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Special Education Smorgasbord 2014 2014 MAASE Winter Institute Presented by LaPointe & Butler, P.C. Okemos, MI 48864 February 3, 2013.

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Presentation on theme: "Special Education Smorgasbord 2014 2014 MAASE Winter Institute Presented by LaPointe & Butler, P.C. Okemos, MI 48864 February 3, 2013."— Presentation transcript:

1 Special Education Smorgasbord 2014 2014 MAASE Winter Institute Presented by LaPointe & Butler, P.C. Okemos, MI 48864 February 3, 2013

2 PART ONE ADA=504 Plus More

3 ADA Goes Beyond FAPE One example we have already encountered=service animals The latest encounter=CART (Communications Access Realtime Translation) 9 th Circuit Court of Appeals decision in two consolidated cases interpreting Title II of the ADA. See, K.M. v. Tustin Unified School District, and D.H. v. Poway Unified School District, 61 IDELR 182 (9 th Cir., 2013)

4 Tustin and Poway K.M. and D.H. both students with hearing impairments. Parents in each case requested CART to assist student in following class discussion CART is word-for-word transcription, similar to court reporting, that provides real-time captioning that appears on a computer monitor. Districts denied, but offered other accommodations. Denial contested first in SE due process hearings, where districts prevailed (FAPE provided).

5 Tustin and Poway On appeal of the administrative decision to federal district court, the parents asserted that denial of CART request violated both IDEA and Title II of the ADA. In each case, the district court granted summary judgment to the school district, holding that the district had fully complied with IDEA and that the ADA claim was foreclosed by the failure of the parents’ IDEA claim.

6 Tustin and Poway On appeal to the 9 th Circuit, the parents did not dispute that the districts complied with IDEA, but asserted that the ADA Title II imposes effective communication obligations on public schools and that these obligations are independent of IDEA obligations 9 th Circuit agrees with parents and remands to federal district court for consideration of the merits of the ADA Title II claims.

7 Why? Nothing in IDEA and ADA that would suggest a mechanical relationship such that satisfaction of IDEA automatically controls ADA result. DOJ filed an amicus brief in Tustin in support of the parents’ interpretation of the relevant Title II regulations. The 9 th Circuit is according deference to the agency which has the responsibility for implementing Title II.

8 Why? IDEA Procedural standardsPrimarily provides parents with various procedural safeguards, including the right to participate in IEP meetings, to challenge an IEP in administrative proceedings/state or federal court. Supreme Court in Rowley described premise that compliance with procedures would assure what congress intended re substantive content of IEP. Substantive standardsReasonably calculated to enable the child to receive educational benefits. Not potential-maximizing. An access-centered standard.

9 Why? Title II Procedural standards Less elaborate procedural standards than IDEA Substantive standards 1.Has specific regulation entitled “effective communications” (28 CFR §35.160), which requires public agencies to: a.Take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. b.Furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, enjoy the benefits of, a service, program, or activity conducted by a public entity. 2.Title II defines auxiliary aids and services to include real-time computer-aided transcription services and videotext displays. 3.”In determining what type of auxiliary aid and service is necessary, a public agency shall give primary consideration to the requests of the individual with disabilities.” 4. Must take any action that would not result in fundamental alteration or undue financial/administrative burden that would ensure that to maximum extent possible individuals with disabilities receive benefits/services provided by entity.

10 PART TWO Emerging Trends with MDE and OCR

11 PART A MDE: Hot Topics

12 Hot Topic #1 Proposed MARSE Rules Package

13 MARSE Rules Package MDE submitted new proposed rules package on December 10, 2013. No dates set for public comment yet. MDE projecting February or March. Online public comment. Why change? MDE says: To align MI evaluation process with the process defined in IDEA. To separate evaluation, determination of evaluation and development of IEP activities. To clearly distinguish between procedures that must be followed for public school students and non-public school students. To improve student outcomes and compliance by increasing focus on student evaluation.

14 Hot Topic #2 Lessons Learned from State Complaints

15 Trends – At A Glance State Complaints 2011-12 2012-13 Due Process Complaints 2011-12 2012-13 Number & Type2452747686 ComplainantsParent 197 MPA 35 Other 13 Parent 216 MPA 38 Other 17 Parent 73 District 3 Parent 77 District 9 Dismissed17 1112 Withdrawn67805453 Final Decision Issued160172119 (2 pending) Allegations/District Found Noncompliant 763/317 42% 701/308 44% 41/22 54% 25/11 44% Expedited/appeal MDRN/A1521 * As reported by MDE at Fall Forum November 2013

16 2012-2013 Top Ten State Complaint Issues 1.IEP Implementation 2.IEP Content 3.Discipline 4.Notice 5.Evaluations 6.Child Find, IEP Participants and Records 7.Independent Educational Evaluations 8.Behavior Intervention 9.Annual IEPs 10.Consent

17 Top 5 State Complaint Issues: Lessons Learned IEP Implementation: If you promise it, you must deliver it. “As needed” without more is not sufficient. Document! Document! Document! IEP Content: Measureable goals and objectives are: based on data aligned with the needs identified in the PLAAFP Discipline: Keep track of days of removals. Conduct timely MDRs. Provision of FAPE IEP Team determines the IAES.

18 Top 5 State Complaint Issues: Lessons Learned, continued Notice: Should include those options considered but not selected by the IEP Team. Reasons for refusal of requested service or program should be included. Should be timely provided. Evaluations: No late evaluations. Don’t take the “ostrich” in the sand approach.  Discuss and evaluate ALL areas of suspected disability.  Don’t ignore a verbal request for an evaluation.

19 PART B OCR(Cleveland): Hot Topics

20 OCR Jurisdiction Title VI of the Civil Rights Act of 1964 Title IX of the Education Amendments of 1972 Section 504 of the Rehabilitation Act of 1973 Age Discrimination Act of 1975 Boy Scouts of America Equal Access Act of 2001

21 Again: It’s Not Just About Complying with §504 & the IDEA By agreement with DOJ, OCR enforces Title II of the Americans with Disabilities Act (“ADA”) in the school context. OCR processes complaints containing allegations that fall under both Section 504 and Title II of the ADA as dual Section 504/Title II Complaints. To the extent that Title II standards provide greater protection than Section 504, OCR will apply those standards.

22 OCR HOT TOPIC # 1 Equal Access to Programs and Services

23 Tuition Enrollment Programs Middle school student enrolls in neighboring district through tuition enrollment program for 2010-2011 school year. February 2011, student evaluated and found IDEA eligible. Per district policy, students with IEPs were not eligible for enrollment through tuition program. March 2011, district notifies parent that, absent a cooperative agreement with resident district, student cannot continue enrollment. Resident district would not agree to enter into cooperative agreement.

24 Tuition Enrollment Programs, cont. District ultimately allows student to continue enrollment through tuition program, provided parent pays the requested tuition. Parent refuses to pay tuition bill and files complaint with OCR alleging disability discrimination. As a result of investigation, OCR determines: District’s tuition enrollment policy discriminates against students with disabilities who have IEPs. District’s asserted rationale failed to articulate a legitimate, nondiscriminatory reason for policy because: District had already made exceptions to policy. Michigan law does not mandate such a policy.

25 Tuition Enrollment Programs, cont. To resolve OCR’s compliance concerns, the district agreed to: offer tuition enrollment on the same terms it offered to students without disabilities. revise its tuition enrollment policy to ensure an equal opportunity for students with disabilities to participate. provide public notice of the revised tuition policy.

26 Some Thoughts on Implications Be consistent in application of policies. Be mindful of policies that limit or deny access of students with disabilities to programs and services. Even if policy is not limiting or denying access solely because of disability, OCR may find policy discriminatory. Reliance on state law is NOT an absolute defense to a disability discrimination claim, according to OCR. See also Lewis v Humboldt Acquisition Inc., 681 F3d 312 (6 th Cir 2012).

27 OCR HOT TOPIC # 2 Personal Curriculum

28 Study requested by State Education Advisory Committee (SEAC) Concern with number of calls from parents of students with disabilities regarding PC process and discrepancies with implementation U of M Research

29 U of M Research – Implementation of Personal Curriculum

30 Let’s Look at the Data Total Percentage of Students Statewide with a Personal Curriculum 2010-2011 2011-2012 Total Number of Students Statewide with a Personal Curriculum 2010-2011 2011-2012.73%.79%3,8844,140

31 Distribution of PCs 2011-12 Total Number of Districts Statewide Reporting Personal Curriculum Implementation 120 Percentage of Districts Statewide Reporting Personal Curriculum Implementation 13.84% Total Number of ISDs Statewide Reporting Personal Curriculum Implementation 42

32 Type Personal Curricula by Type 2011-12 2012-2013 Algebra II Modification (non-IEP)911 (20.42%)1,237 (26.02%) Modification with IEP (Mathematics) 776 (17.39%)800 (16.83%) Modification with IEP (other than Mathematics) 284 (6.36%)384 (8.08%) Transfer student25 (0.56%)38 (0.80%) Enrichment Modification (PE/Health) 1,724 (38.64%)1,680 (35.34%) Enrichment Modification (other than PE/Health) 742 (16.63%)615 (12.94%) Total Number of Modifications4,4624,754

33 OCR and PC: A Cautionary Tale Student with learning disability and extensive absenteeism due to multiple heart surgeries having difficulties progressing in Michigan Merit Curriculum. When he was in 9 th grade, district moved student from diploma to certificate track Staff thought about a personal curriculum but decided against because new and did not understand if could be used in this situation Did some paperwork for homebound, but services were time-limited

34 A Cautionary Tale, continued Fall-out District staff did not really understand the consequences of certificate track as no clear State definition of requirements to complete it By senior year student had 17 elective and 2 MMC credits Parent filed complaint with OCR alleging that she was not informed that student placed on certificate track until student’s senior year Sought readmittance to diploma track

35 A Cautionary Tale, continued In taking the complaint, OCR determined existence of “extraordinary circumstances” that these circumstances justified the unusual step of exercising its jurisdiction to review the substance of the district’s placement decisions As a result of its investigation, OCR concluded that the district had committed a number of 504/ADA Title II violations.

36 A Cautionary Tale, continued To resolve OCR’s compliance concerns, the district agreed to: 1.Consider whether students would benefit from a PC before determining that they be placed on a certificate track. If at any stage it is determined that a SWD would not benefit from a PC, this determination is to be documented in the student’s educational file and communicated to the student’s parent/guardian within 15 school days from that determination.

37 A Cautionary Tale, continued To resolve…the district agreed to: 2.Conduct reviews of all SWDs placed on certificate tracks to ensure that not being denied an equal opportunity to participate in the diploma track, including Consideration of the nature and severity of the student’s disability. Documentation of the reasons why certain students are not being considered for diplomas. Documentation of any services and modifications, such as PCs, to ensure SWDs are being given an equal opportunity to earn a diploma as appropriate.

38 A Cautionary Tale To resolve…the district agreed to: 3.Provide training to all district secondary school administrators, counselors, psychologists and school social workers regarding PC development for SWDs 4.Offer the student the option to return to the district in its diploma track program, including a reevaluation, revised IEP to address all academic areas and aids and services necessary for FAPE, including services to address disability- related absences, a new EDP and course plan, and a counselor convened PC team to determine if a PC can be developed for the student. 5.Convene IEPT meeting to address comp ed.

39 Some thoughts re IEP processes IEP invite notice of “course of study” discussion IEP Prep=  Data for consideration of course of study  Information for processing course of study question  Diploma criteria  Default MMC  PC modification option  Certificate criteria Notice of options considered and not selected relative to course of study

40 Some thoughts re PC processes Decision rules are critical to PC decision making Lack of decision rules affects  Staff  Students

41 Staff Impact PCDT will get PTSD PCDT decisions at risk of Subjectivity Inconsistency

42 Student Impact: Under-granting diplomas Barrier to completing Career Pathway FAPE and equal opportunity issues Over-granting diplomas Graduation with regular high school diploma is eligibility terminating event Due process hearing requests seeking comp ed

43 PART THREE IDEA Goes A Courting

44 PART A Guardianship Evaluation Requests and IDEA Reevaluations

45 What constitutes a reevaluation? Any SE evaluation after the initial: –If the situation warrants, e.g., information needed for IEP revision, suspect another disability or that no longer special education eligible  Parent or teacher request  Limitation: may not occur more than once per year, unless parent and district agree otherwise –At least once every three years to assist in the redetermination of IDEA eligibility, unless the parent and district agree that a reevaluation is unnecessary

46 What evaluation requests would not constitute an IDEA reevaluation? The evaluation is not for special education purposes, but rather for other agencies, institutions, or processes –Vocational rehabilitation agencies –Colleges and universities –Guardianship proceedings

47 USDOE discussion “We do not believe that the [IDEA] regulations should require public agencies to conduct evaluations for children to meet the entrance or eligibility requirements of another institution or agency because to do so would impose a significant cost on public agencies that is not required by the Act.” FR Vol. 71, No. 156, p.46644, column 3 (August 14, 2006).

48 The Guardianship Conundrum School psychologist evaluations and testimony are frequently sought –regarding data required on the court form “Report to Accompany Petition to Appoint, Modify or Discharge Guardian of Individual with a Developmental Disability. –but report includes some areas of evaluation and/or opinion outside of the scope of activities, including SE evaluations, authorized by federal, state and local special education funding sources. These authorities do not authorize/require SE evaluators to conduct Mental Health Code guardianship evals.

49 The Guardianship Conundrum However, some information derived from a student’s special education evaluations may be pertinent to –A description of the nature and type of disability –Mental, social skills, educational, adaptive data, depending on the nature of the disability


51 Recent call from Parent Advocate Concerned about CASA inviting self to IEPT meeting Described role as being the “eyes and ears” of the court

52 What is a CASA? CASA is the acronym for Court Appointed Special Advocate Judges are authorized to appoint under Michigan Court Rule 3.917

53 The Parameters of Rule 3.917 HeadingDescription GeneralCourt may, upon entry of an appropriate order, appoint a volunteer special advocate to assess and make recommendations to the court concerning the best interests of the child in any matter pending in the family division. QualificationsMust receive “appropriate screening.” (No details given.) Duties1. Regular contact with the child 2. Investigate the background of the case 3. Gather information regarding the child’s status 4. Provide written reports to the court and all parties before each hearing 5. Appear at all hearings when required by the court Term of Appointment Serves until discharged by the court Access to Information Upon appointment by the court, may be given access to all information, confidential or otherwise, contained in the court file if the court so orders. The special advocate shall consult with the child’s lawyer-guardian ad litem.

54 CASA and Access Issues IEPT meeting CASA not on mandatory invitee list Both parent and district have the right to invite persons with knowledge or special expertise Educational record information (record or information contained in record) Parent consent Exceptions to parent consent requirement? e.g., Judicial order or lawfully issued subpoena Does CASA appointment order or subsequent order or subpoena cover?

55 PART C Circuit Court, Juvenile Probation & You

56 MPAS Letter addressed to Family Division and Juvenile Workers “[MPAS] will be sponsoring a day-long training entitled: KEEPING KIDS IN SCHOOL – Are Your Child’s Behavioral Problems in School Due to a Disability?” MPAS has and continues to advocate that violations of code of conduct and/or criminal conduct are a per se basis for suspecting a disability, eligibility and/or proof of a substantive denial of FAPE.

57 Juvenile Probation Unit JPU is responsible for all delinquency cases. They assist the case through the adjudication process, when necessary. Once a case has been adjudicated, a caseworker prepares a social history report. This report makes recommendations to the court regarding disposition, taking into account both the needs of the child and protection of the community. Post-disposition, JPU assists in implementing court orders, including the monitoring of probation and parental education, counseling, etc. JPU also monitors client compliance or noncompliance with court orders, and report to the court on a regular basis, making further recommendations when necessary.

58 Mental Health Court Cooperative venture between the Circuit Court, District Court, CMH, Sheriff’s Department, City Attorney’s Office and County Prosecutor. Goal is to divert into long term mental health treatment mentally ill individuals who have been charged with a civil or criminal offense that meets the eligibility criteria. SCAO and MDCH have established a collaborative partnership to provide funding assistance for pilot mental health courts through a grant program. Currently operating in 16 Counties.

59 Eligibility & Mental Health Court Axis I diagnosis of Schizophrenia, Schizoaffective disorder or Bipolar Affect by a licensed and qualified mental health professional; At least 17 years of age; Defendant agrees in writing to participate and cooperate with the program; Defendant acknowledges in writing willingness to take medication; Defendant must have the capacity to understand the requirements of the Mental Health Court, consequences for failure to follow those requirements and ability to comply with terms of probation; Defendant must not pose an unacceptable risk of harm to staff or the community; Approved by prosecuting authority.

60 Eligible Offenses Felonies at the district court level and misdemeanors. Some violent offenses with the consent of the victim. The offenses of murder, treason, criminal sexual conduct in the 1st and 3rd degree, armed robbery or major control substance are excluded.

61 Working with the Court 16-year-old student diagnosed with ADHD, Intermittent Explosive Disorder & ODD. Poor attendance, suspended from school for loitering, disrespect and repeated violations of student code of conduct. Under the jurisdiction of the Circuit Court, Family Division and the Probate Mental Health Court as a result of ongoing probation. Found ineligible by the LEA as CI or OHI. Under advice of the court-affiliated “Special Education Advocate,” Parent refused development of a 504 Plan.

62 Working with the Court, cont. Based on the report of the “Special Education Advocate,” the guardian ad litem, Judge and the Student’s Mental Health Team requested a meeting with the IEPT to discuss the ineligibility determination. As a result of the meeting, the IEPT agreed to reconvene to reconsider the prior ineligibility determinations. The “Special Education Advocate” and the guardian ad litem agreed to delay reconsideration pending the outcome of requested IEEs. In the interim, based on further discussion with the IEPT, the Parent consented to development and implementation of a 504 Plan.

63 Attorney / Guardian Ad Litem for a Minor GAL serves as the “eyes and ears” of the Court. Duties vary depending on the particular proceedings. Court may appoint an attorney to represent the minor if at any time in the proceeding the Court determines the interests of the minor are or may be inadequately represented. Typically the best avenue to communicate, coordinate and work with the Court.

64 PART FOUR District “Interfaces” with Implementation of Michigan Autism Insurance Benefits

65 Special Education Birth to graduation with regular diploma or other appropriate transition exit, not to exceed age 26 Based upon comprehensive evaluation with eligibility determined as defined in MARSE Component of IFSP for MARSE eligible infants and toddlers Component of IEP for MARSE eligible students

66 Michigan Autism Insurance Benefits Components Private Insurance Medicaid and MIChild NOTE: Autism Insurance Benefit to supplement, NOT supplant IDEA obligations

67 Private Insurance Coverage State Regulated Insurance Mandatory coverage (reimbursed by State) for eligible 0-18 year olds Based on medical diagnosis of ASD using ADOS Parent initiates eligibility determination process by contacting insurance company’s behavioral health representative Self-Funded Insurance Voluntary coverage

68 Private Insurance ASD Treatment Behavioral health treatment evidence-based counseling and treatment programs, including ABA Pharmacy care Psychiatric care Psychological care Therapeutic care

69 Medicaid and MIChild Coverage Coverage: 18 months – 6 th birthday Eligibility for ABA intervention a 4-step process, including use of ADOS-2 and developmental history (e.g., ADI-R) ASD diagnosis by child mental health professional (CMHP) via CMH Independent evaluation by CMHP applying needs-based criteria for ABA Independent assessment for ABA intensity Medicaid agency makes final ABA service determination

70 Medicaid & MIChild ABA Services Early Intensive Behavioral Intervention (EIBI) Applied Behavioral Intervention (ABI) For children with Dx of 299.0 Autistic Disorder For families declining DTT, or children with Dx of Asperger’s or PDD-NOS Discrete Trial Training methods (DTT) Comprehensive behavior intervention plans, incidental teaching, naturalistic teaching, pivotal response treatment, peer training, modeling, schedules, story- based intervention packages, and/or other ABA ‘established treatments that focus on teaching specific adaptive skills Typically provided several hours/day, 5-7 days/week (an average of 10-20 hrs/wk) for 2-3 years. Provided an average of 5-15 hrs/week Used for reducing intrusive, disruptive, stereotypic behaviors, and improving socially acceptable behaviors and communication skills Used to increase functional, self-care, receptive/expressive language, play, social skills, imitation, to enable child to integrate more readily with typically developing peers.

71 IFSP-based AIB issues Medicaid and MIChild AIBs Michigan Department of Community Health signatory to the State Part C Interagency Agreement an Early On “early intervention service provider” Impact on IFSP development? If child is Part C eligible and suspect that might be eligible for Medicaid & MIChild AIB discuss with parent steps to support pursuing, and list in “Other supports and Services”. If child eligible for ABA intervention and has a prioritized IFSP outcome that necessitates such intervention, would list on EIS page.

72 IFSP AIB Issues Private Insurance treatment benefits Steps to support pursuit of would be listed in “Other Supports and Services” If child determined eligible and receives ABA treatment services, would list under “Other Supports and Services.”

73 Transition from IFSP to IEP Considerations Is child who receives AIB services Part C-only eligible? What is the parent’s vision for the child post- Part C? Add special education (MARSE/Part B eligibility) Continue with AIB services, but no special education Develop Part C Transition Plan that supports parent vision for child

74 IEP Considerations IEP “wrinkles” -- Requests that… district formulate reduced day IEP/program to allow AIB to be provided during school day list AIB services in the IEP allow provision of AIB services in the school setting staff implement AIB-related protocols in the classroom ABA therapist “observe” in the classroom non-AIB ABA be added as an IEP service

75 Stay Tuned to MAASE ASD CoP

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