number of days suspended

112 Expulsion or Other Change of Placement for Disciplinary Reasons –Parent notification is essential, including written notification of procedural safeguards –Very important to have recent evaluation results for the student, prior to the manifestation determination hearing –The components of the manifestation determination hearing include the following information: Relevant information from supplied by the parent Teacher observations of the student The student’s IEP

113 –Makes two determinations That the student’s disability caused or had a direct and substantial relationship to the conduct in question That the conduct in question was the direct result of the school’s failure to implement the IEP –If the parent appeals the decision; Goes to a hearing officer, and stays in educational placement until the decision is granted by the hearing officer (Unless a 45 day provision is enacted) –It is very wise to consider a periodic review of suspensions

114 Application to Students Not Yet Eligible for Special Educational –Students can be eligible for IDEA protections, prior to being officially identified; If the student’s parent has expressed concern in writing to appropriate supervisory or administrative school personnel or a teacher of the child that the student is in need of special education and related services The student’s parent has requested an evaluation and has followed formal evaluation procedures The student’s teacher or other school personnel have expressed specific concerns about a pattern of behavior demonstrated by the student directly to either the director of special education or other supervisory personnel in accordance with the school’s “child find” or special education referral procedure.

115 A parent just saying that the child needs services is not considered a formal request If the student is on suspension and the parent asks for an evaluation, the school must proceed in an expedited manner. If the student qualifies for services the IEP team would then move to a manifestation determination. Results of this assessment would determine when services would begin. It is very important to notify staff about the components of “child find” in your local policy

116 Referral to Law Enforcement/Judicial Authorities –An unusual case: Morgan v. Chris L. by Mike L., No , UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 1997 U.S. App. LEXIS 1041, January 21, 1997, FILED, NOT RECOMMENDED FOR FULL- TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED., Reported in Table Case Format at: 106 F.3d 401, 1997 U.S. App. LEXIS Certiorari Denied June 9, 1997, Reported at: 1997 U.S. LEXIS 3663Morgan v. Chris L. by Mike L. –The reporting of a crime is the same for all students –Student records and IEPs are not given to law enforcement officers without the permission of the parents or a court order (subpoena) Be careful not be pulled into a violation of FERPA by the request of law enforcement personnel

117 Disciplining Student with Disabilities Recommendations for Practice –Suspension Under a suspension," no services—including a behavioral assessment or behavioral planare required unless the student has already been suspended for ten cumulative days in that school year, repeated suspensions constitute a change in placement, or behavior is determined to impede hearing.

118 When repeated suspensions total ten days or less, services must be provided to the extent necessary for the student to participate in the general education curriculum and progress towards meeting his or her IEP goals. The extent of necessary services is determined by school personnel in consultation with the student's special education teacher. When suspensions exceed ten cumulative days in a school year, the IEP team must convene to develop a behavioral plan. If the student has a behavioral plan, the IEP team must convene within ten business days of removal to review the behavior plan and make any necessary changes.

119 A change of placement occurs for removal for more than ten consecutive days or if a series of suspensions forms a pattern based on the length of each suspension, the total amount of time the student is removed, and the amount of time between suspensions. A manifestation determination, other procedural safeguards, and previous steps for less than ten day suspensions must be implemented.

120 Schools can unilaterally assign the student to an IAES designed by the student's IEP team when the student (1) brings a weapon to school or a school function; (2) possesses, uses, or sells drugs at school or a school function; or (3) inflicts serious bodily injury on another person at school or a school function. The student may be suspended for ten days or less while the team designs the IAES. The parents must be notified "no later than the date on which the decision is made" that the school is placing the student in an IAES and the notice of procedural safeguards must be provided. Within ten business days of the suspension, the IEP team must meet to design an assessment plan or review a current behavior plan.

121 Within ten days of the decision to initiate the IAES, the student's IEP team must convene to conduct a manifestation determination review as in cases of expulsion. If the behavior is not a manifestation of the disability, the school may continue with the expulsion proceeding, and the IEP team would determine services to be provided once the student is expelled. If the behavior is a manifestation of the disability, the student may remain in the IAES for the forty-five calendar days and then would be returned to his original placement unless a change of placement has been agreed upon by the school and the student's parents.

122 When triggered by dangerous behavior, the school can seek a judicial order to move the student to an IAES or can reach an agreement with the student's parent. Otherwise, the school must seek an expedited due process hearing. To change the placement, the hearing officer must determine that the current placement is likely to result in injury to the child or to others.

123 –Expulsion When a school seeks an expulsion69 or move to an IAES for a period of more than ten school days, the school must notify the parent on the day the decision is made and provide notice of procedural safeguards. The student can be suspended for no more than ten consecutive school days (or forty-five in IAES if drug or weapon related) and the school must convene the case conference within ten business days to conduct a functional behavioral assessment and formulate a behavioral assessment plan or to revise an already existing behavioral plan.

124 Within ten school days of making the decision to expel or remove the student to an IAES. The school must conduct a manifestation determination conference to consider relevant information provided by the parent, teacher observations of the student, and the student's IEP. They must determine whether (1) the student's disability caused or had a direct and substantial relationship to the conduct in question, and whether (2) the conduct in question was the direct result of the school's failure to implement the IEP.

125 If the act was a manifestation of the disability, the case conference determines whether a change in services and/or placement is warranted and remedies any deficiencies in the IEP.

126 If it is not a manifestation of the disability, the school sends notice of the decision and procedural safeguards to the parent, proceeds with the expulsion and sends records to the expulsion examiner. If the parent files for a special hearing, the students stays in the IAES until the forty-five-calendar-day period expires, moves to another placement with the agreement of the school personnel and parents, or returns to the last placement under the current IEP.

127 Parent Rights School Leaders have the responsibility of developing a communication system between the school, teachers, parents and students. The sophistication of this communication system will either enhance or detract from a “parents right to know” and the “parents right to participate” in their child’s education Parents have the right to: –Be notified of school district actions –Give consent before school officials may take certain action –To provide input in decision making about the child –To seek independent evaluation –To access records –To make complaints and to see dispute resolution

128 –Rights to Notice of the Law Parents have a right to know what federal laws apply to their children under IDEA Procedural safeguards must be provided to parents on a variety of occasions. Providing these safeguards helps to insure that the parents are involved with the school in providing FAPE for their child Using the internet and the school’s website to post procedure safeguards is a good idea, however, it is not without possible legal problems

129 –Notice to parents of their rights under IDEA is not a one time event. Procedural safeguards should be given: When the child is referred for evaluation When a complaint is filed, even when the parent is the one who files the complaint When a change of placement is contemplated –The School Leader should have a copy of the procedural safeguards and be able to explain them to parents. They should be written in plain language and be easily understood by parents They should be in a variety of languages that apply to the demographics of the school –The School Leader must make sure that he/she explains to the parents that they do have the right to sue the school district if they believe their child is not being provided a FAPE!

130 Parents must be given a copy of their rights only once per school year, and whenever a parent so requests, but there are events that trigger the obligation to provide to them with still another copy. –Change of placement –Referred for evaluation –Removal of student for code of conduct issues

131 –Rights Regarding Evaluation Parents must give written consent before their child may be tested – school must give procedural safeguards at this time Parents may revoke consent at any time If parents refuse to sign consent, the school can go to due process If the school asks for due process, the parent must be notified and provided with procedural safeguards

132 –If the school does not do an adequate job in the “child find” process and the parent removes the child from school in to a private setting, the district may be responsible for tuition if the child is later found to qualify for services under IDEA Doe by & Through Doe v. Metropolitan Nashville Pub. Sch., No , UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 133 F.3d 384; 1998 U.S. App. LEXIS 8; 1998 FED App. 0001P (6th Cir.), October 23, 1997, Argued, January 5, 1998, Decided, January 5, 1998, Filed, Rehearing Denied February 13, 1998, Reported at: 1998 U.S. App. LEXIS Certiorari Denied October 5, 1998, Reported at: 1998 U.S. LEXIS 4800.Doe by & Through Doe v. Metropolitan Nashville Pub. Sch.

133 Sometimes students do not qualify for services under IDEA because of non-school related issues. i.e. drug use, juvenile delinquency, family dysfunction. Caution should be used in these areas, as many students will qualify for services in the academic setting even if the school believes there are other reasons If the school refuses to test, parents must be notified in writing and give the opportunity to appeal. Must also be given procedural safeguards informing them of the right to sue the district

134 An evaluation must be conducted within sixty days after receipt of the parent's written consent. If the parent refuses to consent or revokes consent during the evaluation process, the principal may meet with the parents to listen to their concerns and to educate them about the need teachers have to understand how the student learns. Extensive knowledge of curriculum, assessment, and teaching is fundamental to the principal acting as an instructional leader in this situation. The willingness of the principal to openly communicate the importance of evaluation depends largely upon respect for the parent's feelings, fears, and rights.

135 With a refusal to consent to testing, the principal may offer parents an opportunity to participate in mediation in order to convince them of the need for testing. In mediation, a trained individual with no subjective interest in the outcome of the interest-based dialogue works with the parents and a representative from the school to come to a mutual decision about testing. If efforts to obtain written informed parental consent for testing have been unsuccessful, the school district has the option to seek a due process hearing to ask for a hearing officer to compel the evaluation.

136 –Rights Regarding Identification After the evaluation, the parent still has a right to exclude the student from receiving services The School Leader should evaluation placement with the following two criteria: –The student must meet the eligibility requirements under one or more of the disability categories listed in IDEA –The student must be in need of Special Educational Leadership

137 If a parent disagrees with the assessment used, they have a right to an “independent educational evaluation” (IEE), at the district’s expense The district can take this request to due process, but many times it is quicker and less expensive to state up front that the district will provide for an IEE if the parent is not satisfied. (This is also the right thing to do)

138 –Rights Regarding Decision Making Parents are entitled to be a member of any team assembled to make decision about the identification, evaluation, and eligibility of their child Participate by the parent does not always have to be face to face. Video conferencing and conference calls can also be used after the development of the initial IEP and placement When an IEP meeting is called the parent must be informed about the time, place, purpose, and who will be in attendance. This notice should be in writing

139 –People on the IEP team should include: LEA representative Case manager Parent – and guests are parent chooses Teachers that are responsible for certain parts of the IEP Specialists that are involved as needed –Parents can excuse certain members of the IEP team, however, this permission to be absent must be in writing

140 Parents are not entitled to attend every meeting that pertains to Special Education services. (Staff meetings, in- services, etc.) Parents do not have the right to chose their child’s teachers or aides When services are provide for the student outside of the school district, such as PT, OT, or Deaf Interpreters, the parents can make suggestions for personnel, but the school district has the final say on who is employed Parents must give consent for evaluation, and give consent for placement. These are two different activities.

141 If parents disagree with any change in the IEP, placement, or service, they may take this to a due process hearing If a parent disagrees with a new part of the IEP, the school must continue to address all of the areas in the IEP that the parent has approved. If students move into the school from another school in the same state, the principal should convene the IEP team to continue the IEP in place or develop a new one. If the student moves into the school from another state, the principal should consult with the parent to adapt the current IEP to the services that are available. A new IEP should be developed in an expedited manner.

142 If a student with an IEP is pulled from the school to a home or private situation, the school district must continue to serve the student. If the school unilaterally discontinues service, this is a considered a violation of a FAPE. –Hale v. Poplar Bluff R-I Sch. Dist., No , No , UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 280 F.3d 831; 2002 U.S. App. LEXIS 2173, December 13, 2001, Submitted, February 11, 2002, FiledHale v. Poplar Bluff R-I Sch. Dist.

143 –Rights Regarding Reevaluation Reevaluation may occur when both the parent and school agree. The reevaluation should not occur more than one time per year, unless there are special circumstances Every IEP must be reevaluated every 3 years If parents refuse to provide consent for reevaluation, the school may continue with the process as long as they can prove through documentation that contact has been attempted. As a general rule, at least three attempts to contact should be made. If a student “ages out” or graduates with a “regular” diploma, no reevaluation is necessary, however, notice of a change of placement and procedural safeguards must be given to the parents.

144 –Rights Regarding Educational Records F.E.R.P.A. is the prevailing rule Parents must be providing copies of records within 45 days of request. (This is an unreasonable length of time to wait, a better rule would be 10 working days) Parents have access to all student records, but they do not have a right to the “private notes” of the teacher or principal The principal should be aware in changes of custody due to divorce or separation.

145 Logs must be kept by school officials to record the name, date, and purpose oft hose who access student records, except parents and authorized employees with legitimate educational interests. These logs constitute an educational record to which a parent may request access. Importantly, parents are entitled to not only inspect education records, but they are entitled to an explanation of them as well. Whenever a request for a records inspection is made, the principal should be prepared to answer any questions the parent may have.

146 –Non-custodial parents have the same rights as custodial parents in reviewing records, however, only the custodial parent has the right to approve reevaluation, change in placement, due process, etc. –The IEP must be made available to all parties that have a part in implementing the educational plan –The principal should develop a method of communication that will keep all parties informed; Ensure that teachers know a student’s needs before they enter the classroom Apprising teachers and staff of their record keeping duties Encouraging “pro-activity” in keeping parents informed of student progress or lack there of Valuing the importance of the IEP team as a decision-making body Developing a process and procedure to make the principal aware of problem, concerns, and questions that a teacher or parent may have –Schools can charge a minimal cost for copies. This is a bad idea, copies of all student records should be provided to parents (custodial and non-custodial) at no charge

147 –Rights to Complain Regarding District Policies Parents have a right to complain about identification, evaluation, placement and the provisions of FAPE. Each of these follows the procedures of: –Meeting with the IEP team –Going to mediation –Due process hearing

148 –Parents should be directed through the chain of command for “school complaints” Teacher Principal Superintendent Board of Education/State Complaint procedure –If the school is investigated by the state, the state must investigate, and provide written findings of fact

149 –Rights to Disagree Regarding Student’s Program Parents can dispute; –Identification –Evaluation –Placement –Provision of FAPE Parents are provided with –Mediation (if they choose, this is voluntary) –Due process hearing

150 If a parent chooses mediation and the process fails, all information discovered in the mediation process may not be used in further proceedings Any decision made in mediation must be in writing to all parties involved Confidentiality applies to all mediation proceedings The Principal must never breech confidentiality of proceedings even if other parents pursue the same allegations

151 Parents have 2 years to pursue a due process proceeding As soon as a parent requests a due process hearing, the district must again provide them with their procedural safeguards When a parent asks for a due process hearing the district is afforded another opportunity to resolve the complaint If this is unsuccessful, the due process hearings must commence within 30 days. –Parent may be represented by counsel –May call witnesses –Cross examination –Parents have the right to have the child present –The school district is afforded the same rights to representation

152 The decision of the hearing officer is provided to all parties in writing. The appeal of the hearing officer’s decision goes to the civil courts When parents request a due process hearing they must: –Ask for the hearing in writing –Submit the name and address of the child and parent/guardian –List the child’s school of attendance –Include a description of the problem and all related facts –Must propose a resolution to the problem If the school district initiates the due process procedure, they must provide the same information in writing to the parent along with a copy of procedural safeguards

153 –Rights Regarding Attorney Fees Attorney’s fees for parents are not guaranteed –Parents must prevail in the suit –Suit must not be considered to be frivolous or improper –Fees cannot be unreasonable in comparison to community standards –If a settlement is offered, the settlement will first cover the fees of the attorney –If the parents have not met the prescribed components of requesting a due process hearing, the courts may not provide for reimbursement of attorney’s fees

154 –Rights Regarding Placement in Private Schools Parents may remove their child from public school at any time If the parent does not notify the school, they will assume responsibility for the action Parents should notify the school within 10 business days of the removal of the child – unless the child’s health and welfare is at risk Parents should notify the school by meeting with the IEP team to discuss this change of placement

155 If the removal is not due to FAPE, reimbursement for tuition will not be an option If the school district did not provide the parent with the procedural safeguards, the school will be responsible for tuition costs Schools must develop a plan to serve special students in private or parochial schools. The plan is generally a pot of money that represents the per pupil allocation provide to the school from the federal government for the education of handicapped students

156 Parent Rights Recommendations for Practice Parents have the right to be given a copy of their rights under the law. A written copy of the procedural safeguards must be given to parents anytime a parent requests, at the point of initial referral irrespective of who made the referral, then only annually to parents of students already identified as having a disability, each time a change of placement for disciplinary reasons is contemplated, and whenever a complaint is filed. School officials should have a record-keeping mechanism in place that gives them the assurance that parents did, in fact, receive or waive their right to receive a copy of procedural safeguards, especially if or the Internet is involved. Should the school district go to due process that information will be required for the district to prove it met its obligations under the law.

157 Before students are evaluated for a suspected disability, along with a copy of the procedural safeguards, parents are entitled to written notice of the assessments the school district will use in order to identify the existence of any disability, and to give informed consent to testing. Consent may be revoked at any time. In that case, should school officials desire to proceed with the evaluation, they may seek mediation in order to convince the parent of the need for testing, or an order authorizing testing through the due process hearing mechanism.

158 Informed consent is required for a reevaluation, but if the parent does not respond, the evaluation may proceed so long as the district made reasonable attempts to gain such consent. The reevaluation only needs to be conducted once every three years, but school officials and parents may make other arrangements. No reevaluation is required before a student with a disability graduates or ages out but it is necessary if eligibility is at issue.

159 A parent request for student assessment of learning may necessitate an evaluation; however, the IEP team ultimately makes the determination as to whether a disability may be present through a careful analysis of student records, performance, behavior, and affect. If the IEP team, of which the parent is a part, determines that testing is not necessary or is inappropriate, the decision and the team's rationale should be documented.

160 Parents are entitled to participate in the eligibility determination. Eligibility is based on categorical definitions accompanied by the child's need for special education as determined by the entire team. A parent may contest an eligibility decision through optional mediation or due process proceedings.

161 Parents who disagree with the school district's evaluation or eligibility determination have the right to request an independent educational evaluation at public expense if the school district's evaluation is invalid, if the qualifications of the evaluator are improper, or if they disagree with the evaluation's results. The principal may ask the parent to explain the reasoning behind the request, but the parent is under no obligation to discuss it. School district policy will dictate whether the district will issue an invoice for direct payment to the approved independent evaluator or whether the parent must pay for the evaluation and then be reimbursed.

162 If the district believes that its evaluation is appropriate and refuses a request for independent evaluation, the parent is entitled to prior written notice of that decision, including the reasons for the refusal, and notice of the option to contest the decision through optional mediation or due process.

163 The results of any independent evaluation, either paid for by the parent or by the school district, must be considered by the IEP team. Failure to consider the results may result in a denial of FAPE.

164 Parents have the right to meaningful participation at any face-to-face, Internet, video, or conference call meeting regarding the provision of FAPE to the child, including the IEP meeting. Educators must plan the meeting and its purpose and be ready to explain their professional judgments and to answer questions. Not all team members must be present so long as they are not needed or they submit a written report and the parent consents in writing.

165 Consequently, parents are to be given prior written notice of the purpose of the meeting as well as the time, location, and who will be in attendance. Decision making meetings requiring parent attendance do not include business-related, organizational, in-service, strategic, or planning meetings of teachers. To allow otherwise would undermine the educators' need to engage in professional discussion and to give thoughtful consideration to a variety of organizational and staff concerns.

166 Any proposed changes to the child's identification, evaluation, placement, or provision of FAPE require that the parent receives prior written notice of the school's proposal. Anytime the school refuses to change the identification, evaluation, placement, or provision of FAPE to the child, the parent is entitled to receive prior written notice of the district's decision. The notice must include the reasons for the school district's refusal. Advance notice as required provides parents with the opportunity to consider the proposal and to seek advice if necessary.

167 Parents must provide informed consent before a child's placement may be changed, including changes brought about by disciplinary action. Placement changes occur when a student's educational program is significantly altered.

168 Parents are entitled to inspect and review all educational records of their children, and to copies of those records, but divorce, separation, or custody may alter participation and decision-making rights, depending on state law. Principals should identify which parent(s) have access rights and which have decision-making rights and should communicate that information to those with a legitimate need to know. Parents have no right to keep a child's records confidential where school employees have a legitimate need to know, where health or safety of student(s) or school community are at stake, or where law enforcement and juvenile justice authorities are to consider them. The overarching concern for the safety of the entire school community is of fundamental concern to the principal.

169 Parents have the right to present complaints about school district operations, policies, and procedures to the state through the state complaint procedure. The state will follow up with an investigation.

170 Parents have the right to review decisions and present complaints concerning their child's identification, evaluation, placement, and provision of FAPE, first to the IEP team, then through optional mediation, through a resolution session, and finally, in a due process hearing. Parents must exhaust these administrative reviews before they may appeal the administrative agency decision to civil court. School Officials are obligated to present a copy of the procedural safeguards at the time the complaint is files.

171 Parents have the right to attorney fees for the costs of a due process hearing land litigation if they are prevailing parties and do not fail in the requirement to properly apprise school officials of their concerns before removing the child from public school, if the case is meritorious, and if the attorney does not act improperly.

172 Parents have the right to withdraw their children from public schools and to educate them in home schools, private, or religious schools. They may be entitled to reimbursement for those costs if the school district’s placement is inappropriate. Reimbursable costs may be reduced or denied if parents do not properly apprise school officials of their intentions in writing and propose a resolution to the dispute. This award ensures that the appropriate education to which their children are entitled is free and at no cost to them.

173 Assessing Students with Disabilities under the IDEA and NCLB The most recent changes to the accountability provisions for students with disabilities are found in new regulations published on April 9, These final regulations amend the regulations governing the NCLB Act of 2001 and the IDEA 2004 and result in an even stronger alignment between the two laws.

174 These regulations provide States with additional flexibility regarding State, local educational agency (LEA), and school accountability for the achievement of a small group of stu­dents with disabilities whose progress is such that, even after receiving appropriate instruction, including special education and related services designed to address the students' individual needs, the students' individualized education program (IEP) teams (IEP Teams) are reasonably certain that the students will not achieve grade-level proficiency within the year covered by the students' IEPS.

175 These new regulations permit states to develop an additional alternate assessment option. This option is an alternate assessment based on modified academic achievement standards. With this additional option, states now have up to five allowable assessment options for including students with disabilities in the accountability system.

176 Allowable Assessment Options States, have some choices in terms of allowable assessment options for including students with disabilities in their statewide assessment system. –Option 1: General grade-level state assessment (without accommodations) –Option 2: General grade-level state assessment (with accommodations) –Option 3: Alternate assessment judged against grade-level achievement standards –Option 4: Alternate assessment judged against modified achievement standards –Option 5: Alternate assessment judged against alternate achievement standard

177 It is expected that most students with disabilities will participate in a general grade-level state assessment with or without accommodations (op­tions one and two).

178 AYP Each of the five assessment methods, or options, must result in achievement scores that can be used in calculating AYP, a goal for annual improve­ment that states, school districts, and schools must meet each year in order to reach NCLB 's requirement to demonstrate 100 percent student proficiency in reading and math by the year 2014.

179 In order to meet AYP, schools need to have a minimum of 95 percent participation of all students and all subgroups, meet the state pro­ficiency targets based on the number of proficient and advanced test scores, and meet at least one other "outside measure," as determined by the state.

180 One Percent Cap In calculating AYP for local educational agencies (LEAs) and the state, the scores received by students with disabilities taking alternate assessments based on alternate achievement standards figure into the AYP calculation as long as the number of those who score at the proficient or advanced level on those alternate achievement standards at the LEA and state levels, separately, does not exceed 1 percent of all students in the grades assessed in reading/language arts and mathematics."

181 Two Percent Cap In addition to the 1 percent cap, a 2 percent cap is based on the proficient and advanced scores of students with disabilities on the alternate assessment judged against modified achievement standards, "provided that the number of those scores at the LEA and at the State levels, separately, does not exceed 2.0 percent of all students in the grades assessed in reading/language arts and in mathematics.?"

182 Reporting Results of assessments are required to be reported to the public, to parents, and to federal agencies

183 Recommendations for Practice Be thoroughly familiar with your state assessment system including allowable accommodations, implications for graduation, and the consequences for exceeding the applicable caps related to the calculation of AYP.

184 Be thoroughly familiar with the state grade-level content standards and grade level achievement standards. Thoroughly understand the IDEA and NCLB assessment and accountability provisions. Because all students will be assessed based on grade- level content standards, ensure that all students with disabilities receive instruction that is aligned to grade- level content in reading and math even though the content may be reduced in breadth, depth, and/or complexity for some students."

185 Ensure that all IEP team members are thoroughly trained in the requirements of the statewide assessment system and the IEP decision making process for determining appropriate assessment options for students with disabilities.


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