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Update on Special Education Law

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Presentation on theme: "Update on Special Education Law"— Presentation transcript:

1 Update on Special Education Law
David B. Rubin, Esq. David B. Rubin, P.C Metuchen, NJ

2 True or False Parents may request an independent educational evaluation at any time.

3 True or False Districts can impose a flat dollar maximum on independent educational evaluations

4 True or False Districts have the prerogative to prohibit independent evaluators from recommending specific educational programs or related services.

5 True or False “Stay put” requires districts to maintain the same placement and program during the pendency of mediation or due process.

6 True or False A district’s unilateral change of placement from one school to another during the pendency of mediation or due process violates “stay put.”

7 True or False Once “stay put” takes effect, it remains in force only until the ALJ decides the case.

8 True or False A parent’s written objection to a proposed IEP within 15 days after IEP meeting will trigger “stay put.”

9 True or False Rutgers will beat Ohio State by 10

10 Agenda Independent Educational Evaluations “Stay Put” Dyslexia
Amendments to Special Education Code

11 Independent Educational Evaluations

12 20 U.S.C. § 1415(b) “Procedural Safeguards”
Types of Procedures The procedures required by this section shall include the following: (1) An opportunity for the parents of a child with a disability to obtain an independent educational evaluation of the child.

13 34 C.F.R. § (a) General. (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

14 (2) Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section.

15 (b) Parent right to evaluation at public expense.
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.

16 (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either-- (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

17 (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a [due process] hearing that the evaluation obtained by the parent did not meet agency criteria.

18 (3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

19 (4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either [providing the IEE or filing for a due process hearing.]

20 (5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

21 “Agency Criteria” (e)(1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.

22 (2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

23 USDOE Guidance Letters
Letter to LoDolce Letter to Parker Letter to Young Letter to [Redacted] Letter to Petska letters/revpolicy/tpiee.html

24 District criteria may include list of evaluators and cost parameters consistent with standards employed by District for its own assessments Must allow exceptions for unique circumstances Must provide criteria promptly

25 N.J.A.C. 6A:14-2.5(c) A parent may request an independent evaluation if there is disagreement with any assessment conducted as part of an initial evaluation or a reevaluation provided by a district board of education.

26 1. If a parent seeks an independent evaluation in an area not assessed as part of an initial evaluation or a reevaluation, the school district shall first have the opportunity to conduct the requested evaluation [SUPERSEDED BY NJDOE 5/14/12 LETTER]

27 2. Such independent evaluation(s) shall be provided at no cost to the parent unless the school district initiates a due process hearing to show that its evaluation is appropriate and a final determination to that effect is made following the hearing.

28 i. Upon receipt of the parental request, the school district shall provide the parent with information about where an independent evaluation may be obtained and the criteria for independent evaluations according to (c)3 and 4 below.

29 In addition, except as provided in (c)1 above, the school district shall take steps to ensure that the independent evaluation is provided without undue delay; or ii. Not later than 20 calendar days after receipt of the parental request for the independent evaluation, the school district shall request the due process hearing.

30 3. Any independent evaluation purchased at public expense shall:
i. Be conducted according to N.J.A.C. 6A:14-3.4; and

31 ii. Be obtained from another public school district, educational services commission, jointure commission, a clinic or agency approved under N.J.A.C. 6A:14-5, or private practitioner, who is appropriately certified and/or licensed, where a license is required.

32 Wall Twp. BOE v. C.M. (OAL 2007) Districts may not dictate the specific evaluator, but Districts may establish selection and cost criteria consistent with federal guidance letters, provided Criteria are provided to parents promptly upon request for the IEE

33 R.L. v. Gloucester Twp. BOE (OAL 2005)
Parents need not express disagreement with district’s evaluation in order to obtain reimbursement for an IEE after the fact, but An IEE at district expense is available only when there is disagreement with a district evaluation that has been conducted.

34 NJDOE May 14, 2012 Letter Conflict between federal regulation and state regulation regarding districts’ right to “first crack” at assessing that particular area Nothing in letter states intent to supersede earlier USDOE guidance or OAL case law re: district cost/qualification criteria generally





39 Recommendations in IEEs
“[E]valuators providing independent evaluations may include recommendations as to specific educational and related services, methodologies, programs or placements in their reports ” September 2004 NJDOE Memo

40 “Stay Put”

41 20 U.S.C. § 1415(j) [D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child . . .

42 N.J.A.C. 6A:14-2.7(u) If the decision of the administrative law judge agrees with the student's parents that a change of placement is appropriate, that placement shall be treated as an agreement between the district board of education and the parents for the remainder of any court proceedings.

43 What Triggers “Stay Put”?
Filing of due process hearing request or mediation Request Takes effect immediately Mere expression of disagreement with District proposal not sufficient

44 Unilateral Parental Placements
34 C.F.R. § No obligation to continue special education or related services after unilateral parental placement

45 Unilateral Parental Placements
Open question whether services voluntarily provided to unilaterally placed student can be withdrawn at will after parents file At least one ALJ has found that “stay put” applies

46 What If Parents Disagree But Don’t File?
District proposal shall be implemented 15 days after written notice if no mediation or due process hearing request filed (except for initial services where affirmative consent required) N.J.A.C. 6A:14.2.3(h)

47 What If Parents File After 15 Days?
May file up to two years later, but The placement implemented by the District after 15 days will generally be treated as the “stay put” placement

48 What Contitutes the “Current Educational Placment”?
Not defined in IDEA or state/federal regulations Does not mean identical placement or program Significant effect on learning experience

49 Examples Of Changes Found Not to Violate “Stay Put”
W.R. v. Union Beach BOE (D.N.J. 2009) Change from 1-1 to small group resource setting (2 teachers/six students) for language arts literacy

50 Examples Of Changes Found Not to Violate “Stay Put”
In re Educational Assignment of Joseph R. (3d Cir. 2009) Relocation from resource room to inclusions classroom

51 Examples Of Changes Found Not to Violate “Stay Put”
D.K. v. District of Columbia (D.D.C. 2013) Change from one private school to another Prior school unable/unwilling to implement IEP

52 Prior Placement Ceases to Exist
Must provide comparable program matching the prior setting as closely as possible Factors considered: type and level of service delivery, the degree of mainstream contact, the methodology and teaching approach, the staff-student ratio, the instructional and therapeutic expertise, the duration of direct and incidental teaching Agawam Public Schools 111 LRP 66091(SEA Mass

53 Prior Placement Ceases to Exist
Where District can’t meet burden of showing comparability May be exposed to reimbursement for unilateral placement by parents in the meanwhile

54 Part C to Part B Part C (State): Birth to 3, Early Intervention and Individual Family Service Plans (IFSPs)From birth to three years of age Part B (District): years of age (unless graduation), IEP

55 Part C to Part B 34 C.F.R (c): “… the public agency is not required to provide the Part C services that the child had been receiving.” No “current educational placement,” 71 Fed. Reg. 46,709 (2006); Letter to Zahorchak, 48 IDELR 135 (OSEP 2007)

56 Part C to Part B But Pardini v. Allegheny Intermediate Unit (3d Cir. 2005), held that “stay put” applies to Part C services Conflict with 34 C.F.R (c), which took effect after Pardini?

57 Turning 21/Graduation B.A.W. v. East Orange Bd. of Ed. (D.N.J. 2010): “Stay put” applies to forestall graduation until merits of case are decided Courts nationwide split on “aging out” at 21 – no definitive decision in this jurisdiction

58 Exception to “Stay Put” for 45-day IAES
When an appeal under § has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in § (c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise. 34 CFR

59 M.R. and J.R. v. Ridley School District (3d Cir. 2014)
How long does “stay put” remain in effect? Can District be required to reimburse for parents’ preferred “stay put” placement where court ultimately finds the District’s proposed program appropriate?

60 Parents unilaterally place child in out-of-District placement and file for due process
ALJ finds District’s program insufficient and awards reimbursement to parents District appeals to Federal District Court

61 While case pending before Federal District Court, parents make no request for reimbursement under ALJ’s order Federal District Court reverses ALJ, finding District’s program sufficient after all Parents appeal to Federal Appeals Court

62 Parents then seek reimbursement for the unilateral placement initially ordered by the ALJ, which they claimed became the “stay put” placement during the District’s appeal to the Federal District Court Federal District Court agrees with parents, and District appeals to Federal Appeals Court

63 Federal Appeals Court upholds the District Court’s finding that the District’s program was appropriate, but Also finds that “stay put” required the District to pay for the unilateral placement from the time of the ALJ’s decision not only through the District Court’s decision, but until the Appeals Court’s decision as well!!!

64 District seeking review by U.S. Supreme Court
Amicus Curiae groups lining up on both sides NASDSE and NSBA urging review

65 Implications of Ridley
Parents opposing a District change in placement can keep “stay put” in effect for years just by continuing to appeal, win or lose Districts can be required to continue paying for placements years after they’ve been found to be unnecessary

66 Dyslexia

67 N.J.S.A. 18A:46-55 1.    The State Board of Education shall promulgate regulations that incorporate the International Dyslexia Association’s definition of dyslexia into chapter 14 of Title 6A of the New Jersey Administrative Code. 2.    This act shall take effect immediately.

68 N.J.S.A. 18A:6-130 The Department of Education shall provide professional development opportunities related to reading disabilities, including dyslexia, to school district personnel. 

69 The professional development shall be made available to general education, special education, basic skills, and English as a second language teachers, instructional support staff, administrators, supervisors, child study team members, and speech-language specialists. 

70 The professional development opportunities shall be designed to account for the various manners in which different school district personnel interact with, or develop instructional programs for, students with reading disabilities.

71 N.J.S.A. 18A:6-131 The State Board of Education shall, as part of the professional development requirement established by the State board for public school teaching staff members, require certain teaching staff members to annually complete at least two hours of professional development instruction on the screening, intervention, accommodation, and use of technology for students with reading disabilities, including dyslexia. 

72 The professional development requirement established pursuant to this section shall apply to general education teachers employed in grades kindergarten through 3, special education, basic skills, and English as a second language teachers, reading specialists, learning disabilities teacher consultants, and speech-language specialists. 

73 A board of education may make the professional development opportunities available to other instructional or support staff as the board deems appropriate.

74 Public Law 2013, Chapter 210 Effective January 17, 2014
First applicable to , but Commissioner to take any necessary steps to prepare beforehand

75 Key Elements Defines “Potential indicators of dyslexia or other reading disabilities” -- N.J.S.A. 18A:40-5.1 Commissioner to distribute information re: screening instruments for districts to select from, as well as guidance on intervention strategies – N.J.S.A. 18A:40-5.2

76 Districts must ensure screening for any student exhibiting “potential indicators of dyslexia or other reading disabilities” no later than end of first semester of second grade – N.J.S.A. 18A:40-5.3(a) Provisions for new students first enrolling for in – N.J.S.A. 18A:40-5.3(b)

77 “Comprehensive assessment” required for any student with “potential indicators”
Must provide “appropriate evidence-based intervention strategies including intense instruction on phonemic awareness, phonics and fluency, vocabulary, and reading comprehension” – N.J.S.A. 18A:40-5.4

78 Proposed Changes to Special Education Code

79 Amendments to N.J.A.C. 6A:14 Published for comment in New Jersey Register (October 6, 2014) Reflect state/federal legal requirements

80 N.J.A.C. 6A:14-1.3 As required by P.L. 2013, c. 131, adopts the International Dyslexia Association’s definition of dyslexia as part of Chapter 14

81 N.J.A.C. 6A:14-2.3(a)(6) Requires that a one-time consent be obtained prior to accessing for the first time a child's or parent's public benefits or insurance, to conform to regulations recently issued by the United States Department of Education, 34 CFR § (d).

82 N.J.A.C. 6A:14-2.3(g)7iii and iv Procedural safeguards statement to be provided when a request for a complaint investigation is submitted to the Department and when a student is removed for disciplinary reasons and the removal constitutes a change in placement as described in N.J.A.C. 6A:14-2.8, to align with the Federal requirements set forth at 34 CFR §

83 N.J.A.C. 6A:14-2.5(c) Adds “upon completion of an initial evaluation or reevaluation ” to make clear when an IEE may be requested Adds language allowing a parent to obtain only one independent evaluation at public expense per initial evaluation or reevaluation

84 N.J.A.C. 6A:14-2.5(c) Requires parent to specify what assessment(s) is sought as part of the request for an independent evaluation Deletes the “first crack” language overruled by USDOE’s May 2012 memo

85 N.J.A.C. 6A:14-3.5 Aligns Code terminology with Rosa’s Law, which removed references to “mental retardation” from the IDEA and replaced it with “intellectual disabilities” E.g., replaces “cognitively impaired” and “cognitive impairment” with “intellectually disabled” and “intellectual disability”

86 N.J.A.C. 6A:14-3.5 Expands definition of “preschool child with a disability” to include a child with “an identified disabling condition, including vision or hearing, that adversely affects learning or development and who requires special education and related services” 34 C.F.R. § 3008(b) and (b)

87 N.J.A.C. 6A:14-3.7(c)4 Requires IEP teams to consider the consistency of the location of services when developing IEPs P.L. 2013, c.19, mandating consideration of consistency of the location, curriculum, and staffing for students who are prone to regression due to frequent changes in location

88 N.J.A.C. 6A:14-4.7(a)(2) Changes class age range for elementary classes from three years to four years. Implements July 26, 2007 Council on Local Mandates decision finding change from four to three to be an illegal unfunded mandate

89 Thank You! David B. Rubin, Esq. David B. Rubin, P.C. Metuchen, NJ

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